[Senate Hearing 108-707]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-707

                    BEYOND THE PLEDGE OF ALLEGIANCE:
         HOSTILITY TO RELIGIOUS EXPRESSION IN THE PUBLIC SQUARE

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 8, 2004

                               __________

                          Serial No. J-108-80

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                      JOHN CORNYN, Texas, Chairman
JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
                  James C. Ho, Majority Chief Counsel
               Robert F. Schiff, Demdcratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement...........................................    77
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     4
    prepared statement...........................................    83
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    93
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   102
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    16

                               WITNESSES

Clark, William ``Barney'', Balch Springs, Texas..................    20
Edwards, Hon. Chet, a Representative in Congress from the State 
  of Texas.......................................................    10
Garnett, Richard W., Associate Professor of Law, Notre Dame Law 
  School, South Bend, Indiana....................................    41
Hearn, Nashala, Muskogee, Oklahoma...............................    17
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana..     8
Moore, Roy S., Former Chief Justice, Supreme Court of Alabama, 
  Birmingham, Alabama............................................    24
Munoz, Vincent Phillip, Civitas Fellow of Religion and Public 
  Life, American Enterprise Institute, Washington, D.C., and 
  Assistant Professor of Political Science, North Carolina State 
  University.....................................................    46
Rogers, Melissa, Visiting Professor of Religion and Public 
  Policy, Wake Forest University Divinity School, Winston-Salem, 
  North Carolina.................................................    43
Rosenauer, Steven, Bradenton, Florida............................    18
Shackelford, Kelly, Chief Counsel, Liberty Legal Institute, 
  Plano, Texas...................................................    28
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama...     6
Walker, J. Brent, Executive Director, Baptist Joint Committee on 
  Public Affairs, Washington, D.C................................    22

                         QUESTIONS AND ANSWERS

Responses of Roy Moore to questions submitted by Senator Kennedy.    60
Responses of Vincent Munoz to questions submitted by Senator 
  Cornyn.........................................................    63
Responses of Vincent Munoz to questions submitted by Senator 
  Kennedy........................................................    66
Responses of Kelly Shackelford to questions submitted by Senator 
  Cornyn.........................................................    68
Responses of Kelly Shackelford to questions submitted by Senator 
  Kennedy........................................................    70

                       SUBMISSIONS FOR THE RECORD

Clark, William ``Barney'', Balch Springs, Texas, prepared 
  statement......................................................    72
Edwards, Hon. Chet, a Representative in Congress from the State 
  of Texas, prepared statement...................................    81
Garnett, Richard W., Associate Professor of Law, Notre Dame Law 
  School, South Bend, Indiana, prepared statement................    85
Hearn, Nashala, Muskogee, Oklahoma, prepared statement...........    95
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana, 
  prepared statement and attachment..............................    97
Liberty Legal Institute, Plano, Texas, examples of hostility to 
  religious expression...........................................   104
Moore, Roy S., Former Chief Justice, Supreme Court of Alabama, 
  Birmingham, Alabama, prepared statement........................   133
Munoz, Vincent Phillip, Civitas Fellow of Religion and Public 
  Life, American Enterprise Institute, Washington, D.C., and 
  Assistant Professor of Political Science, North Carolina State 
  University, prepared statement.................................   138
People for the American Way Foundation, Elliot M. Mincberg, Vice-
  President and Legal Director, Washington, D.C., letter.........   141
Rogers, Melissa, Visiting Professor of Religion and Public 
  Policy, Wake Forest University Divinity School, Winston-Salem, 
  North Carolina, prepared statement.............................   143
Rosenauer, Steven, Bradenton, Florida, prepared statement........   162
Shackelford, Kelly, Chief Counsel, Liberty Legal Institute, 
  Plano, Texas, prepared statement...............................   164
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama, 
  prepared statement.............................................   170
Walker, J. Brent, Executive Director, Baptist Joint Committee on 
  Public Affairs, Washington, D.C., prepared statement...........   172

