[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
STATE OF RELIGIOUS LIBERTY IN
THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 10, 2014
__________
Serial No. 113-75
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
U.S. GOVERNMENT PRINTING OFFICE
88-241 PDF WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
MARK AMODEI, Nevada JOE GARCIA, Florida
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia JERROLD NADLER, New York
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida HENRY C. ``HANK'' JOHNSON, Jr.,
JASON T. SMITH, Missouri Georgia
TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
----------
JUNE 10, 2014
Page
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 6
WITNESSES
Mathew Staver, Dean and Professor of Law, Liberty University
School of Law, Founder and Chairman, Liberty Counsel, and
Chairman, Liberty Counsel ACTION
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Kimberlee Wood Colby, Director, Center for Law and Religious
Freedom, Christian Legal Society
Oral Testimony................................................. 49
Prepared Statement............................................. 51
Rev. Barry W. Lynn, Executive Director, Americans United for
Separation of Church and State
Oral Testimony................................................. 77
Prepared Statement............................................. 79
Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom
Oral Testimony................................................. 98
Prepared Statement............................................. 100
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 131
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 132
Material from the Anti-Defamation League (ADL) submitted by the
Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 134
STATE OF RELIGIOUS LIBERTY IN
THE UNITED STATES
----------
TUESDAY, JUNE 10, 2014
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 3:10 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Goodlatte, Chabot, Forbes,
King, Gohmert, DeSantis, Smith, Cohen, Conyers, Nadler, Scott,
Johnson, and Deutch.
Staff Present: (Majority) John Coleman, Counsel; Tricia
White, Clerk; (Minority) James Park, Minority Counsel; and
Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order. Without objection, the Chair is
authorized to declare recesses of the Committee at any time.
Good afternoon, ladies and gentlemen, and thank you for all
being here today. Today, the Subcommittee will examine the
state of religious liberty in America. This continues a
tradition of this Subcommittee holding a hearing on this topic
each Congress. And I will now recognize myself for 5 minutes
for an opening statement.
Thomas Jefferson once said, ``The constitutional freedom of
religion is the most inalienable and sacred of all human
rights.'' Religious liberty is our first freedom. It is the
cornerstone of all other human freedoms. The Bill of Rights
passed by the first Congress included protections for religious
freedom because without religious liberty and freedom of
conscience all other liberties cease to exist. Indeed,
religious liberty is the wellspring of our other liberties and
the defining statement of freedom in America.
This belief is something that has set America apart from
all other nations since the Declaration of Independence
declared nearly 240 years ago that we hold it a self-evident
truth that all men are created equal.
Ladies and gentlemen, the foundational and quintessential
premise of America is that we are all created children of God
equal in his sight and that we are endowed by our creator with
the unalienable rights of life, liberty, and the pursuit of
happiness. America's founding premise is itself an intrinsic
expression of religious conviction.
Consequently, the Obama administration's flippant
willingness to fundamentally abrogate America's priceless
religious freedom in the name of leftist social engineering is
of grave concern to me and should be to all of us.
The most egregious examples from the administration include
their concerted effort to force religious minorities, like the
Little Sisters of the Poor, to purchase abortifacient drugs and
contraceptives. With breathtaking arrogance, this
administration also told the Supreme Court 2 years ago in the
Tabor case that government should have a say in deciding who
could be a pastor, priest, or rabbi--in short, who could preach
and teach religion. This was unanimously rejected by the
Supreme Court as untenable and extreme.
This administration seems to casually ignore the historical
fact that religious liberty involves much more than freedom of
worship alone and that fundamental rights of free speech and
the free exercise of religion do not stop at the exit door of
your local house of worship, but indeed extend to every other
area of life. The so-called anti-discrimination policies that
make no exception for religious beliefs threaten religious
liberty. For most religious groups, public service is an
essential 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 else
in the world to help them.
Those who refuse to respect the public component of
religious liberty and fail to accommodate religion in our
generally applicable laws are putting many innocent people, as
well as the religious freedom that undergirds America, in grave
danger. Oftentimes religious freedom is suppressed in the name
of ``a strict wall of separation between church and state.''
Now, while that phrase did appear prominently in the Soviet
constitution, it appears nowhere in the United States
Constitution, and the profound historical misrepresentation of
that phrase by the secular left leaves me without adequate
expression.
Some time ago a Marxist economist from China was coming to
the end of a Fulbright fellowship in Boston. When asked if he
had learned anything that was surprising or unexpected, without
hesitation he said, ``Yeah. I had no idea how critical religion
is to the functioning of democracy.''
Ladies and gentlemen, it bears careful reflection that many
men and women have died in darkness so that Americans could
walk in the light of religious freedom. They gave all they had
because they knew that religious freedom is critical to the
survival of all other freedoms. It is so very important for us
now and always to resist this ubiquitous effort by the secular
left to do away with religious freedom in America as they have
successfully done in so many other parts of the world.
In America, every individual has the right to religious
freedom and First Amendment expression so long as they do not
deny the constitutional rights of another. True tolerance does
not mean that we have no differences. It means that we are
obligated as members of the human family to be kind and
respectful to each other in spite of those differences,
religious or otherwise.
I would like to again thank our witnesses for being here,
and I look forward to hearing from them about some of the
unique challenges now facing this cornerstone of freedom in the
United States. And I would now yield to the Ranking Member, Mr.
Cohen, for an opening statement.
Mr. Cohen. Thank you, Mr. Chair.
Religious freedom is indeed a fundamental pillar of
American life. Whatever one's religious belief, our
Constitution enshrines the notion that the government remain
neutral with respect to religious belief, neither favoring one
religion over others, nor favoring religious beliefs over
nonbelief.
Our constitutional statutes also require that the
government not substantially burden the free exercise of
religion absent a compelling interest and a less burdensome
means of meeting that interest. In expounding upon the meaning
of these constitutional provisions, Thomas Jefferson wrote in a
letter to the Danbury Baptist Association in 1802, ``I
contemplate with sovereign reverence that act of the whole
American people which declared that their legislature should,
'make no law respecting an establishment of religion or
prohibiting the free exercise thereof,' thus building a wall of
separation between church and state.''
Jefferson was a deist who strongly believed in each man and
woman, at least White men and women, or at least White men,
having certain rights, and inscribed at the Jefferson monument
is a saying of his that says, ``I swear upon the altar of God
eternal hostility over all forms of hostility over the mind of
man.'' Indeed men should be able to practice and women practice
religion, but not have any thoughts superimposed upon them.
You know, when our country started, it's a great country,
but we really didn't get started on the idea that all men are
created equal because we had slavery until President Lincoln in
the Emancipation Proclamation and then the 13th Amendment said
no more. Up to then, if you were black, you weren't created
equal, and if you were a woman, you really weren't either
because you didn't have a right to vote really in this country
till about the 1920's. Took a long way for our country to
evolve, and we are doing the same thing with religious freedom.
All of these things in the Constitution, they're wonderful, but
they're evolving, and we learn as things change.
Some religions might say, or people say, because of their
religion, they have to have peyote on a regular basis, and you
have to figure how we should deal with that. And some religions
might even think that being gay is something that they should
be discriminatory against and that that's an evil, but our
society is evolving on people's sexual orientations, too.
Religious freedom is very fundamental and it's protected in
the First Amendment of the Bill of Rights, but Jefferson talked
about constitutions not being sanctimonious documents, but like
a child who grows and changes his clothes with times as it gets
larger and grows and matures, that constitution should change
as times change and people look upon it. So we can't just say
the Founding Fathers said this, and then there were 10
commandments, and thou shalt honor thy God and mother and
father and not commit adultery and not kill and all those
things, just maybe a few others come along.
It is also why I was the sponsor, all these things, I was
the sponsor of Tennessee's Religious Freedom Restoration Act
back in January 1998, so this is nothing knew to me, when I was
a senator. Like the Federal RFRA, the Tennessee RFRA protects
religious liberty by ensuring that any government action that
substantially burdens the free exercise of religion is
prohibited unless there is a compelling state interest.
Tennessee's RFRA, like the Federal RFRA, seeks to strike a
balance between the fundamental right to practice one's
religion free from government interference and the ability of
the government to perform its basic duties, including the
protection of public health and safety and fighting
discrimination. So if a religious groups says, we can't do
certain things for our employees because of our religion, there
has to be a compelling interest to show the difference. Or
maybe something about gays.
Any discussion of religious liberty must also include a
discussion of the threats, both government and nongovernmental,
to members of minority religions. As Reverend Barry Lynn, one
of out witnesses, notes in his written testimony, a Muslim
congregation in Murfreesboro, Tennessee, faced intimidation and
threats of violence from the local community when it attempted
to construct a new mosque. While the mosque ultimately was
built, the legal fight over its construction ended only
recently at a great cost to the congregation for a fight that
it should never have had to fight. And we have things in New
York like that, too, with a mosque and a community center not
far from 9/11.
Unfortunately, this is only one of many instances that
reminds me the Bill of Rights' fundamental purpose is to
protect the minority, the unpopular, and the nonmainstream from
majority tyranny. When one's right to free exercise of religion
ends and a majority tyranny begins will be the crux of our
discussion today.
Seven years ago this Committee heard from Monica Goodling,
who at the time had just resigned as the Justice Department
official, I think, dealing with personnel matters, concerning
hiring there during the Bush administration. Ms. Goodling was a
graduate of Regent University School of Law. According to its
Web site, it seeks to provide legal training ``with the added
benefit of a Christian perspective through which to view the
law,'' something I don't really know what that perspective
might be. What's different from a Christian perspective and a
Judeo-Christian perspective or a conservative perspective or a
liberal perspective or an American perspective?
But there was evidence at the time Ms. Goodling and others
screened job candidates for career positions at the Justice
Department based on their religious and partisan affiliations.
She denied it when asked, but it stands to reason religious
belief could have played a definite role in her hiring
policies. A religious litmus test for public office or for
career public service positions has no place in a society that
values religious liberty.
More broadly, attempts to remake our Nation's longstanding
political and legal culture so as to give already dominant
religious groups more of a coercive power of government must be
confronted, for if such attempts are successful the outcome
would present a threat to a free society and ordered liberty
and a government that can fundamentally provide a system, a
network of systems that protects its citizens through health
and welfare and other bases.
I look forward to our discussion and appreciate the
Constitution.
Mr. Franks. And I thank the gentleman.
And I would now yield to the Ranking Member of the
Committee, Mr. Conyers from Michigan, for his opening
statement.
Mr. Conyers. Thank you, Chairman Franks.