 
 BEYOND THE PLEDGE OF ALLEGIANCE: HOSTILITY TO RELIGIOUS EXPRESSION IN 
                           THE PUBLIC SQUARE

                              ----------                              


                         TUESDAY, JUNE 8, 2004

                              United States Senate,
Subcommittee on the Constitution, Civil Rights and Property 
                                                    Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:11 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
Chairman of the Subcommittee, presiding.
    Present: Senators Cornyn, Sessions, and Feingold.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Chairman Cornyn. This hearing of the Senate Subcommittee on 
the Constitution, Civil Rights and Property Rights will come to 
order.
    I want to thank Senator Hatch, the Chairman of the full 
Committee, for scheduling this hearing, as well as thank the 
distinguished Ranking Member, Senator Feingold, who will be 
here momentarily, and his staff for working with my office to 
help make this hearing possible.
    We have a number of witnesses, and that is one reason why I 
didn't want to delay the hearing any longer, because many have 
come an awful long way to be here with us, so I am anxious to 
get to their testimony as soon as possible.
    I will make a few brief remarks, and then Senator Feingold, 
of course, will have an opportunity to make any remarks he sees 
fit. And, without objection, my full written statement will be 
made part of the record. Then, of course, we will have a panel 
of Members of Congress. Senator Shelby, Senator Landrieu, and 
Representative Edwards will be our first panel, and we will 
proceed from there.
    The United States Supreme Court will soon decide whether 
the First Amendment forbids school teachers across America 
leading students in the voluntary recitation of the Pledge of 
Allegiance, simply because the Pledge affirms what we all know 
to be true--that our Nation was founded ``under God.''
    The Senate has unanimously and repeatedly condemned the 
Ninth Circuit's contrary ruling striking down the Pledge. A 
majority of the Members of this Subcommittee filed the first 
amicus brief in the U.S. Supreme Court defending the Pledge on 
the merits. And the vast majority of Americans agree with the 
Senate--rather than with the Ninth Circuit and the American 
Civil Liberties Union--on the constitutionality of the Pledge.
    But however the Court ultimately rules, the Pledge case 
reminds us of a broader, systemic problem caused by the Court's 
previous rulings: an unjustifiable hostility to religious 
expression in public squares across America. And just as there 
is bipartisan agreement on the constitutionality of the Pledge 
of Allegiance, so should there be bipartisan agreement that 
Government should never be hostile to expressions of faith.
    Accordingly, our hearing today is entitled ``Beyond the 
Pledge of Allegiance: Hostility to Religious Expression in the 
Public Square.'' Our witnesses will examine issues of 
Government discrimination against religious expression 
generally, including both discrimination against religious 
versus non-religious expression in Government speech, as well 
as discrimination against purely private expressions of faith.
    It is difficult to think of a provision of the United 
States Constitution that has been so badly misunderstood and 
misapplied as the First Amendment with respect to the subject 
at hand or with worse consequences for our coarsened culture 
and discourse.
    The First Amendment contains two important provisions with 
respect to religious liberty. It respects the ``free exercise'' 
of religion against Government interference or intrusion. And 
it also provides that Congress shall make no law ``respecting 
an establishment of religion.''
    The Founders included the Establishment Clause because they 
wanted to forbid Government from taking any action either to 
establish an official state church or to favor a particular 
religious denomination in some way.
    Notably, nothing in these provisions requires Government to 
be hostile to religious speech or religious practice or 
religious liberty overall. The Constitution nowhere requires 
Government to expel expressions of faith from the public 
square. Nor does the Establishment Clause forbid Government 
from acknowledging, indeed celebrating, the important role that 
faith has historically played in the lives of the American 
people, dating back to the Founders themselves.
    This week, the Nation mourns the passing of a great man, 
President Ronald Reagan. I think he spoke for the American 
people when he said in 1983, and I quote, ``When our Founding 
Fathers passed the First Amendment, they sought to protect 
churches from government interference. They never intended to 
construct a wall of hostility between government and the 
concept of religious belief itself.''
    After all, references to faith permeate our Nation's 
history. References to faith can be found across our Nation's 
most important institutions of Government, in our fundamental 
legal documents, and on our cherished cultural treasures. Our 
currency is emblazoned with the phrase ``In God We Trust.'' The 
public buildings of all three branches of Government--including 
the United States Supreme Court--are decorated with numerous 
references to God. The Declaration of Independence acknowledges 
the Founders' ``firm reliance on the protection of Divine 
Providence.'' It talks about ``nature's God'' and our 
``Creator,'' while the Constitution itself refers to ``our 
Lord.''
    An Act of Congress authorized President Washington to issue 
the Nation's first Thanksgiving Proclamation. Moreover, that 
Proclamation specifically referenced the ``duty of all Nations 
to acknowledge the Providence of Almighty God, to obey his 
will, to be grateful for his benefits, and humbly to implore 
his protection and favor.'' And on the very day that Congress 
proposed the First Amendment, it also approved the Northwest 
Ordinance, which expressly directed to U.S. territorial 
governments that ``[r]eligion, morality, and knowledge, being 
necessary to good government and the happiness of mankind, 
schools and the means of education shall forever be 
encouraged.''
    So there is ample precedent and strong tradition to support 
Government speech that acknowledges, accommodates, and indeed 
celebrates the importance of faith in the lives of the American 
people.
    Moreover, the First Amendment specifically protects private 
religious expression in the public square by guaranteeing both 
the free exercise of religion and freedom of speech against 
Government interference. As Justice Scalia has aptly written, 
``a priest has as much liberty to proselytize as a patriot''--a 
principle that holds in the public square the same as on 
private property.
    Despite these clear constitutional commands, however, some 
courts, led by the United States Supreme Court, have 
demonstrated a clear and unmistakable hostility towards 
religious expression in the public square.
    Given this troubling and incoherent jurisprudence, it is no 
surprise that local governments have far too often demonstrated 
similar hostility to religious expression as a result. Whether 
out of ideological motivation, ignorance of the law, or simple 
fear of litigation, local governments across the Nation have 
repeatedly attempted to banish faith from the public square.
    Today, we will hear the personal stories of citizens who 
have experienced Government hostility to religious expression 
firsthand.
    They are just a few of the countless examples from across 
the country. Children across America are being barred from 
sharing candy canes with classmates. Teachers are being 
reprimanded for circulating the President's Proclamation of a 
Day of National Prayer through their school e-mail accounts. 
Schools are specifically targeting religious groups and 
excluding them from their campuses.
    The situation has become so extreme that even patriotic and 
other non-religious references to faith have been attacked. It 
is simply patriotic to recite the Pledge of Allegiance, yet the 
Ninth Circuit believes it is unconstitutional in public 
schools. The Los Angeles County seal is under attack by the 
American Civil Liberties Union because it includes a depiction 
of a cross--a cross that simply reflects ``the historical 
importance of the Catholic missions'' in California.
    This pervasive hostility to faith is wrong, and it is 
without constitutional basis.
    I hope today's hearing will accomplish two things. First, 
we must reaffirm our bipartisan commitment to religious freedom 
and liberty in the public square. And, second, we must 
recognize that unfortunate and unjustified hostility to 
religious expression is pervasive, and it must be stopped.
    The restoration of religious liberty and celebration 
envisioned by the Founders should be a bipartisan effort. The 
judicial attack on the Pledge of Allegiance has been 
unanimously condemned by the United States Senate. And both the 
Clinton and Bush administrations have issued Department of 
Education guidelines forbidding discrimination against religion 
by public schools, consistent with a Congressional mandate in 
the No Child Left Behind Act.
    I began my remarks by quoting public expenditure review. I 
would like to close with the words of President Clinton, who 
stated in 1995: ``Americans feel that instead of celebrating 
their love for God in public, they're being forced to hide 
their faith behind closed doors. That's wrong. Americans should 
never have to hide their faith. But some Americans have been 
denied the right to express their religion and that has to 
stop. That has happened and it has to stop.''
    I agree. Americans should never have to hide their faith. 
They have the constitutional right to exercise their faith 
openly--not just at home, but in the public square as well.
    [The prepared statement of Chairman Cornyn appears as a 
submission for the record.]
    Chairman Cornyn. With that, I will turn the floor over to 
the distinguished Ranking Member, Senator Feingold, for any 
opening statement he cares to make.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    A guarantee of religious freedom was fundamental to our 
Nation's founding. The Pilgrims and other settlers braved 
crossing the Atlantic Ocean because they were fleeing religious 
persecution and wanted to live where they could exercise their 
religious beliefs freely. And so it is not surprising that a 
guarantee of the free exercise of religion without Government 
intrusion would be contained in the very first line of the 
first of ten rights guaranteed to every American in the Bill of 
Rights.
    The First Amendment to the Constitution provides, 
``Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof.'' In other 
words, the First Amendment contains two important guarantees of 
religious freedom: the Free Exercise Clause and the 
Establishment Clause. Americans have the right to exercise 
their religion, and Americans of any faith or no faith at all 
have the right to be free from Government establishment of 
religion in their lives. Together, the Free Exercise Clause and 
the Establishment Clause have allowed religion in our Nation to 
flourish. In addition, as President Bush has noted, preserving 
religious freedom has helped America avoid the wars of religion 
that have plagued so many cultures throughout history with 
deadly consequences.
    So, Mr. Chairman, with all due respect, I disagree a bit 
with the title of this hearing, ``Hostility to Religious 
Expression in the Public Square.'' At least in my experience, I 
do not think that there is such widespread hostility. There may 
be confusion. There may be some in our country who would like 
to censor all public expressions of religious faith, and there 
are others that may want to read the Free Exercise Clause in 
isolation and then ignore the Establishment Clause, even to the 
point of having a state-sponsored religion.
    The fact is that the First Amendment in its entirety has 
served our Nation well and has allowed religious expression to 
thrive and not be stifled. Americans are a deeply religious 
people, and yet we have no official state religion. Those two 
facts taken together succinctly express the genius of the 
Framers in the area of religious freedom. In recent years, 
there has been a lot of confusion about what the religion 
clauses of the First Amendment require and forbid. I hope that 
this hearing does clarify those areas of confusion, from the 
Pledge of Allegiance to religious garb in schools, to 
expression of religious faith by private citizens in public 
buildings or at public events, to Government-sponsored 
sectarian prayers at such events.
    Ours is a Nation built on diversity and religious 
pluralism. The legacy of religious liberty in our Nation is 
unparalleled in human history, and we in the Congress have a 
special duty to protect and nurture that legacy. I supported 
the Religious Freedom Restoration Act of 1993. I thought the 
Supreme Court had made a mistake in the Smith decision in 1990 
by reducing the protection of religious expression from 
governmental intrusion. I was disappointed when the Court later 
struck down the Religious Freedom Restoration Act as an 
inappropriate exercise of Congressional power.
    In 2000, Congress enacted the Religious Land Use and 
Institutionalized Persons Act and may need to enact further 
legislation to protect the free exercise of religion. But I 
hope it does so in a way that respects the Establishment Clause 
as well.
    Americans were acutely reminded of our Nation's tradition 
of religious freedom earlier this year when France banned 
religious articles and symbols in state schools. This meant 
that Christian, Jewish, Muslim, and Sikh students and students 
of other faiths would be denied the right to practice their 
faith once they entered the schoolhouse door. Thankfully, our 
Nation has never seen a similar effort to stifle individual, 
voluntary religious expression by students in our public 
schools, although there have been instances where Government 
officials misunderstood the law.
    As we will hear from Nashala Hearn this afternoon, she 
experienced one such unfortunate episode. But I am very pleased 
that her case reached the proper result--a result that 
reaffirms religious freedom.
    Like many Americans, Mr. Chairman, I disapproved of the 
Court of Appeals decision in Newdow v. U.S. Congress, the 
Pledge of Allegiance case. I joined my Senate colleagues when 
we unanimously expressed our view that the Pledge is 
constitutional. The phrase ``under God'' in the Pledge is not 
and should not be construed as Government establishment of 
religion. The Supreme Court will issue its decision in the 
Newdow case any day now, and I, like most Americans, am hopeful 
that the Supreme Court will uphold the Pledge.
    While I do think the lower court went too far in finding a 
violation of the Establishment Clause, we should, nevertheless, 
recognize that the Establishment Clause has an important role 
in protecting all Americans and their right to exercise their 
religion or no religion at all.
    Today, we will hear from Steven Rosenauer, whose 
experience, I believe, will illustrate the need to be mindful 
of the importance of the Establishment Clause as we consider 
the issue of religious expression at public events.
    I am also very pleased that we have Reverend Brent Walker 
and Professor Melissa Rogers here this afternoon. Reverend 
Walker is with the Baptist Joint Committee on Public Affairs 
and is an ordained Baptist minister. He understands the legal, 
practical, and theological dimensions of religious freedom. 
Professor Rogers was formerly with the Pew Forum on religion 
and public life, and currently a professor at Wake Forest 
University's Divinity School. She will give us insight into the 
legal and policy issues involved in this debate, which is as 
old as the republic itself.
    Finally, I want to welcome our Senate colleagues on the 
first panel, of course, and Representative Chet Edwards of 
Texas, one of the most passionate defenders of religious 
liberty in the Congress and in our Nation.
    In sum, Mr. Chairman, I believe that the First Amendment 
provides parameters that have been absolutely critical in 
protecting religious freedom and allowing Americans to thrive 
in and practice whatever religion they choose. These are 
parameters that have served our Nation well since its founding. 
Despite the title of this hearing, I believe that the First 
Amendment is alive and well in our country, as is religion.
    Thank you, Mr. Chairman. I do look forward to the 
testimony.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Senator Feingold.
    And, with that, we will turn to our distinguished panel and 
ask you, Senator Shelby, if you will lead off and make such 
statement as you see fit.