Members of the Committee and our distinguished witnesses,
religious freedom was one of the core principles upon which our
Nation was founded. The First Amendment protects this
fundamental freedom through two prohibitions: The Establishment
Clause prohibits the Federal Government from issuing a law
respecting the establishment of religion and the Free Exercise
Clause prohibits the government from affecting the free
exercise thereof. And so when discussing the government's
compliance with these prohibitions, we should keep in mind
several considerations.
To begin with, the real threat to religious liberty is
continuing religious bias or intolerance against the members of
minority religions. For example, the American Muslim
communities across the United States since September 11, 2001,
have been targets of often hostile communities and sometimes
even government actions. There have been numerous well-founded
complaints of religious profiling by Federal, State, and local
law enforcement agencies. In fact, bills have been introduced
in Congress as well as in various State legislatures targeting
Islam. It was recently reported that the Transportation
Security Agency is using a behavioral detection program that
appears to focus on the race, ethnicity, and religion of
passengers.
As many of you know, I represent Detroit, the home of one
of America's largest Muslim communities, so I'm particularly
disheartened by the overt challenges these communities face.
Targeting American Muslims for scrutiny based on their religion
violates the core principles of religious freedom and equal
protection under the law. All Americans, regardless of their
religious beliefs, should know that their government will lead
the effort in fostering an open climate of understanding and
cooperation.
Yet, in the name of religious freedom, we cannot undermine
the government's fundamental role with respect to protecting
public health and ensuring equal treatment under the law.
Currently pending before the United States Supreme Court are
two cases, the Sebelius v. Hobby Lobby Stores and Conestoga
Wood Specialties v. Sebelius, that will hopefully clarify this
issue. The issue in those cases is whether the government can
require for-profit corporations that provide group health plans
for their employees to provide female employees with plans that
cover birth control and other contraceptive services as
required by the Affordable Care Act, notwithstanding the
religious objections of the corporation's owners to
contraceptives.
Along with 90 of my colleagues in the House, I filed an
amicus brief in these cases disputing the claim that corporate
plaintiffs are persons for the purposes of the Free Exercise
Clause. Corporations are not people. And even if they are
capable of having religious beliefs, these corporations aren't
entitled to relief under the Religious Freedom Restoration Act.
Moreover, the Affordable Care Act's mandate, we argue, serves
two compelling governmental interests--namely, the protection
of public health and welfare and the promotion of gender
equality--that outweigh whatever attenuated burden the mandate
might place on the corporation's free exercise of rights.
And finally, as even some of the majority witnesses
acknowledge, the Obama administration's enforcement efforts
with regard to protecting religious freedom in the workplace
and elsewhere are to be commended. On various fronts, the
administration, to me, has striven to take a balanced approach
to this issue. For example, it added a religious employer
exemption to the HHS contraceptive mandate in response to
objections from religious employers. These efforts ensure that
America continues to foster a safe and welcoming environment
for all religious practices and communities without sacrificing
our other freedoms and needs.
And I thank the Chair for allowing me to conclude this
statement. I yield back.
Mr. Franks. And I thank the gentleman.
And I now yield to the Chairman of the Judiciary Committee,
Mr. Goodlatte from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman.
The religion clauses of the First Amendment of the United
States Constitution state, ``Congress shall make no laws
respecting an establishment of religion or prohibiting the free
exercise thereof.'' Since the birth of our Nation, the central
question regarding the religious liberty has been the degree to
which religion and government can coexist.
Indeed, the Founding Fathers feared the effect of
government on the free exercise of religion. In a letter dated
June 12, 1812, to Benjamin Rush, John Adams stated that
``nothing is more dreaded than the national government meddling
with religion.'' This dread has resurfaced amidst the current
administration's policies that ignore and are often hostile to
the religious protections afforded by our Constitution.
Many regulations fail to accommodate Americans' religious
beliefs. Others seek to single out religion for adverse
treatment. From the HHS mandate to the infringement on the
freedom of churches and other religious groups to choose their
ministers, Americans' religious liberties seem to be under
constant attack today.
In an effort to reaffirm the protections provided by the
First Amendment, I supported the bipartisan effort to pass the
Religious Freedom Restoration Act. The Federal Government must
provide religious accommodation in our laws, and any laws
passed that infringe upon religious freedom must be subject to
the strictest scrutiny in our courts. My hope today is that
this hearing will explore whether our Federal Government is
complying with the constitutional and statutory protections
afforded to all faiths.
And while religious liberty remains threatened, I am
nevertheless encouraged by recent Supreme Court decisions that
safeguard it. Last month, for example, the Supreme Court upheld
legislative prayer in the May 5, 2014 decision Town of Greece
v. Galloway. The court held that a municipality did not violate
the establishment clause when it opened its meetings with
prayer consistent with the traditions of the United States. I
am glad that the long-held tradition of prayer remains ever
strong in our State and local governments, as well as in
Congress.
In 2012, the Justices of the Supreme Court unanimously
rejected the Federal Government's argument in Hosanna-Tabor.
Astonishingly, the administration's lawyers argued in that case
that the First Amendment had little application to the
employment relationship between a church and its ministers. The
court stated that requiring a church to accept or retain an
unwanted minister or punishing a church for failing to do so
intrudes upon more than a mere employment decision. The court
described the administration lawyer's position as extreme. I
hope that the Supreme Court will continue to protect religious
liberty in the future, including later this month when it
issues its opinion in the HHS mandate case.
I want to thank all of our witnesses for coming today to
testify, and I extend a special welcome to a constituent of
mine, Mat Staver, who is coming from Lynchburg, Virginia, today
to testify. As a founding member and chairman of Liberty
Counsel, Mat is a passionate defender of the Constitution and
religious liberty. He is also working to educate future legal
minds as dean of Liberty University's law school.
Welcome, Mat. I look forward to your testimony today and to
that of all of our witnesses.
And, Mr. Chairman, thank you, and I yield back my time.
Mr. Franks. And I thank the gentleman.
And without objections, other Members' opening statements
will be made part of the record.
I will now introduce our witnesses. Our first witness is
Mathew Staver, dean of Liberty University School of Law. In
1989, Dean Staver became the founder, president, and general
counsel of Liberty Counsel and currently serves as chairman of
the board. Dean Staver has authored more than 10 books, written
several hundred articles on religious freedom and
constitutional law, and has published 10 law review and journal
articles. In addition to writing numerous appellate briefs, he
has argued twice before the United States Supreme Court.
And welcome, Mr. Staver.
Our second witness is Kim Colby, senior counsel for the
Christian Legal Society's Center for Law and Religious Freedom,
where she worked for over 30 years to protect students' rights
to meet for religious speech on college campuses. Ms. Colby has
represented religious groups in several appellate cases,
including two cases heard by the United States Supreme Court.
She has filed numerous amicus briefs in State and Federal
courts.
And we welcome you, Ms. Colby.
Our third 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. In 2006, he authored the
book ``Piety & Politics: The Right-Wing Assault on Religious
Freedom.''
And we welcome you, sir.
Our fourth witness is Greg Baylor, senior counsel with
Alliance Defending Freedom. Mr. Baylor litigates cases to
protect the rights of religious students, faculty, and staff at
public colleges and universities across the Nation. Prior to
joining Alliance Defending Freedom in 2009, he served as
director with the Christian Legal Society Center for Law and
Religious Freedom, where he defended religious liberty since
1994.
And we welcome you, sir.
Now, each of the witnesses' written statements will be
entered into the record in its entirety, and I would ask that
each witness summarize his or her testimony in 5 minutes or
less. And to help you stay within that time, there is a timing
light in front of you. The light will switch from green to
yellow indicating that you have 1 minute to conclude your
testimony. When the light turns red, it indicates that the
witness' 5 minutes have expired.
And before I recognize the witnesses, it is the tradition
of the Subcommittee that they be sworn. So if you will please
stand.
[Witnesses sworn.]
Mr. Franks. Please be seated.
Let the record reflect that the witnesses answered in the
affirmative. And I would now recognize our first witness, Mr.
Staver.
Please, sir, turn on your microphone before beginning.
TESTIMONY OF MATHEW STAVER, DEAN AND PROFESSOR OF LAW, LIBERTY
UNIVERSITY SCHOOL OF LAW, FOUNDER AND CHAIRMAN, LIBERTY
COUNSEL, AND CHAIRMAN, LIBERTY COUNSEL ACTION
Mr. Staver. Thank you, Congressman Franks, Members of the
Committee, and it's a pleasure to be here with my own Member of
Congress, Congressman Goodlatte. Thank you for inviting me and
for this important topic that we're going to be discussing.
The threat to religious freedom has reached unprecedented
levels. It has reached a point where religious freedom is now
being coerced to go against the core values of those who hold
these sincerely held religious beliefs. My testimony will focus
on two primary issues where the threat has reached a critical
point. These involve conflicts between religious freedom and,
number one, the sanctity of human life and, number two, human
sexuality and marriage.
The Obamacare law that was passed in 2010 has a direct
collision with religious freedom of unprecedented levels, both
with regards to the rights of business owners in the HHS
mandate that was promulgated under it and with regards to the
individual mandate as well. Religious freedom with regards to
licensed mental health counselors, minors, and their parents
are also under unprecedented assault. In two states, California
and New Jersey, laws have been passed that prohibit counselors
from offering and minor clients and the parents from receiving
any counsel whatsoever that would seek to reduce or eliminate
same-sex sexual attractions, behavior, or identity.
The freedom of religious business owners with regards to
their rights and operations are also under a threat with
regards to the issues of marriage and human sexuality. First
with regards to Obamacare. Liberty Counsel filed the first
private lawsuit against Obamacare on behalf of Liberty
University and some private individuals on the same day that it
was signed into law by President Obama. In this particular
lawsuit, we claim a violation of religious freedom under the
First Amendment and the Religious Freedom Restoration Act.
There are two different violation under that. First of all,
there is the individual mandate that doesn't get a lot of
press, but under section 1303, individuals who are either in an
exchange or in any insurance that offer any kind of elective
abortion are forced to provide a separate payment in addition
to their premium that goes into a segregated fund, the purpose
of which is only to fund abortion. This breaks precedent with
longstanding congressional Federal policy with regards to
Federal funding or any other kind of funding of abortion.
The other is with regards to the employer mandate. Under
the minimum essential coverage, the HHS mandate decided that,
as part of that, employers were to be providing not only
contraception, but abortifacients and abortion-inducing drugs
and devices. With regards to Liberty University, Hobby Lobby,
Conestoga Woods, or Little Sisters of the Poor, whoever it
might be, failure to abide by that violation of their belief
that God is the creator and that life begins at conception and
therefore they are forced to take innocent human life would
result in a penalty of $2,500 per employee per year. But in
addition to that, under the Department of Labor, those fines go
up to $15,000 per employee per day. It is designed to literally
crush an employer who disagrees with that abortion drug and
device mandate.
With regards to the other challenges involving human
sexuality and marriage, in California, the first State to pass
a law of unprecedented magnitude, even said so by the
California counseling associations, is that no counselor or
client may receive or offer any counsel whatsoever, under any
circumstances, to reduce or eliminate unwanted same-sex
attractions, behavior, or identity. That goes against the
individual client's right of self-autonomy. No other area of
counseling has been affected by this.
After California filed that particular bill and it was
passed, New Jersey also passed a similar law. Both of those are
currently in litigation. But this cuts to the very core of what
a counselor is able to provide a client seeking information and
what a client is able to receive. It's unprecedented because
there's no other area of counseling that falls anywhere in that
kind of restrictive mandate.
In addition to the issues of the counseling associations
and the individuals who are affected by it, there are also
situations involving marriage and the human sexuality laws. In
New Mexico we know of the case--obviously, that has been
recently denied cert by the United States Supreme Court--
involving the wedding photographer. That particular individual
is not discriminating against anyone because of their sexual
orientation. In fact, clearly said so. What she does say is
that she does not want to participate in an event. She doesn't
discriminate against people because they're caucasian, but if
they put on a robe and start involving a KKK rally, she doesn't
want to participate in photographing that event because it
collides with her religious beliefs. But in this particular
case, she is forced to either give up her wedding business or
collide with her religious beliefs. That and many other
instances can be listed ad nauseam with regards to the
unprecedented clashes that we're facing today with respect to
religious freedom.
Thank your for addressing this issue. Religious freedom is
our first freedom. It's a freedom, I think, that is critically
under assault.
[The prepared statement of Mr. Staver follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Thank you, Mr. Staver.
And I would now recognize our second witness, Ms. Colby.
Please turn on your microphone.
TESTIMONY OF KIMBERLEE WOOD COLBY, DIRECTOR, CENTER FOR LAW AND
RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY
Ms. Colby. Chairman Franks, Ranking Member Cohen, and
Members of the Subcommittee, thank you for the opportunity to
participate in this important hearing on the state of American
religious liberty.
The Christian Legal Society has long believed that a free
society prospers only when the First Amendment rights of all
Americans are protected regardless of the current popularity of
their speech or religious beliefs. Therefore, CLS supported
passage of the Religious Freedom Restoration Act to protect the
religious liberty of all Americans.
Congress' passage of the Religious Freedom Restoration Act
was a singular achievement. Senator Edward Kennedy and Senator
Orrin Hatch led the bipartisan effort to pass RFRA in the
Senate 97-3. The House passed RFRA by unanimous voice vote, and
President Clinton signed RFRA into law. For two decades, RFRA
has stood as the preeminent Federal safeguard of all Americans'
religious liberty, ensuring a level playing field for Americans
of all faiths.
Yet, recently RFRA has been targeted by some who would deny
robust protection to religious liberty. This hearing is timely
because in a few weeks Congress may face calls to weaken RFRA
after the Supreme Court decides the HHS mandate cases. But for
several reasons such a threat to religious liberty--weakening
RFRA--should be rejected.
First, RFRA creates a level playing field for all Americans
by putting minority faiths on an equal footing with any
majority faith. Without RFRA, a minority faith would need to
seek a statutory exemption every time Congress considered a law
that might unintentionally infringe on religious practices.
Second, RFRA gives citizens needed leverage in dealing with
government officials. By requiring government officials to
justify their unwillingness to accommodate citizens' religious
exercise, RFRA enhances government's accountability.
Third, RFRA ensures religious diversity in America and
reduces conflict along religious lines. Such conflict is
unnecessary when everyone's religious liberty is guaranteed.
Fourth, RFRA does not predetermine the outcome of any case.
Instead, RFRA implements a sensible balancing test, a test
approved unanimously by the Supreme Court 8 years ago, and the
government continues to win its fair share of RFRA cases.
Fifth, RFRA reinforces America's commitment to limited
government and pluralism. RFRA reminds us that America's
government is a limited government that defers to its citizens'
religious liberty. In RFRA, Congress recommitted the Nation to
the foundational principle that American citizens have the God-
given right to live peaceably and undisturbed according to
their religious beliefs.
Now, let me turn briefly to a second threat to religious
liberty, the ongoing effort to exclude religious voices from
the public square. One example of this threat is the exclusion
of religious student groups from college campuses because they
require their leaders to share the groups' religious beliefs.
Obviously, it is basic religious liberty, not discrimination,
for a religious group to require its leaders to share its
religious beliefs. But at one university, administrators told a
Christian student group that it could remain a recognized
student organization only if it deleted five words from its
constitution: personal commitment to Jesus Christ. The students
left rather than recant. In total, 14 religious groups left
that campus rather than forfeit their religious liberty.
The freedom of religion must not become the freedom to
recant. As Professor Douglas Laycock recently warned, and I'm
quoting, ``For the first time in nearly 300 years important
forces in American society are questioning the free exercise of
religion in principle, suggesting that free exercise of
religion may be a bad idea, or at least, a right to be
minimized,'' end quote.
Religious liberty is America's most distinctive
contribution to humankind, but religious liberty is fragile,
too easily taken for granted, and too often neglected.
Religious liberty is a great gift, a gift we are in grave
danger of squandering. Thank you.
[The prepared statement of Ms. Colby follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Thank you, Ms. Colby.
And I now recognize Reverend Lynn.
TESTIMONY OF REV. BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE
Rev. Lynn. Thank you very much.
This panel certainly represents the two major world views
about the state of religious freedom in America. Mine is this.
Those in the majority faith, Christians like myself, are not
the ones who suffer significant threats to their religious
liberty. They have no serious impediments in believing,
worshipping, obtaining taxpayer-supported grants, generally
doing whatever they deem appropriate. This doesn't mean that
there are no occasional errors made by government officials
that need correction, but a few anecdotes do not make a war on
Christianity.
There are, sadly, many efforts to regulate and relegate
religious minorities and nontheists to a second-class status in
parts of the country. They range from efforts to block
construction of mosques to impeding high school students from
forming nontheistic clubs where existing religious clubs are
being permitted as required by Federal law.
Ironically, the single greatest threat to religious freedom
comes from a radical redefinition of the idea itself. Religious
freedom does not mean what many of my copanelists assert, it
does not mean that for-profit companies that sell wind chimes
or wood cabinets can trump the moral and medical decisions of
women employees who would choose contraceptive services that
their corporate owners would deny them in insurance coverage.
It does not mean that a university must provide funds to school
clubs that will not admit gay and lesbian students. It does not
mean that religious groups seeking government grants and
contracts should be allowed to discriminate on the basis of
religion in hiring people for those State or federally funded
positions.
There are legitimate instances when religious
accommodations and exceptions need to be made; however, the
government need not accede to every religious demand for an
exception to a law that applies to everyone else. Such reaction
would court anarchy.
At first, the government's entitled to ask how substantial
a burden is being placed on the religious person. Regulations
issued under the Affordable Care Act, for example, exempt many
religiously affiliated institutions from covering employee or
student contraceptive services in their insurance plans. If a
college or a hospital objects, it signs a 635-word document so
indicating and mails it to the government, making the
government then responsible for locating third-party birth
control coverage at no cost.
I found it absurd when Notre Dame University now claims it
has a religious right to refuse even to opt out by signing this
form and dropping it in a mailbox. Such a trivial action cannot
seriously be construed under law as any kind of burden on
religious practice. Until Judge Richard Posner rejected its
claim, however, the three women graduate students Americans
United represents at Notre Dame could neither get coverage
through their university nor from a third-party insurer under
the rules, and that is not a speculative or attenuated burden
on them.
Even if the burden on religion is not ephemeral,
governments have a responsibility to assess the damage to third
parties caused by any special exception. If a recently proposed
Kansas statute had been enacted, one of its clear consequences
would have been to allow hotel operators who object to marriage
equality, even on idiosyncratic religious grounds, to refuse to
rent to a gay couple, not only depriving those persons of the
room they desire, but offering a direct and offensive insult to
their very dignity as human beings. When a religiously
affiliated entity cites Christian scripture to justify unequal
payments to male and female employees there is a clear, easily
measured downside for those women.
Some accommodations, of course, do not impinge on the
rights of others. Three of us here today have filed friend of
the court briefs in a Supreme Court case where a Muslim prison
inmate was unfairly told he could not grow a short beard
consistent with his religious obligations. Facial hair on
person A does not affect person B. Allowing a same-gender
couple to marry cannot conceivably offend the religious liberty
of a person across town who doesn't even know that couple
exists.
I think the Framers of the Constitution would be appalled
at the radical revisionism of the First Amendment being
advocated by some. More importantly, I think the America of the
future will look askance at efforts to elevate majority faiths
or subject not so traditional believers to the status of an
orphan class to be denied genuinely equal treatment in this
diverse country.
In that 5-4 decision in the Supreme Court's recent Town of
Greece case, which came dangerously close to embracing the
concept of majority rule in legislative prayer practices, I
noted on Fox News' ``The Kelly File'' five members of the court
seem to be running counter to the entire culture of the United
States where we try to be more sensitive to the diversity of
religion, the diversity of belief.
Where real assaults and religious freedom occur, they
should be condemned. Where a claimed defense is really a
special privilege operating to the detriment of others, it
should simply be rejected.
Thank you, Mr. Chairman.
[The prepared statement of Rev. Lynn follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Thank you, sir.
And I would now recognize our fourth and final witness, Mr.
Baylor.
TESTIMONY OF GREGORY S. BAYLOR, SENIOR COUNSEL, ALLIANCE
DEFENDING FREEDOM
Mr. Baylor. Thank you, Mr. Franks.
My name is Gregory Baylor, and I serve as senior counsel
with Alliance Defending Freedom, a non profit legal
organization that advocates for religious liberty, the sanctity
of life, and marriage and the family through strategy,
training, funding, and litigation. I appreciate the opportunity
to testify today regarding the state of religious liberty in
the United States.
Americans of all faiths have reason to be concerned about
the current administration's religious liberty record. All too
often it has taken unnecessarily extreme positions designed to
dramatically decrease religious freedom. I'll mention three
examples. First, the promulgation and legal defense of the HHS
contraceptive mandate. Second, the unsuccessful attempt to
eliminate the Religion Clauses ministerial exception. And
third, the NLRB's intrusion into the internal affairs of our
Nation's religious colleges and universities.
Regarding the HHS mandate, the administration didn't have
to require employers to pay for contraception and
abortifacients. Nothing in the Affordable Care Act required it
to do so. But it went ahead anyway, despite well-known
religious concerns that many Americans have about contraception
and abortion.