STATEMENT OF HON. RICHARD SHELBY, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Shelby. Thank you, Mr. Chairman. First of all, I 
would ask that my entire written statement be made part of the 
record.
    Chairman Cornyn. Without objection.
    Senator Shelby. Chairman Cornyn, Senator Feingold, Senator 
Sessions, and Members of the Subcommittee, I want to thank you 
for holding this important hearing and for having me here to 
discuss briefly the Constitution Restoration Act. Joined by 
Senators Miller, Brownback, Allard, Graham, Bunning, Lott, and 
Inhofe, I introduced Senate bill 2323, the Constitution 
Restoration Act. Like millions of Americans, I believe that the 
courts have exceeded their power. This legislation recognizes 
the rights of the States and the people as embodied in the 
Declaration of Independence and the Constitution, Ninth and 
Tenth Amendments, to acknowledge God. In short, this 
legislation goes to the very foundation of our country and the 
legitimacy of our system of Government.
    Over the years, we have seen a disturbing and growing trend 
in our Federal courts to deny the rights of our States and our 
citizens to acknowledge God openly and freely. These tortured 
legal decisions distort our Constitution, our Nation's history, 
and its tradition in an effort to secularize our system of 
Government and to divest morality from our rule of law.
    Four years ago, Mr. Chairman, the Supreme Court determined 
that students could not engage in voluntary prayer at a school 
football game. Last year, as you noted, the Ninth Circuit Court 
of Appeals ruled that it was unconstitutional to recite the 
words ``one Nation, under God'' in the Pledge of Allegiance. 
And a district court in my home State of Alabama ruled that it 
was unconstitutional to display the Ten Commandments.
    I believe it is unfortunate that there are so many examples 
to point to because the simple fact is our Government and our 
laws are based on Judeo-Christian values and a recognition of 
God as our Creator. The Declaration of Independence, by which 
we justify the very foundation of our political system, holds 
these truths to be self-evident, ``that all men are created 
equal, that they are endowed by the Creator with certain 
inalienable rights.''
    Our motto, Mr. Chairman, as you noted, is ``In God We 
Trust.'' It is enshrined on our currency. Our national anthem 
recognizes our motto as ``in God is our trust.''
    As Federal officials, we each took an oath of office 
swearing to uphold the Constitution, so help me God. The 
President takes a similar one. State and local officials and 
our military personnel all swear a similar oath. Jurors and 
witnesses in our State and Federal courts take an oath, as do 
witnesses before Congress, to tell the truth, so help me God.
    Our courts, including the Supreme Court, recognize God in 
their official proceedings. Both the House and Senate 
acknowledge God through an opening prayer every morning. Our 
public buildings and monuments honor this heritage through 
various depictions of the basic moral foundations of our laws 
and our system of Government.
    My point, Mr. Chairman, is this: that you simply cannot 
divest God from our country. Our country has no foundation 
without a basic recognition that God invests us at birth with 
basic individual rights, such as the blessings of liberty that 
we all enjoy as Americans.
    There is no question that the courts have exceeded and 
abused their power, in my opinion. The Constitution Restoration 
Act recognizes the rights of the States and the people to 
acknowledge God as embodied in the Declaration of Independence 
that you referenced and the Constitutions of the United States 
and the individual States.
    This recognition, I believe, Mr. Chairman, is the very 
basis for the First Amendment prohibition against the 
establishment of an official church or religion. The 
Constitution Restoration Act further prohibits Federal courts 
from basing their opinions on foreign law, contrary to the 
Constitution that they are sworn to uphold.
    The list of legal decisions abridging our right to 
acknowledge God is far too long. It is imperative that we 
exemplify how these decisions affect the lives of real people 
and that they are not just words on paper. I am pleased that 
the Committee under your leadership has taken this step and 
will hear testimony from individuals who have had their rights 
abridged, and I look forward to their testimony.
    Mr. Chairman, I thank you for allowing me to appear here, 
and I look forward to the others. Thank you.
    [The prepared statement of Senator Shelby appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Senator Shelby, for those 
thoughtful remarks and for your presence here today.
    Senator Landrieu, we are delighted to have you here and 
would be happy to hear any opening statement you might care to 
make.