Second, the administration adopted a remarkably narrow
religious exemption from the mandate. HHS could have exempted
all conscientious objectors. It could have even exempted all
religious employers. But again, HHS made a choice, a choice
that damaged religious liberty. It adopted a religious
exemption so narrow that even Jesus and Mother Teresa would not
qualify. The exemption excluded and continues to exclude to
this day the vast majority of religious educational
institutions, social service agencies, and other nonchurch
religious organizations, many of which have just as strong
views on these issues as churches do.
Third, they went ahead with its sham accommodation of
nonexempt religious employers from the mandate, even though the
vast majority of objecting organizations informed the
administration during the comment period that the so-called
accommodation did not satisfy their moral concerns.
Now, the administration's conduct in the defense of the
civil rights lawsuits challenging the mandate has been no
better. First, it has argued that businesses and their family
owners cannot exercise religion in the marketplace. Second, it
has shown a disturbing willingness to second guess and even
discredit the religiously based moral assessments of
individuals and organizations that cannot, in good conscience,
comply with the mandate. Third, in an effort to distort and
dilute the Religious Freedom Restoration Act, the
administration has essentially argued that religious claimants
may not prevail whenever the interests of third parties are
somehow implicated. Fourth, the government has more recently
remarkably argued that the imposition of massive financial
penalties does not count as a substantial burden under the
Religious Freedom Restoration Act.
The administration also took an extreme and potentially
damaging position in the 2012 Hosanna-Tabor case, which has
been mentioned previously. It argued that religious entities,
churches, have no right under the Religion Clauses to choose
their own ministers without governmental interference. Now, the
lower Federal courts have for decades acknowledged that both
the Free Exercise and Establishment Clauses of the First
Amendment keep the government out of a church's relationship
with its ministers. The EEOC itself had accepted the existence
of this ministerial exception in its compliance manual and in
previous lawsuits.
Now, to be sure, reasonable minds can disagree about who
counts as a minister for purposes of the doctrine, and that's
what the Hosanna-Tabor case was about until the Obama
administration filed its brief at the Supreme Court. Instead of
continuing to argue more conventionally that the plaintiff in
question was not a minister, it instead attacked the very
existence of the ministerial exception. Demonstrating the
extreme nature of this position, a unanimous Supreme Court
reaffirmed the doctrine and protected the church from unwanted
governmental intrusion.
Finally, the National Labor Relations Board continues its
quest to assert jurisdiction over religious institutions of
higher education. It does so despite the clear teachings of the
Supreme Court in the 1979 case NLRB v. Catholic Bishop. It has
arrogated to itself the power to examine and assess how
religious a school is, denying constitutional protection to
those schools that are not religious enough for its taste. The
board has ignored multiple D.C. Circuit opinions instructing it
to respect religious liberty in administering the National
Labor Relations Act.
In conclusion, all Americans who love our first freedom
ought to be alarmed at the administration's willingness to
undermine that fundamental right.
Thank you again for the opportunity to testify, and I look
forward to addressing any questions that Committee Members
might have.
[The prepared statement of Mr. Baylor follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. I would like to thank all of the witnesses for
their testimony. And we will now proceed under the 5-minute
rule with questions. I will begin by recognizing myself for 5
minutes.
And, Dean Staver, I'll begin with you, sir. Regarding the
HHS mandate under Obamacare, the main focus here has been on
the employer mandate, but you also referenced a similar threat
to religious freedom under the individual mandate, and I wonder
if you could further address that and clarify that for us.
Mr. Staver. Yes, Mr. Chairman. It doesn't get a lot of
attention in the media. The employer mandate is the primary one
that's being discussed. But section 1303 actually sets up the
individual mandate with regards to abortion and the abortion
funding. It has become known as the so-called Nelson compromise
because it arose out of Senator Ben Nelson's attempt to find
language that would make it clear that there would be no
government Federal funding with regards to abortion.
Section 1303 specifically says that in plans where elective
abortion are offered anywhere within that network, whether it's
in your own or if you're finding it in an exchange, you have to
pay a separate fee, in addition to your premium. That fee is
paid monthly, and it goes into a segregated fund, and that fund
is used only for one purpose, and that's to fund elective
abortions for anyone within that coverage. No matter your age,
your sex, or your religious objection to the contrary, you
still have to pay for that particular coverage.
And the even more egregious thing with it is you can't find
out if your plan covers abortion because of the so-called
secrecy clause that was put into the Obamacare law so that you
wouldn't be able to find out whether your plan covered
abortion. Any other area where you want to find insurance,
whether it's car insurance or health insurance, before you
decide to take a particular plan and pay the premium, you have
the right to be able to get a list of what that plan covers.
But here you're not allowed to do so. In fact, under the
Obamacare law, insurance companies are prohibited from
providing any information with regards to that coverage, and
therefore it is essentially Russian roulette. You don't know
until you actually pay the premium. Once you pay the premium,
you're locked in for a year. After you pay the premium, you get
to know what's in that plan, and if that plan covers abortion,
you're forced, in addition to your premiums, to pay an
additional monthly fee, and that fee goes directly to fund
abortion.
That was Senator Nelson's way to get around having Federal
funds do that, but now the Federal law provides and coerces
individuals to do that very thing. So that breaks with
consistent Federal policy under the Hyde Amendment and others
about not having coerced Federal funds from taxpayers to pay
for abortion.
This is a direct assault. Regardless of what the Supreme
Court does this month with regards to the Hobby Lobby case and
the Conestoga Wood case relating to the employer mandate, this
is still in existence and it still affects every single person
around the country. So this is a direct assault. It needs to be
addressed by Congress. Something needs to be done to exempt
those with sincerely held religious beliefs from that provision
because never before have we been able to trace a dollar from
your purse or pocketbook directly from you to one source to
fund abortion. It's not a general funding of medical
procedures, one of which might be a knee replacement and
another might be abortion. This fund goes directly from the
person and it has its only objective to fund the taking of
innocent human life.
Mr. Franks. Thank you, sir.
Ms. Colby, I know that much has already been mentioned
today about the Tabor case, but I wonder, if you would, just
for those of us that are not as erudite as you are, could you
break that down for us a little bit. Tell us what the
administration, the Obama administration actually argued, and
how, if they had been successful, that would have affected
churches and other religious institutions.
Ms. Colby. Certainly. I think, as Greg already mentioned,
the Obama administration took an extreme position in the
Supreme Court that was unnecessary. I was actually part of a
group of about 15 people from the religious liberty community,
from Jewish groups, Catholic groups, Christian groups,
Protestant groups, who met with the Solicitor General's office
beforehand to try to say we understand you have to defend the
EEOC, but please do it with the least amount of damage possible
to religious liberty.
And so we were shocked, we were stunned, all of us, when we
saw what the administration ended up filing. It was a brief
that said that the Free Exercise Clause and the Establishment
Clauses have nothing to do with the church's right to decide
who its minister should be, that there was no protection under
either of those clauses for a church or any other religious
congregation to decide who its leaders would be.
Mr. Franks. So a Jewish synagogue would not have the right
to hire a Jewish rabbi.
Ms. Colby. No. Well, they could hire him----
Mr. Franks. Couldn't discriminate against Baptists or
others.
Ms. Colby [continuing]. But if there were a lawsuit, the
government could interfere, right.
Mr. Franks. I understand. All right. Well, I wish I had
more time, but I don't, so I will now yield to the Ranking
Member for 5 minutes for questions.
Mr. Cohen. Thank you, Mr. Chair.
Ms. Colby, I would like to ask you a question. I saw in
your biography that you were particularly interested in slavery
history there. When you studied slavery, did you see a whole
bunch of people that supported slavery on the theory that it
was a Christian thing to do, that a lot of people back at that
time used the Bible, unfortunately, as a basis to defend
slavery?
Ms. Colby. Actually, I've heard that argument made a lot,
and it's something that I am trying to look into on my own. But
I've been interested in reading--I believe her name is Annette
Gordon-Reed, She's a professor at Harvard Law School, and she
wrote about the Sally Hemmings-Jefferson relationship. And just
in passing, I think it's called ``The Hemmings of Monticello.''
She just in passing says around page 98 or something, that one
would not have expected Jefferson to have emancipated his
slaves because he was not a Trinitarian Christian, he was not a
believing Christian, he was a deist. And she just says in
passing that the only owners that were doing that were
essentially evangelical Christians. Now, I certainly am not
saying that all evangelical Christians----
Mr. Cohen. You're not saying Robert E. Lee wasn't a
Christian, are you? You're not suggesting that Stonewall
Jackson wasn't a Christian, are you?
Ms. Colby. I am not suggesting that, but what I am
suggesting----
Mr. Cohen. They were fine Christian men, and they had their
slaves.
Ms. Colby. What I am suggesting is that the whole abolition
movement originated in first the Quakers and then the
evangelical Christians.
Mr. Cohen. But there were lots of people who defended
slavery on the basis that that was--just like they defended the
miscegenation laws. Do you believe that people of different--
African Americans and caucasians should be able to intermarry?
Ms. Colby. Of course.
Mr. Cohen. Okay, good.
Dean Staver, how about you, do you believe in that?
Mr. Staver. Yes.
Mr. Cohen. You do. So all those ministers that said that
that was against Christianity and for years that was the basis
of the defense before Loving v. Virginia, they used the Bible,
unfortunately, and besmirched it.
Mr. Staver. Well, some may try to use the Bible for that,
but if you look at the abolition movement, it was really a
movement that rose out of Christian beliefs and Judeo-Christian
values, not only here in the United States, but also William
Wilberforce. It was something that was grounded in Judeo-
Christian values
Mr. Cohen. Let me ask you this. There are certain anti-gay
laws that they have in Russia. You, I believe, have advocated
for something similar to that, have you not? Do you support the
Russian anti-gay laws?
Mr. Staver. The Russian anti-gay laws?
Mr. Cohen. The laws in Russia that make it illegal to be
gay and to have certain activities restricted for people who
are gay.
Mr. Staver. What I am concerned about is having people of
Christian, Judeo-Christian beliefs be forced to participate in
a ceremony or an event that celebrates something that is
contrary to their religious belief.
Mr. Cohen. Okay. So you are not in favor of the anti-gay
Russian laws. What I read was wrong.
Mr. Staver. I don't know what you read.
Mr. Cohen. Fine.
Mr. Staver. I haven't spoken on the Russian law anywhere.
Mr. Cohen. Okay. Thank you. I am happy to see that.
You wrote a book called ``Take America Back,'' or an
article.
Mr. Staver. Yes.
Mr. Cohen. Is it a book or an article?
Mr. Staver. It's a book.
Mr. Cohen. What are we taking America back from? And who is
we?