STATEMENT OF HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE 
                          OF LOUISIANA

    Senator Landrieu. Thank you, Mr. Chairman, for inviting me 
to be part of this important hearing this morning, and I ask 
that my entire text be submitted to the record.
    Chairman Cornyn. Without objection.
    Senator Landrieu. But for the purposes, I will try to 
shorten it. I thank my colleagues for being present as well.
    I would like to begin my testimony with a quote from 
Benjamin Franklin, who we all think of as one of the foremost 
philosophers of democracy. He asked a very important question 
at the Constitutional Convention. ``In the beginning of the 
contest with Britain, when we were sensible of danger, we had 
daily prayers in this room for divine protection. Our prayers, 
sir, were heard, and they were graciously answered.'' He asked, 
``Do we imagine we now no longer need his assistance?''
    Mr. Chairman, we would do well to ask ourselves Mr. 
Franklin's question again today. The rituals all around us 
indicate that we do need God's assistance for our great 
experiment in democracy to work. We opened the Senate today 
with a prayer, led by our chaplain. It has been a tradition 
followed from the beginning of our Nation, over 200 years, and 
the Senate and our Nation are stronger for it.
    We are stronger because we acknowledge a higher power than 
our selfish interest. We are stronger because we honor the free 
practice of all religions. Our Nation is stronger because our 
Government does not endorse one religion over another. But 
while we maintain a separation between church and state, we do 
not separate God from our state.
    Mr. Chairman, this hearing could not be more timely. The 
United States Supreme Court is expected to announce a decision 
very quickly in the case of Elk Grove Unified School District 
v. Newdow before the end of this current session.
    As Members of this Subcommittee know, the Court of Appeals 
for the Ninth Circuit found that the phrase ``under God'' was 
not constitutional. The Pledge has been part of American life 
since 1942, and Congress added ``under God'' to the Pledge in 
1954.
    Like many of my colleagues, I was shocked by the Ninth 
Circuit decision. The day the decision was announced in June of 
2002, I introduced a constitutional amendment that simply says 
that references to God in the Pledge of Allegiance and on our 
currency do not effect an establishment of religion in 
violation of the First Amendment. It has been reintroduced in 
the 108th Congress as Senate Joint Resolution 7. Other Senators 
have cosponsored it with me, and I would ask that a copy of 
this resolution be placed in the record of this hearing.
    Chairman Cornyn. Without objection.
    Senator Landrieu. Mr. Chairman, you do not need to be a 
legal scholar to know that this decision is an affront to 
common sense. References to God are found in every one of our 
founding documents, from the Declaration of Independence to the 
Constitution itself, as well as the Pledge of Allegiance. 
President James Madison, who we appropriately acknowledge as 
the Father of the Constitution, wrote to the Virginia General 
Assembly, ``We have staked the whole future of American 
civilization not upon the power of Government. Far from it. We 
have staked the future of our political institutions upon our 
capacity to sustain ourselves according to the Ten Commandments 
of God.''
    Those of you on the Committee who have studied the writings 
of the Founders understand that there was broad difference 
among them about the nature of God and the role that religion 
played in their personal lives. But I do not think you could 
find anyone present at the creation of our Nation that doubted 
that Divine Providence played a role in our victory and in the 
crafting of the document that binds us together as the United 
States.
    So when we acknowledge that history with the phrase ``under 
God,'' we do little more than reiterate something that our 
Founding Fathers accepted as a fundamental truth. Only 
something greater than ourselves could have created America. 
Something more significant than self-interest was needed to 
make E Pluribus Unum. They thought that something was the power 
of the divine. The Founders have almost never given us reason 
to doubt their wisdom. And so because of that, the Founding 
Fathers wanted us to only amend the Constitution when it was 
absolutely necessarily, I believe, and just using an 
extraordinary remedy. So what I have done by introducing this 
acknowledges that, and I do not propose this change lightly. 
However, the Ninth Circuit simply went too far. The separation 
of church and state was intended to ensure neutrality between 
faiths by our Government, not to eliminate all references to 
God and religion from public life.
    Mr. Chairman, the Pledge of Allegiance has been part of the 
fabric of our country for 50 years. It has not been a tool of 
religious persecution, and no harm has come from it. I hope the 
Supreme Court uses common sense when it decides this case this 
month. If it decides to overrule the lower court and upholds 
the reference to God in the Pledge of Allegiance, then my 
amendment, S.J. Resolution 7, would not be necessary. I hope 
that that ends up being the case.
    If the Court, however, decides to uphold the lower court's 
decision, the Congress can and, in my opinion, should begin the 
process of restoring the proper balance between church and 
state and to restore the historical purpose of the Pledge of 
Allegiance by amending the Constitution.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Landrieu, and the text 
of S.J. Res. 7, appear as submissions for the record.]
    Chairman Cornyn. Thank you very much, Senator Landrieu, for 
being here today with the Subcommittee and for those remarks.
    Congressman Chet Edwards of Texas is here, and we welcome 
you to the Subcommittee and would be glad to hear any statement 
you might have.