Mr. Staver. The point of it was to go back to a
constitutional roots of the Constitution and the rights that
are guaranteed in our Constitution, that the Founders
guaranteed the right to freedom of speech, freedom of free
exercise of religion, those kinds of rights that are declared
not only in the Constitution, but that are set forth in the
Declaration of Independence, that we have certainly unalienable
rights that come from our creator, among which are life,
liberty, and the pursuit of happiness.
Mr. Cohen. Right. And do you believe that the Interstate
Commerce Clause was sufficient to allow for the Civil Rights
Act to be constitutional?
Mr. Staver. I have never argued to the contrary, so I don't
know if you've read anything to that effect. I've never argued
anything to the contrary.
Mr. Cohen. So you support the constitutionality of the
Civil Rights Act?
Mr. Staver. I am certainly an advocate of civil rights.
Mr. Cohen. Do you support the constitutionality of the
united Civil Rights Act of 1964?
Mr. Staver. Yes.
Mr. Cohen. Good. Good, good, good, good.
You referred to Obamacare. Just for the record, it's the
Affordable Care Act and Patient Protection Act. That's the real
name of it. We're talking about contraception. The Founding
Fathers, what was contraception when the Founding Fathers were
around? Do you think they envisioned pills and surgical
procedures, or would they have some other form of
contraception?
Mr. Staver. I don't think they envisioned the kind of
contraception or abortifacients we have today. However,
abortion was something that was known, and it's even in the
Hippocratic Oath, long through the centuries that that was an
issue.
Mr. Cohen. But birth control like we have today wasn't
known then, right?
Mr. Staver. No
Mr. Cohen. So we have to kind of flow with the times and
learn?
Mr. Staver. Well, we have to also understand that there are
certain fundamental values. Life is a critical value. Without
the right to life, you have no other rights. Rights to freedom
of speech or freedom of religion is meaningless to a corpse.
Mr. Cohen. Do you believe any abortion, even in the first
couple or 3 weeks of conception, is constitutional or legal?
Mr. Staver. I believe that life comes from our creator, and
that life biologically begins at the moment of conception, and
the taking of innocent human life is tantamount to murder.
Mr. Franks. The gentleman's time has expired
Mr. Cohen. Thank you, sir. I yield back the balance of the
time that I don't have.
Mr. Franks. And I would now recognize the gentleman from
Texas, Mr. Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
I know there was a lot said in the opening statements each
made. For example, my friend from Tennessee was quoting from
Thomas Jefferson. I think it is good to also--and, actually, I
know, Reverend Lynn, you had said, ``I think the Founders would
be appalled,'' were your words. I think, personally, for me,
the Founders would be appalled at the things that have appalled
you, rather amazingly.
The quote about Jefferson, from Jefferson, he also in the
Jefferson Memorial, he said, ``God, who gave us life, gave us
liberty. Can the liberties of a nation be secure when we have
removed a conviction that these liberties are the gift of God?
Indeed, I tremble for my country when I reflect that God is
just, that His justice cannot sleep forever.''
And I know, it was even mentioned, that--of Jefferson being
a deist. You know, we know that he cut out miracles from his
version of the Bible, but my understanding of a deist is that a
deist does not believe that whatever God or deity, whatever it
was that created things ever interferes with the natural course
of things. And yet here you have Jefferson being very concerned
that God's justice would not sleep forever.
I also note, this was a gift from my aunt from my uncle's--
what my uncle was given going into World War II. And here it
says ``the White House,'' ``Washington,'' ``As Commander in
Chief, I take pleasure in commending the reading of the Bible
to all who serve in the Armed Forces of the United States.
Throughout the centuries, men of many faiths and diverse
origins have found in the Sacred Book words of wisdom, counsel,
and inspiration. It is a fountain of strength and now, as
always, an aid in attaining the highest aspirations of the
human soul.'' Signed, ``Franklin D. Roosevelt.''
Reverend Lynn, are you offended by that, that the
President, with the stamp of the White House, would allow that
to be in Bibles that were given out to soldiers?
Rev. Lynn. I am not offended by that, but one of the
reasons I am not offended by it is because I suspect I shared a
lot of the particular religious beliefs of Franklin Roosevelt.
A few years ago, I was honored to receive from the Franklin
and Eleanor Roosevelt Institute a medal of freedom--a medal of
freedom for the freedom to worship. And I think that----
Mr. Gohmert. That wasn't awarded by Roosevelt himself.
Rev. Lynn. No, it was not. By the----
Mr. Gohmert. Yeah. And you are familiar with the prayer
that he prayed on D Day----
Rev. Lynn. I am very familiar with the prayer.
Mr. Gohmert [continuing]. Right? You are familiar with that
prayer he prayed on D Day, correct?
Rev. Lynn. I am familiar with the prayer----
Mr. Gohmert. Where he asked that God help against these
unholy forces.
But you mention, you know, at numerous times you are a
Christian. And, of course, that, like the term ``deist,'' can
have different meanings to different people. And I think about
the episode of ``Seinfeld'' where Elaine finds out her
boyfriend is a Christian and he has never mentioned it to her
and she is offended. ``So you are a Christian?'', she asks
basically. ``Don't you believe if you are not a Christian you
go to hell?'' ``Well, yeah.'' ``Then why haven't you said
anything to me if you care about me?''
I am curious, in your Christian beliefs, do you believe in
sharing the good news that will keep people from going to hell,
consistent with the Christian beliefs?
Rev. Lynn. Yeah, I wouldn't agree with your construction of
what hell is like or why one gets there. But the broader
question is, yes, I am happy to. When I speak to----
Mr. Gohmert. Okay. So you don't believe somebody would go
to hell if they do not believe Jesus is the way, the truth, the
life?
Rev. Lynn. I personally do not believe people go to hell
because they don't believe in a specific set of ideas in
Christianity. I have never----
Mr. Gohmert. No, no, no, not a set of ideas. Either you
believe as a Christian that Jesus is the way, the truth, the
life, or you don't. And there is nothing wrong in our country
with that. There is no crime, there is no shame. It should
never be a law against those beliefs, because God gave us the
chance to elect to either believe or disbelieve. And that is
what we want to maintain, is people's chance to elect yes or
no, the chance that we were given.
So do you believe----
Rev. Lynn. Congressman, what I believe is not necessarily
what I think ought to justify the creation of public policy for
everybody, for the 2,000 different religions that exist in this
country, the 25 million nonbelievers.
I have never been offended; I have never been afraid to
share my belief. When I spoke recently at an American Atheists
conference, it was clear from the very beginning in the first
sentence that I was a Christian minister. I was there to talk
to them about the preservation of the Constitution. And, in
fact, I said, you know, we can debate the issue of the
existence of God for another 2,000 years; I want to preserve
the Constitution and its effect on all people, believers and
not-believers, in the next 5 years. That is what I talk about--
--
Mr. Gohmert. So the Christian belief, as you see it, is
whatever you choose to think about Christ, whether or not you
believe those words he said, that nobody, basically, goes to
heaven except through me.
Rev. Lynn. We could have a very interesting discussion
sometime, probably not in a congressional hearing, about----
Mr. Gohmert. Well, I was just trying to figure out, when
you said ``Christian''----
Rev. Lynn [continuing]. Scriptural passages.
Mr. Gohmert. There is no judgmental--that is not my job.
God judges people's heart, in my opinion. But just to try to
figure out what we meant by ``Christian.'' So I appreciate your
indulgence.
Thank you.
Mr. Franks. I thank the gentleman.
And I now recognize Mr. Nadler for 5 minutes.
Mr. Nadler. Thank you very much.
Mr. Staver, you said it is an imposition--let me start out
by saying I was one of the sponsors of the Religious Freedom
Restoration Act. And, along with Charles Canady, a former
Republican Member from Florida, I was the author of the
Religious Land Use and Institutionalized Persons Act. But we
always conceived of these as shields of religious freedom, not
as swords with which to impose religious beliefs on other
people.
Let me ask you a few questions. You said it is wrong, an
imposition on religious belief for government to insist that
the wedding photographer not be able to say I won't go to the
gay marriage; is that correct?
Mr. Staver. Correct.
Mr. Nadler. Would it be an equal limitation of his
religious belief if he said I don't want to go to a wedding of
black people, I want to discriminate against black people?
Would the government saying you can't do that be a violation of
his religious freedom?
Mr. Staver. I think that is fundamentally different.
Mr. Nadler. Why?
Mr. Staver. She is not saying she doesn't want to
photograph a wedding where there is people who are gay and
lesbian. She is saying she doesn't want to photograph a
celebration of same-sex unions.
Mr. Nadler. And if her religious beliefs said I don't want
to celebrate a celebration of black unions because I think
black people shouldn't get married, that is my religion, I
mean, is it an imposition on her religious freedom for
government to say you can't do that?
Mr. Staver. I think it is fundamentally different, and I
don't think that is what the issue is in that case. And I
don't----
Mr. Nadler. That is exactly what the issue is.
Mr. Staver. No, they----
Mr. Nadler. She has a religious belief that she shouldn't
participate or be forced to participate in a celebration which
goes against her religious belief. And let's assume her
religious belief is that she shouldn't photograph a Jewish
wedding. Would that be discrimination that the civil rights law
can proscribe or not? And if not, why not?
Mr. Staver. I think it would be something that she wouldn't
object to, first of all; secondly----
Mr. Nadler. Somebody with some religious belief might
object. I am not saying your client or your friend or whoever
she is. Let's assume that someone had such a religious belief,
that it is a violation of her religious belief to be forced
professionally, because she is a photographer, to photograph a
Jewish wedding or a Muslim wedding or whatever, and the
government says, that is discrimination, you can't do that. Is
the government being improper by limiting her religious freedom
in that case?
Mr. Staver. Well, first of all, there is a legal question
of whether it is a public accommodation, but assuming that it
is----
Mr. Nadler. Assuming that it is.
Mr. Staver.--I think that she would have an issue there, a
violation potentially. But I think what----
Mr. Nadler. She would have a violation. Okay.
Mr. Staver. But that issue is fundamentally different. She
specifically stated in that case that she doesn't discriminate
against----
Mr. Nadler. Excuse me, it is my time. I don't see any
difference at all. You can try to see it.
Now, if the owner of a public accommodation, a restaurant,
said, I don't want--well, I am holding out myself in commerce--
my religious belief is I don't want black people or Jewish
people or whoever, or gay people, in my restaurant, and
certainly not a gay couple holding hands, and the Federal
Government says that is discrimination, is that a violation of
the freedom of religion?
Mr. Staver. No. And I don't think that is what the issues
are that we are----
Mr. Nadler. I don't see how it is distinguishable.