 STATEMENT OF HON. CHET EDWARDS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF TEXAS

    Representative Edwards. Mr. Chairman, thank you very much. 
Senator Feingold, Senator Sessions, thank you for the chance to 
testify before you.
    I support Senator Landrieu's amendment, but let me just say 
right up front that this hearing today is not about who is for 
God and who is against God, who is for prayer and who is 
against prayer. And I think it is important for all of us on 
both sides of this issue not to try to suggest that division, 
directly or indirectly.
    While, yes, our Founding Fathers referenced Divine 
Providence in the Declaration, I would challenge any Member of 
the Subcommittee or anyone in this room to show me where the 
reference to God is made in the Constitution. They purposely 
chose not to put God in the Constitution, not because of 
disrespect to God but out of total respect to God and Divine 
Providence. Our Founding Fathers in their wisdom understood 
that secular Government should not have power over American 
citizens' souls and religious faith, and that is what the 
Establishment Clause is all about.
    One cannot fully discuss the issue of religion in the 
public square without first addressing the fundamental 
question: What is the proper relationship between church and 
state? Mr. Madison and Mr. Jefferson thought the question so 
important that they debated it for a decade in the Virginia 
Legislature. Our Founding Fathers placed so much importance on 
the question of church and state that they chose to put their 
answer to that question not just anywhere, but in the first 16 
words of the First Amendment of the Bill of Rights: ``Congress 
shall pass no law respecting an establishment of religion, or 
prohibiting the free exercise thereof.''
    In his letter to the Danbury Baptists of Connecticut in 
1802, Mr. Jefferson said the intent of this constitutional 
principle was to build a wall of separation between church and 
state. Perhaps America's greatest single contribution to the 
world from our experiment in democracy has been the religious 
freedom and tolerance that have resulted from the principle of 
church/state separation. In fact, I would ask anyone to show me 
any nation where direct government funding or entanglement with 
religion has resulted in more religious freedom or tolerance 
than we have in America today.
    As a person of faith, a lifelong Methodist, and a son-in-
law of a Baptist minister, I thank God that we live in a Nation 
where our Founding Fathers had the wisdom to put religion and 
religious freedom on a pedestal far above the reach of 
politicians. Our Founding Fathers understood the lesson of 
human history that three things happen when Government and 
politicians get involved in religion: first, the rights of 
religious minorities are limited; second, politicians cannot 
withstand the temptation to use religion as a means to their 
own political ends; and, third, Government funding of churches, 
synagogues, and mosques ultimately harms houses of worship by 
undermining their independence and by creating a public 
impression that they are nothing more than a bureaucratic arm 
of the state. If anyone doubts that, simply look at church 
attendance on the Sabbath in European nations that fund their 
churches.
    Perhaps this lesson of history, these three lessons are why 
I would warn religious leaders and people of all faiths to be 
cautious when any politician, me or you or anyone else, say, 
``I am from the Government and I am here to help you.''
    Mr. Chairman, as this Subcommittee and House committees 
move forward on the important question of the proper role 
between church and state--and I salute you for focusing on this 
issue--I would respectfully make three suggestions.
    First, since the issue of religious freedom is so important 
to all Americans, and since our Founding Fathers debated this 
question for years and then chose to make church/state 
separation the first principle enunciated in the Bill of 
Rights, I hope this Subcommittee will hold a number of in-depth 
hearings on this issue, inviting legal, religious, and academic 
scholars from differing viewpoints. To do anything less in the 
House or Senate would be a disservice to the First Amendment 
and the religious freedom and tolerance it has protected so 
magnificently for over two centuries.
    Second, this Committee's public notice said it will 
examine, and I quote, ``Government discrimination against 
religious expression.'' In doing so, I hope you will have 
hearings on the implications of denying American citizens tax-
funded jobs solely because of their religious faith. While I 
support many parts of President Bush's faith-based initiatives, 
I strongly disagree with the provisions that make it legal for 
hiring and firing decisions for public jobs to be based 
solely--solely--on one's religious faith. No American citizen 
should have to pass another citizen's private religious test to 
qualify for a tax-funded public job. That type of religious 
discrimination deserves this Committee's attention.
    Also on the issue of discrimination, as a Christian I 
revere and try to live by those Commandments every day and do 
my best to teach them to our two young sons. But I hope you 
will address these questions regarding the Ten Commandments. Do 
we really want politicians and public officials to decide which 
specific religious doctrine or beliefs should and should not be 
prominently placed in public buildings, courthouses, and public 
schoolhouses?
    Mr. Chairman, it is a Pandora's box. Either all groups, 
including religious supporters of Islamic militants, Wiccans, 
several hundred of which live in my district, the Church of the 
Creator, and others, be allowed to display their religious 
beliefs on public buildings or perhaps on the wall behind you, 
or we can follow the Chinese Government's model where 
politicians have the power to decide which religious doctrine 
is officially approved by the state and which is not.
    Third, let's debate both sides of this vital and 
complicated issue of church/state separation with respect for 
those with differing viewpoints. I have great respect for Mr. 
Towey of the White House Office of Faith-Based Initiatives, and 
I am genuine about that respect. But I believe he went too far 
last week when he defined the church/state debate as a 
``cultural war.'' Groups such as the Joint Baptist Committee, 
Methodists, and the American Jewish Committee are strong 
defenders of church/state separation. Are they guilty of 
fighting a cultural war against religious expression in the 
public place? I think not.
    Even if you genuinely disagree with these religious groups' 
views, we should respect the fact that these people of faith 
believe what they are fighting for is to protect religious 
freedom from Government entanglement. I believe Mr. Towey owes 
many people of faith an apology for suggesting they are 
involved in perpetrating a cultural war, in effect, a religious 
war.
    As we fight together against Osama bin Laden and the war on 
terrorism, let's leave the lexicon of war to our Army generals 
in Iraq and Afghanistan and keep it out of honest debates on 
religious freedom here at home. Our Nation doesn't deserve the 
kind of divisiveness that could be caused by putting religious 
debates in the context of being a war, cultural, religious, or 
otherwise.
    This Committee, in announcing and naming this hearing, did 
not go so far as to describe this debate as a war, and I 
appreciate that and respect you for that. However, it did use 
phrases such as ``hostility to religion'' and ``hostile 
religious expression.'' Perhaps there are some in this country 
that are hostile to religion, but not many of the people of 
great faith, of genuine faith, who will stand up in defense of 
the Establishment Clause and keeping Government out of our 
churches and out of our religious faith.
    The debate, as I said, is not about who is on God's side 
and who is not. Religious critics were dead wrong when they 
attacked Mr. Madison and Mr. Jefferson two centuries ago and 
accused them of being anti-religion because of their belief in 
church/state separation. Let us not make that mistake again 
today.
    In conclusion, the Bill of Rights has never been amended in 
over two centuries, especially when it comes to the first 
freedom, which we all revere--religious freedom. We should move 
carefully and thoughtfully before we tamper with a system of 
religious freedom and tolerance that is the model and hope of 
the world.
    It would be ironic to have Americans preaching the 
principle of church/state separation in Iraq while not 
practicing it here at home. We should practice what we preach.
    The American people and the issue of how to best protect 
religious freedom deserve a thoughtful, reasoned debate, and I 
thank the Chairman and the Members for allowing that debate to 
begin today.
    [The prepared statement of Representative Edwards appears 
as a submission for the record.]
    Chairman Cornyn. Thank you very much, Congressman Edwards. 
I thank you for expressing your views, your strongly held 
views, and I hope that you will get a chance to stick around 
for the rest of this hearing because I think what you 
described, which would be a more or less comprehensive review, 
including testimony from legal scholars on this issue, would be 
just exactly what it is that you asked us to do. And certainly 
this hearing was not billed as asking whether people were for 
God or against God. Really, rather than the establishment 
concerns that you addressed, we are also looking at recognition 
of religious liberty interests, and that is the primary thrust.
    But let me just ask you to clarify something you mentioned. 
You said--well, let me ask: You do not support the President's 
faith-based initiative which would allow the use of Government 
funds on a neutral basis to religious organizations that 
provide social services, say, to the homeless or people who are 
addicted to drugs and that sort of thing? Could you clarify 
your position?
    Representative Edwards. Yes, Mr. Chairman. For years, 
before the President's faith-based initiative, the Federal 
Government has been providing funding for religious faith-based 
groups that do good social work. This has been going on for 
decades. Ask the Catholic Charities about that, and Lutheran 
Social Services. But they did so under three conditions that I 
think are proper and constitutional requirements.
    First, you couldn't send that money directly to a house of 
worship. I do disagree when the Department of Housing and Urban 
Development wanted to actually have direct Federal tax funding 
of houses of worship, not faith-based groups but literally the 
houses of worship themselves. If we bring Government dollars 
into our churches, synagogues, mosques, and houses of worship, 
guess what follows? Government regulations. We don't need 
Government auditors and regulators running through the halls of 
our houses of worship.
    Secondly, the law, longstanding for decades, allowing 
faith-based funding said that you can't proselytize with tax 
dollars. I believe the Bush administration has gone on record 
as saying it agrees with that. I shouldn't be able to take your 
tax dollars and force my religion on somebody else with those 
dollars.
    The third provision which the President's proposal is 
trying to amend is under longstanding law, you have not been 
able to discriminate in job hiring using tax dollars based 
solely on someone's personal religious faith. For example, if I 
get a $5 million job training grant from the Federal 
Government, I don't think for job training positions I should 
be able to give Members of this Committee, if you applied to me 
for a job, paid for by the taxpayers, give you a private 
religious test and say, Mr. Cornyn, Mr. Sessions, Mr. Feingold, 
you did real well on Questions 1 through 16, but I really don't 
like your answer to my religious question, number 17, so I am 
not going to hire you or I might fire you from this federally 
funded job.
    I think the Federal Government doesn't need to be in the 
business of subsidizing discrimination based on religion. We 
can continue faith-based work. I reject the notion we have to 
discriminate against American citizens, make him or her choose 
between his or her job and his or her faith simply to qualify 
for a secular, federally funded job. On that point, I strongly 
disagree with that particular part, an important part of the 
faith-based initiatives.
    Chairman Cornyn. Not to dwell too much on this, but one 
last question in that regard. Just to use a hypothetical, 
because it helps maybe clarify it a little bit, if you have a 
church, let's say, that provides a soup kitchen to feed the 
homeless and they apply on a competitive basis for some sort of 
grant that the Government might supply on a neutral basis, no 
proselytizing going on, just feeding hungry people, but they 
insist on the right to be able to hire people who only 
subscribe to that particular religious organization's faith, 
you would object to that?
    Representative Edwards. Yes, I would, because I don't see 
why in order to be qualified to serve soup at a federally 
funded, tax-funded program one must follow someone else's 
religious faith. We all understand why Baptist Church can use 
its own money to hire a Baptist pastor or a Jewish synagogue 
can hire a Jewish rabbi. But when you are using tax dollars, 
public dollars, I think to make those jobs dependent upon my 
passing your private religious test or your passing my 
religious test is wrong. And if that is not religious 
discrimination, to force you to choose between your faith and 
your job, I don't know what is.
    Chairman Cornyn. Thank you very much.
    Representative Edwards. Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Feingold?
    Senator Feingold. Mr. Chairman, we often don't ask 