Let me ask you a different question. The Affordable Care
Act says you have to have certain basic services covered by the
insurance policy. You object because it violates the religious
beliefs of some people to have contraception covered.
Let's assume that it covered blood transfusions. Some
religious groups are opposed to blood transfusions. What is the
difference?
Mr. Staver. Well, I think if it was someone like a
Jehovah's Witness or some other kind of religion, then that is
a fundamentally different situation.
Mr. Nadler. Why?
Mr. Staver. Because that does conflict with their sincerely
held----
Mr. Nadler. Oh, so you are saying it would be the same
situation. In other words, we shouldn't be allowed to say that
insurance companies have to cover blood transfusions because
there are people, Jehovah's Witnesses or whoever, who----
Mr. Staver. No, no. I am referring to an individual who is
being forced to have a blood transfusion.
Mr. Nadler. No, no, no, we are not talking about being
forced to have a blood transfusion, because we are not talking
about someone being forced to have an abortion.
The objection is to mandating that the insurance policy
cover abortions for those who want them. The objection here
would be requiring the insurance policy to cover blood
transfusions for those who want them and who need them.
What is the difference?
Mr. Staver. I think there is a significant difference.
Mr. Nadler. To wit?
Mr. Staver. Because one is the taking of innocent human
life.
Mr. Nadler. Excuse me. That is a value judgment. And you
may----
Mr. Staver. That is not a value judgment. That is a--that
is so fundamental----
Mr. Nadler. Wait a minute. That is a religious conviction.
Mr. Staver. That is so fundamental to your Christian belief
that you cannot violate that.
Mr. Nadler. Fine. To some Christian beliefs and not to
others and not to some other beliefs. And I am not going debate
that, nor am I debating the validity of someone objecting on a
religious basis to blood transfusions or to a lot of other
things. There are equally valid beliefs, from a government
point of view. Any religious belief is equally valid from a
government point of view, can't distinguish.
Mr. Staver. But the taking----
Mr. Nadler. So my question is----
Mr. Staver [continuing]. Of innocent human life----
Mr. Nadler. The taking of innocent human life----
Mr. Staver [continuing]. Is fundamentally different. The
destruction of another human being is fundamentally different.
Mr. Nadler. All right. Let's assume we aren't talking about
abortifacients, we are only talking about--or what are
characterized abortifacients--contraception. That aside, is not
the taking of innocent human life.
Mr. Staver. Well, the FDA classifies Ella and Plan B as
abortifacients.
Mr. Nadler. Put that aside. Let's assume that you weren't
talking about----
Mr. Franks. The gentleman's time has expired.
Mr. Nadler. We are talking only about contraception. Would
that be different from the blood transfusion case?
Mr. Staver. I am sorry, I didn't----
Mr. Nadler. Would that be--if the requirement says the
insurance company must cover contraception, not including what
you would consider abortions, would that be different and of
greater or lesser validity as an invasion of religious liberty
than the requirement that the insurance policy cover blood
transfusions, which other people object to on religious grounds
also?
Mr. Staver. It could be similar, but I think it is also
fundamentally different, particularly for those of Roman----
Mr. Nadler. It does.
Mr. Staver.--Catholic beliefs, because it deals with the
creation or the destruction of innocent human life.
Mr. Nadler. We are not talking about abortions. We are the
talking----
Mr. Staver. I know----
Mr. Franks. The gentleman's time has expired.
Mr. Staver. But we are talking about contraception, not the
abortifacients. That is what we are talking about.
Mr. Nadler. Right. Yes.
Mr. Staver. For those of Roman Catholic belief, that deals
with the very beginning of human life. The----
Mr. Nadler. And for those of other beliefs, transfusions
are equally objectionable. What is the difference?
Mr. Staver. I think it is fundamentally different when you
are talking about the creation or destruction of innocent human
life.
Mr. Franks. The gentleman's time has expired.
And we now recognize Mr. King for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
And I thank the witnesses for your testimony.
Sometimes I have a little trouble attaching all the
dialogue if I can't take it back and anchor it to something
that is the basis for our discussion here, and I think that
would be the First Amendment. And I don't believe I heard
anybody actually address the text of the First Amendment.
So I would turn to Dean Staver and ask--I want to go to
this wall-of-separation discussion. So could you explain that
to me, how we got to that?
Mr. Staver. The wall of separation?
Mr. King. Yes.
Mr. Staver. Well, the First Amendment clearly says that
Congress shall make no law respecting the establishment of
religion or prohibiting the free exercise thereof. So it is a
protection of a barrier against government intrusion on
religious freedom. That is what the essence of the First
Amendment is.
Thomas Jefferson's letter to the Danbury Baptists was a
letter of congratulations by the Danbury Baptists, and he used
the opportunity, as he often did, to write a letter to give
certain kinds of statements. And in that statement, he was
justifying, especially in the earlier drafts that are clearly
available now for review and research, why he didn't, like his
previous predecessors, Washington and Adams, engage in national
days of prayer. And he indicated that the Federal Government
was not allowed to establish a religion and, therefore, not
allowed to require a national prayer, and so, therefore, as the
Executive, he was not allowed to carry out what the Federal
Government was not allowed to do.
He never used the word ``separation of church and state''
before that letter. And if it was so important to him, he never
used it again after the letter. He never used it at all.
And, in fact, in another letter, he refers to the First
Amendment with regards to religion and the 10th Amendment as
saying essentially the same thing: The Federal Government
should have the hands off of religion because that is a matter
reserved for the States.
Mr. King. But if Thomas Jefferson for a moment, maybe in a
fit of anger or frustration, for a moment wrote a letter to the
Danbury Baptists and for that moment he had changed his mind on
his longstanding support for the First Amendment and then never
revisited it again, is there any legal basis whatsoever for an
opinion that came out so many years later?
Mr. Staver. No. In fact, the Supreme Court that first
really relied upon that said that Thomas Jefferson, as we know,
basically was influential in the drafting and adoption of the
First Amendment. And, of course, Justice Rehnquist was the
first Justice who later, in a dissent or a concurring opinion
later, literally demolished that. No historian now will support
what that opinion says, because Thomas Jefferson had nothing
whatsoever to do with drafting the First Amendment.
Mr. King. So from a First Amendment standpoint, we are back
to ``Congress shall make no law.''
Mr. Staver. Yes.
Mr. King. And that stands today, and it has not been
redefined by any succeeding precedent case----
Mr. Staver. Correct.
Mr. King [continuing]. In your judgment.
Would you agree, Mr. Baylor?
Mr. Baylor. Well, your question is about whether the
Establishment Clause applies to local and State government, as
well, beyond Congress. Is that--am I understanding correctly?
Mr. King. Well, I didn't ask you the question, but it is
one we should get answered here, so I would ask your opinion on
that.
Mr. Baylor. Yeah. You know, that is not a question that is
presently being debated very much among the courts. I think it
is well-accepted that it ought to be applied and it ought to be
applicable to the State and local governments, as well.
But the question is, what does the thing mean? And when the
phrase ``separation of church and state'' was initially used by
the Supreme Court, it was to protect the church from the state,
not to be a device under which the government discriminates
against religion.
And from 1947 forward, when the Supreme Court invoked that
phrase and misinterpreted and misapplied it, all too many
organizations and Justices were using this phrase as meaning,
``We must exclude Christian speakers or religious speakers from
public settings; we must deny them equal access to funding.''
So the key issue is the meaning of the Establishment Clause.
Mr. King. Is there any scholarship that there was ever an
effort to actually insert those words into the Constitution, by
amendment or in the original draft?
Mr. Baylor. Well, the Blaine amendment that was proposed
after the Civil War was designed to deny equal educational
funding to religious schools, and that effort failed. And I
think it is quite ironic that the Establishment Clause was
subsequently interpreted by the court to hold precisely that.
Now, thankfully----
Mr. King. Was there ever an effort----
Mr. Baylor [continuing]. The court changed its mind about
that.
Mr. King. Was there ever an effort to amend the
Constitution, ever a proposal or an actual constitutional
amendment that would have inserted language, ``a wall of
separation,'' or similar language that you know of?
Mr. Baylor. Not to my knowledge, no, sir.
Mr. King. Reverend Lynn, are you aware of any?
Rev. Lynn. No. I think it is right, because I think that it
was commonly understood after the passage of the 14th Amendment
that one of the purposes of the 14th Amendment, as articulated
by the Republican sponsors of the 14th Amendment, was to apply
the Bill of Rights to the States and, therefore, to guarantee
this same what Jefferson called a ``wall of separation'' to
State activity.
Mr. King. Do you know anything about a report that I have
that the Ku Klux Klan had actually made an effort to introduce
that language in as an amendment to the Constitution,
``separation of church and state,'' and that it originated as
an anti-Catholic bias from the Klan?
Rev. Lynn. There was certainly anti-Catholic bias on the
part of the Ku Klux Klan. They hated pretty much everyone who
was not themselves.
Mr. King. Does anyone on the panel----
Rev. Lynn. But this is not----
Mr. King [continuing]. Have any knowledge of that?
Rev. Lynn. What?
Mr. King. Does anyone on the panel have any knowledge of
what I just brought up?
Rev. Lynn. No.
Mr. King. Hearing none--Dean Staver, I see you leaning
forward.
Mr. Staver. Well, I think, as Mr. Baylor said, that there
was an effort with the Blaine amendment to specifically
discriminate against, particularly, Catholic Church and
Catholic schools. There were two attempts to amend the First
Amendment to replace the words ``Congress shall make no law
respecting'' to ``no State shall make no law.'' Both of those
failed.
Mr. King. I understand. And I appreciate all the witnesses'
testimony.
And I yield back the balance of my time.
Mr. Franks. And I thank the gentleman.
And I now recognize the gentleman from Virginia, Mr. Scott,
for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Reverend Lynn, the school-prayer issue has been bandied
back and forth. Can you tell me the implications of the
Establishment Clause and the Free Exercise Clause in that
issue?
Rev. Lynn. I think it is a perfect example of where those
two clauses have an independent and important meeting.
The nonestablishment principle means, as the Supreme Court
rightly said in the early 1960's, local governments cannot
write a prayer, the so-called regent's prayer. No bureaucrat
should write a prayer that every student should articulate. And
then, just a year later, in another Supreme Court decision, the
majority of the Court said it is also true that local
governments cannot choose a prayer, even the Lord's Prayer, or
select what holy scripture--in the case of Maryland and
Pennsylvania, the Holy Bible of Christianity--and require it to
be articulated in the schools. That is what the establishment
principle means.
What the free-exercise principle means is that if I want to
have my child say a prayer, as she frequently did, in
elementary school over her lunch, she was not barred from doing
that. That was truly her independent decision, because that is
something she learned in her family. That is free exercise of
religion.
Establishment is when the government decides the time, the
place, the manner, or the content of prayer. That is properly
forbidden and, I think, a long-established principle, which is
why we don't have constitutional amendments on this matter
coming up every year before the United States House and Senate
as we did 20 years ago.
Mr. Scott. Thank you.
A lot has been said about the government picking a
religious leader. Is there any question that a church, a
synagogue, can discriminate based on religion in selecting
their leadership with their congregational money?
Rev. Lynn. We took a position in the Hosanna-Tabor case
that was somewhat different than the Obama administration,
concerned that that could be read too far, to act as if, if you
were trying to hire a new rabbi, you had to make sure that you
also went and considered Buddhist priests or a Wiccan priestess
for the same position.
We took the position that the issue is what can be defined
as a minister and that a minister simply can't be defined by
act of the congregation determining that a whole class of
people happen to be ministers.
So we have now been approached, for example, by African-
Americans who work for churches who have been defined as
ministers now, even though they might not have been a minister
before the Hosanna-Tabor case, who say, we think race played a
role in our dismissal. But thanks to the Hosanna-Tabor's broad
language, that individual cannot go to the EEOC and say,
``Look, this is a fraud. It wasn't about religion. They fired
me because of race.'' He or she cannot get into the EEOC's
door, which means he or she cannot have access to Federal
courts.
That is a terrible decision. It went too far. I don't know
why the administration took quite the broad position it did. We
took a much narrower one. And I wish that that had been the
majority opinion in that case instead of a nine-to-zero
decision that opens the gates to widespread discrimination
without any access to claim that gender or disability or even
race was the true justification for a firing.
Mr. Scott. Is there a difference in using Federal money
rather than congregational money when you are talking about
discrimination?
Rev. Lynn. Oh, I think so. I mean, I think it is absolutely
clear that the Federal Government continues to allow funding
through grants and contracts to organizations that discriminate
on the basis of religion.
This is something the President said when he was a
candidate for the Presidency in 2008 that he would change.
Unfortunately, he has not done that, and it remains a
persistent problem for civil rights in this country.
To allow a group to get a government contract and not to be
in a position to hire the best qualified person, to be allowed
to hire on the basis of religious preference or their comfort
level with hiring people of their same faith background, I
think is a disgrace in the 21st century for anyone and
certainly for this administration to continue to pursue.
Mr. Scott. We are in the 51st anniversary of the signing by
President Kennedy of the Equal Pay Act. If people have
religious objections to equal pay, what happens? And is there
any caselaw on that?
Rev. Lynn. There is one case that I am aware of in the
Fourth Circuit. It arose in a facility in the State of
Virginia. The idea was that the school in Virginia would not
pay men and women equally; they paid men more. They cited the
Christian doctrine that as Christ is head of the church, so the
husband is head of the family, and therefore justified giving
husbands, mainly men, more money.
This was litigated. That position lost in the First
Circuit. It was not appealed to the United States Supreme
Court. But it is another example of how if you say these laws
can be selectively enforced, if I have a religious objection,
it doesn't apply to me, it applies to not just birth control,
it applies to all kinds of other medical procedures, it applies
to the civil rights rubric of our country, it applies to the
Equal Pay Act. As Justice Scalia once mentioned, it is a
principle that courts anarchy.
I think this is the first time I have ever quoted Justice
Scalia in testimony before this or any Committee.
Mr. Franks. The gentleman's time has expired.
And I now recognize the gentleman from Virginia, Mr.
Forbes, for 5 minutes.
Mr. Forbes. Chairman, thank you.
And, gentlemen, thank you, and ladies, for being here
today.
And, Mr. Lynn, I just heard the last part of your
questioning from my good friend from Virginia, Mr. Scott, but I
read your testimony, and the part where it said that there was
a radical redefinition of religious liberty that is under way.
Are you the one attempting that radical redefinition, or
are you suggesting that the people sitting at the table with
you are?
Rev. Lynn. Well, I think that the--my suggestion is that
the three people around me, all of whom I have known for many
decades, are unfortunately radically trying to rewrite and turn
this into----
Mr. Forbes. Let me ask you this question then. Are you
suggesting that the test that you put forward is the current
test that the courts have established for religious freedom and
religious liberty?
Rev. Lynn. I would say that it depends which courts you are
talking about. The United States Supreme Court has made a
series of decisions----
Mr. Forbes. Let me ask you on the United States Supreme
Court where they said----
Rev. Lynn. Yep.
Mr. Forbes. Because here is basically what you say. You say
that religious accommodations and exemptions should only be
granted when, one, there is a genuine and substantial burden on
First Amendment right, and, two, that they not impinge on the
interest of others. Is that the Supreme Court test?
Rev. Lynn. That is not the Supreme Court test.
Mr. Forbes. So, then, the test that you set forward would
really be a radical redefinition of religious liberty, I think.
And let me ask you this question. Based on the definition
that you put forward, do I have a right not to be offended? And
if so, is there ever a time when your right to practice your
religion should be subordinated to my right not to be offended?
Rev. Lynn. No, I don't like that phrase of ``take offense''
or ``be offended.'' I don't think Americans have a right not to
be offended. I do think they have the right, though, not to be
asked to subsidize someone else's religion with----
Mr. Forbes. Yeah, but that is not my question.
Rev. Lynn [continuing]. Which they disagree.
Mr. Forbes. So you agree with me that they don't have a
right not to be offended?
Rev. Lynn. I am offended 100 times a day by something.
Mr. Forbes. Good. If I own a convenience store in Virginia
that sells gas and my religious beliefs require me not to open
on Sunday, is there ever a time when your interest to get gas
while traveling through the State should cause my religious
beliefs to be subordinated to your need for gas and I should be
forced to open on Sunday?
Rev. Lynn. No, I think that in that example you have a
good, colorable claim that your right not to open--it is your
position, it is not the State law, it is your position--does
put some people in an area of inconvenience but does not in any
way insult the integrity or the dignity as if you were to say
to a gay couple walking into your restaurant, ``You know,
folks, I am not going to serve you. You have to go elsewhere.''
Mr. Forbes. If I did open on Sunday but my religious
beliefs required me not to sell alcohol or tobacco products on
Sunday, is there ever a time when your interest to buy such
products should cause my religious beliefs to be subordinate to
your interest to buy such products and when I would be forced
to sell them to you?
Rev. Lynn. Depending on the State. If you are a State whose
sales on Sunday of things like alcohol and tobacco are
regulated by State law, I am afraid that if you want the
license to sell, you probably under those circumstances need to
also adopt the requirement of State law, if it is so, that you
sell those products on Sunday.
Rev. Lynn. I don't think there is any State that would
require me to sell alcohol and tobacco.
Rev. Lynn. I don't think there is either.
Mr. Forbes. So, then, give me the State where the law would
be as you just pointed out.
Rev. Lynn. I don't know that there is a State. Mine was a
hypothetical, that if you seek a license from the State and
then you say, well, I want some of the privileges of it, like
the ability to sell alcohol, but I don't want to abide by all
of the other regulations----
Mr. Forbes. Well, there is no regulation that says I have
to sell it. So what you are saying is that the State just says
I can sell alcohol and tobacco. You are saying then I have to
sell it 7 days a week, regardless of my religious beliefs?
Rev. Lynn. No. I am just saying that it depends on what
else you adopt----
Mr. Forbes. Well, Mr. Lynn, let me ask you this.
Rev. Lynn [continuing]. When you adopt----
Mr. Forbes. Who draws these lines?
Rev. Lynn. The courts.
Mr. Forbes. Does the President--the courts do it? So then
that means that the only way I know if I have a protected right
under the First Amendment is for the court to tell me, which I
think in and of itself can be a rather chilling impact on my
First Amendment right.
But, based on where the court currently is, their standard
is that the State has to have a compelling State interest and
that they have to impose that with the least restrictive means
possible. Would you agree that is the current standard?
Rev. Lynn. That is a part of the test. You do have to look
at whether there is a burden on religion to begin with, which
is in my example----
Mr. Forbes. I agree, you have to some burden, but I don't
think the court always says it has to be the substantial
burden, because it protects First Amendment rights.
But you would agree that that is the current court test,
that it has to be a compelling State interest and the least
restrictive means possible?
Rev. Lynn. In application of the Religious Freedom
Restoration Act, absolutely, that is the standard.
Mr. Forbes. And since----
Rev. Lynn. Unfortunately, all those terms are now at issue
before courts----
Mr. Forbes. And since----
Rev. Lynn [continuing]. Because, Congressman----
Mr. Forbes [continuing]. My time has expired, my red light
is on, I would just conclude by saying, I think to change that
standard would be the radical redefinition of religious
liberty.
And, with that, Mr. Chairman, I yield back.
Mr. Franks. I thank the gentleman. I wish we had more
Forbes around.
I would now yield to Mr. Johnson for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Dean Staver, are you the same Mathew D. Staver as is Mathew
D. Staver, PA?
Mr. Staver. I had a commercial law firm that was Mathew D.
Staver, PA.
Mr. Johnson. Was that you, or was that a separate person?
Mr. Staver. In Florida, if you name your law firm after
your--in a situation like that, it was me, but it was also
other attorneys in my law firm that I hired. We had up to 40
employees and 10 attorneys. That was back in the 1990's.
Mr. Johnson. Did you give birth to that entity, to that
person, Mathew D. Staver, P.A.? Did you give birth to it?
Mr. Staver. I incorporated it under the laws of the State
of Florida.
Mr. Johnson. So a corporation is not the product of a union
between a man and a woman?
Mr. Staver. Not the last time I checked.
Mr. Johnson. And a corporation has no ability to join a
church, does it?
Mr. Staver. No ability to join a church?
Mr. Johnson. Uh-huh.
Mr. Staver. A corporation could be an integrated auxiliary
of a church and be part of a church.
Mr. Johnson. Well, I mean, a person joining a church gets
baptized. You have never heard of a corporation being baptized,
have you?
Mr. Staver. I have not, but if I were Mathew D. Staver,
P.A., and I got baptized, I would be Mathew D. Staver being
baptized.
Mr. Johnson. You would be a natural person born to a man
and a woman who decided to go to church and be baptized, right?
Mr. Staver. Yes, operating as Mathew D. Staver, P.A.
Mr. Johnson. But, now, Mathew D. Staver, P.A., does not
have that ability, does it?
Mr. Staver. Well, we never tried it, that is for sure.
Mr. Johnson. Well, I have never heard of it being done,
myself.
In fact, an entity such as Mathew D. Staver, P.A., which
was created 25 years ago, is actually dead, is it not?
Mr. Staver. That is correct. It has been dissolved and has
passed on to another world.
Mr. Johnson. But it has not passed on to heaven, however.
Mr. Staver. I don't know where it is, actually.
Mr. Johnson. It did not pass to----
Mr. Staver. I didn't have that conversation before we
dissolved it.
Mr. Johnson. It did not pass through the pearly gates and
enter the kingdom of heaven, did it?
Mr. Staver. No, but its creator certainly----
Mr. Johnson. Well, I am not talking about Mathew D. Staver.
I am talking about Mathew D. Staver, P.A., your baby. And that
baby is dead. But you could always bring it back to life if you
paid the fees down there in Florida and had it reborn, because
it----
Mr. Staver. You could potentially resurrect it, yes.
Mr. Johnson. Yeah. Yeah. And that would be something that
you as a person can do.
Mr. Staver. I could do that.
Mr. Johnson. And, now, Mathew D. Staver has no conscience.
Mr. Staver. Mathew D. Staver has no conscience? Or Mathew
D. Staver, P.A.?
Mr. Johnson. Mathew D. Staver, P.A., has no conscience.
Mathew D. Staver, P.A.
Mr. Staver. Mathew--yeah. Mathew D. Staver, just for the
record, since we are on the record----
Mr. Johnson. Does have a conscience?
Mr. Staver [continuing]. Does have a conscience. But Mathew
D. Staver, P.A., reflects the values of the incorporator or the
creator, which was me.
Mr. Johnson. But it doesn't have a soul, though, does it?
Mathew D. Staver, P.A., it doesn't have a soul, does it?
Mr. Staver. No, not that I am aware of.
Mr. Johnson. Well, not that I am aware of either. Now----
Mr. Franks. Do any lawyers have souls? Just for
clarification.
Mr. Staver. Yeah. And since we are on the record,
definitely, they do have souls. So----
Mr. Johnson. Well, would you contend that a corporation
that can't go to heaven, it can be reborn in perpetuity if you
pay money, it is not born to the union between a man and a
woman, it doesn't have a soul, it doesn't have a heart, doesn't
attend church, doesn't get baptized, can't pay tithes and
offerings, do you contend that a corporation has a First
Amendment right upon which it can refuse to provide insurance
coverage for specific medical treatments to an employee legally
entitled to the coverage because it asserts a First Amendment
right to freedom of religion?
Mr. Staver. Yes, I do. And I know a lot of people who have
not been baptized, don't pay tithes, don't go to church, don't
have a heart, and I don't know whether they have a soul of
whatever, but----
Mr. Johnson. Well, you know they----
Mr. Staver.--I know that they can go through plastic
surgery and medical treatment to stay alive, that they still
have rights as a person.
Mr. Johnson. Pastor Staver, you know that every human being
has a soul.
Mr. Staver. Oh, sure.
Mr. Johnson. You know that.
Mr. Staver. Yeah.
Mr. Johnson. But you also know that no corporation is equal
to a person and no corporation has a soul. You know that.
Mr. Staver. There are actually corporations, not to be
technical, that are called ``corporations sole,'' but that
doesn't mean you have a soul. However----
Mr. Johnson. I mean in the way that----
Mr. Staver.--I believe that corporations, especially those
that are closely held corporations, as in the case of Hobby
Lobby, reflect the values of the creator, as Mathew D. Staver
reflected my values. Mathew D. Staver, P.A., was a reflection
and an extension of Mathew D. Staver.
Mr. Johnson. But it did not have its own First Amendment
right to freedom of speech and----
Mr. Staver. Yes, it----
Mr. Johnson [continuing]. Freedom of religion, did it?
Mr. Staver. Yes, I believe it does.
Mr. Johnson. All right.
Mr. Staver. Of course, the issue of freedom of religion is
before the court, but free speech has already been decided.
Mr. Johnson. Free speech has already been decided, and that
is what really scares me about a freedom-of-religion issue
being before the U.S. Supreme Court at this particular time. It
scares me.
And, with that, I will yield back.
Mr. Franks. I thank the gentleman.
Well, while we have debated whether corporations have
hearts and souls, sometimes we--there are those of us that
believe that the unborn do, in fact, have hearts and souls and
that when they are aborted it assaults their integrity and
dignity and that some Christians would rather not subsidize
that and feel like that under the Constitution we should have
that right.
So I have just tried to pull together a few pieces of the
testimony here. I appreciate all of you for being here. And I
hope all of us consider the importance of religious freedom.
This has been a very lively debate, and if there really is a
God, it might be relevant.
So, with that, all Members have--let's see. Again, thank
you all for attending, and this concludes today's hearing.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
And I thank the witnesses, and I thank the members of the
audience.
And this meeting is adjourned.
[Whereupon, at 4:48 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Ranking Member, Subcommittee
on the Constitution and Civil Justice
Religious freedom is a fundamental pillar of American life.
Whatever one's religious beliefs, our Constitution enshrines the notion
that the government remain neutral with respect to religious belief,
neither favoring one religion over others, nor favoring religious
belief over non-belief.
Our Constitution and statutes also require that the government not
substantially burden the free exercise of religion absent a compelling
interest and a less burdensome means of meeting that interest.
In expounding upon the meaning of these Constitutional provisions,
Thomas Jefferson wrote in a letter to the Danbury Baptist Association
in 1802: ``I contemplate with sovereign reverence that act of the whole
American people which declared that their legislature should `make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof,' thus building a wall of separation between Church
and State.''
It is because religious freedom is so fundamental that it is
protected in the very first Amendment in the Bill of Rights.
It is also why I was the sponsor of Tennessee's Religious Freedom
Restoration Act back in January 1998, when I was a member of the
Tennessee Senate.
Like the federal RFRA, the Tennessee RFRA protects religious
liberty by ensuring that any governmental action that substantially
burdens the free exercise of religion is prohibited unless there is a
compelling state interest.
Tennessee's RFRA, like the federal RFRA, seeks to strike a balance
between the fundamental right to practice one's religion free from
government interference and the ability of the government to perform
its basic duties, including the protection of public health and safety
and fighting discrimination.
Any discussion of religious liberty must also include a discussion
of the threats--both governmental and non-governmental--to members of
minority religions.
For example, as Reverend Barry Lynn, one of our witnesses, notes in
his written testimony, a Muslim congregation in Murfreesboro, Tennessee
faced intimidation and threats of violence from the local community
when it attempted to construct a new mosque. While the mosque
ultimately was built, the legal fight over its construction ended only
recently, at great cost to the congregation for a fight that it should
never have had to fight.
This example, which, unfortunately, is only one of many, reminds us
that the Bill of Rights' fundamental purpose is to protect the
minority, the unpopular, and the non-mainstream from majority tyranny.
Where one's right to free exercise of religion ends and majority
tyranny begins will be the crux of our discussion today.
Seven years ago, this Committee heard from Monica Goodling, who at
that time had just resigned as a Justice Department official,
concerning hiring practices at the Department during the Bush
Administration.
Ms. Goodling was a graduate of Regent University Law School, which,
according to its website, seeks to provide legal training with ``the
added benefit of a Christian perspective through which to view the
law.''
There was evidence at the time that Ms. Goodling and others
screened job candidates for career positions at the Justice Department
based on their partisan affiliations. Although she denied it when I
asked her, it stands to reason that religious belief could have also
played a role in hiring decisions.
A religious litmus test for public office or for career public
service positions has no place in a society that values religious
liberty.
More broadly, attempts to re-make our Nation's longstanding
political and legal culture so as to give already-dominant religious
groups more of the coercive power of government must be confronted, for
if such attempts are successful, the outcome would represent a threat
to a free society.
I look forward to a vibrant discussion.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Religious freedom was one of the core principles upon which our
Nation was founded.
The First Amendment protects this fundamental freedom through two
prohibitions. The Establishment Clause prohibits the federal government
from issuing a law respecting the establishment of religion and the
Free Exercise Clause prohibits the government from affecting the free
exercise thereof.
When discussing the government's compliance with these
prohibitions, we should keep in mind several points.
To begin with, the real threat to religious liberty is continuing
religious bias or intolerance against members of minority religions.
For example, American Muslim communities across the United States
since September 11, 2001 have been targets of often hostile communities
and sometimes even government actions.
There have been numerous well-founded complaints of religious
profiling by federal, state, and local law enforcement agencies. In
fact, bills have been introduced in Congress as well in various state
legislatures targeting Islam.
It was recently reported that the Transportation Security Agency is
using a ``behavioral detection program'' that appears to focus on the
race, ethnicity and religion of passengers.
As many of you may know, I represent Michigan's 13th District,
which is home to one of America's largest Muslim communities. So, I am
particularly disheartened by the overt challenges these communities
face.
Targeting American Muslims for scrutiny based on their religion
violates the core principles of religious freedom and equal protection
under the law. All Americans--regardless of their religious beliefs--
should know that their government will lead the effort in fostering an
open climate of understanding and cooperation.
Yet in the name of religious freedom we cannot undermine the
government's fundamental role with respect to protecting public health
and ensuring equal treatment under the law.
Currently pending before the United States Supreme Court are two
cases--Sebelius v. Hobby Lobby Stores and Consestoga Wood Specialities
v. Sebelius--that will hopefully clarify this issue.
The issue in those cases is whether the government can require can
require for-profit corporations that provide group health plans for
their employees to provide female employees with plans that cover birth
control and other contraceptive services as required by the Affordable
Care Act, notwithstanding the religious objections of the corporations'
owners to contraceptives.
I along with 90 of my colleagues in the House filed an amicus brief
in those cases disputing that the claim that corporate plaintiffs are
``persons'' for the purposes of the Free Exercise Clause.
And, even if they are capable of having religious beliefs, those
corporations are not entitled to relief under the Religious Freedom
Restoration Act.
Moreover, the Affordable Care Act's mandate, we argue, serves two
compelling governmental interests--namely, the protection of public
health and welfare and the promotion of gender equality--that outweigh
whatever attenuated burden the mandate might place on the corporations'
free exercise rights.
Finally, as even some of the Majority witnesses acknowledge, the
Obama Administration's enforcement efforts with regard to protecting
religious freedom--in the workplace and elsewhere--are to be commended.
On various fronts, the Administration has striven to take a
balanced approach to this issue. For example, it added a religious
employer exemption to the HHS contraceptive mandate in response to
objections from religious employers.
These efforts ensure that America continues to foster a safe and
welcoming environment for all religious practices and communities
without sacrificing our other freedoms and needs.
Material from the Anti-Defamation League (ADL) submitted by the
Honorable Steve Cohen, a Representative in Congress from the State of
Tennessee, and Ranking Member, Subcommittee on the Constitution and
Civil Justice
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]