questions of Members of Congress at the beginning, but I will 
tell you, I am glad you did, Mr. Chairman, because what 
Representative Edwards just demonstrated is that he is, in my 
view, the preeminent force in our entire Congress for trying to 
get this faith-based thing right. It was his efforts, when he 
came to see us in the Senate, that brought us together to pass 
a Senate version of the bill that actually does properly 
balance the concerns about making sure we help our faith-based 
institutions and respecting the Constitution.
    So I want to thank you for that wonderful leadership that 
you have shown throughout the Congress, and we know you have 
very important responsibilities in the House, and we thank you 
for the time that you have given us already today. I understand 
you probably cannot stay for the rest of the hearing, but 
obviously we will make sure you get a copy of the proceedings. 
And I just want to say personally how much I appreciate your 
leadership on these issues, Representative Edwards.
    Representative Edwards. Senator, thank you very much, and I 
am going to stay. I can't imagine anything more important, a 
more important issue being debated in Congress today. And, Mr. 
Chairman, I thank you.
    Let me just say, too, I didn't suggest and didn't want to 
even imply that you were saying this is a choice of who is for 
God and who is against God. But I do think we need to be 
careful, when we talk about hostility against religion in the 
public place, that we not suggest that everyone who might 
disagree with Judge Moore, everyone who might disagree with 
some of us in this room, somehow is hostile to religion. In 
1800, some attacked Mr. Jefferson for his belief in church/
state separation by saying, and I quote--his election in 1800, 
``The effects would be to destroy religion, introduce 
immorality, and loosen all the bonds of society.'' That was 
said about Mr. Jefferson over 200 years ago simply because he 
believed in the principle of church/state separation as a way 
to accomplish religious liberty, which that is a goal we all 
want, religious liberty. I hope we will be respectful, both 
sides, frankly, as we discuss this terribly important issue.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Thank you very much. I appreciate your 
being here.
    Senator Feingold. Mr. Chairman, I ask unanimous consent 
that a statement from Senator Leahy, the Ranking Member of the 
full Committee, be entered into the record.
    Chairman Cornyn. Certainly. Without objection.
    We will now proceed to panel number two, and I would like 
to ask the members of the second panel to take their seats at 
the witness table.
    We are pleased to have a panel of citizens and 
representatives of citizens' groups here with us today to 
discuss their own experiences in the area of religious 
expression in the public square. I will introduce the panel, 
and then I will ask each of them to give an opening statement.
    Nashala Hearn is a middle school student from Muskogee, 
Oklahoma. She traveled here with her father, Eyvine Hearn. In 
my written remarks, I briefly summarized the hostility that she 
faced because of her adherence to her Muslim faith. She was 
suspended for wearing her hijab to school in accordance with 
the dictates of her faith. From what I have gathered, it was 
precisely because of the pervasive Government hostility to 
faith that we have seen in our legal culture in general that 
this particular school thought it could get away with refusing 
to respect this brave young girl's sincerely held religious 
beliefs. And only after the Justice Department intervened did 
the school finally back down and settle the case out of court 
just last month.
    Steven Rosenauer is here with us from Bradenton, Florida. 
Steven and his wife, Carol, are members of the Jewish faith. In 
May 2003, they and their son were invited to a school board 
meeting so their son could be honored for his academic 
achievements. The Chairman of the board began that meeting by 
asking everyone to stand for a recitation of the Lord's Prayer. 
After Mr. Rosenauer filed suit, the parties reached an 
agreement which I believe is a reasonable resolution under our 
First Amendment. Specifically, the agreement permits the board 
to open its meetings with a nonsectarian invocation.
    William, better known as ``Barney,'' Clark is a citizen of 
Balch Springs, a wonderful small town in my home State of 
Texas, just outside of Dallas. Mr. Clark is a proud World War 
II vet, and he and his wife were regular attendees at the Balch 
Springs Senior Center. I might add that while Barney is here, 
he has got an opportunity, I hope, to visit the World War II 
memorial.
    Mr. Clark. I did.
    Chairman Cornyn. And we are glad you had that chance while 
you are here as well.
    As I mentioned in my written remarks, that city-owned 
senior center, that is, Balch Springs Senior Center, barred a 
group of seniors, including Mr. Clark, from privately engaging 
in prayer and singing religious hymns. After the intervention 
of public interest lawyers from the Liberty Legal Institute 
and, once again, the support of the Justice Department, the 
city backed down.
    J. Brent Walker is Executive Director of the Baptist Joint 
Committee on Public Affairs here in Washington, D.C. He is an 
ordained minister as well as an attorney. In addition, he 
serves as an adjunct professor at Georgetown University Law 
Center. He formerly served as the Baptist Joint Committee's 
general counsel, and he has testified before Congress on a 
number of occasions. We welcome him again here today.
    Judge Roy S. Moore is the former Chief Justice of the 
Supreme Court of Alabama. He is a graduate of the University of 
Alabama School of Law and the United States Military Academy at 
West Point. He has served as a captain in the Military Police 
Corps of the United States Army and as a company commander in 
Vietnam. He has also served as a deputy district attorney and a 
circuit judge in Gadsden, Alabama, before he was elected to the 
office of Chief Justice in November of 2000. He received 
national attention when his defense of the placement of the Ten 
Commandments in public buildings eventually led to his forced 
departure from the court.
    And, finally, Kelly Shackelford, like Mr. Clark, also hails 
from my home State of Texas. Mr. Shackelford is the chief 
counsel for the Liberty Legal Institute. In that capacity, he 
represented the senior citizens involved in the controversy at 
the Balch Springs Senior Center. He has also represented a 
number of other citizens who faced hostility for their private 
religious expressions. Mr. Shackelford formed the Liberty Legal 
Institute to fight for religious liberty and protect freedoms 
in the courts in Texas and nationwide. He has argued both 
before the United States Supreme Court and testified before 
Congress and the Texas Legislature. He is also an adjunct 
professor of law at the University of Texas Law School.
    I would like to thank each of you for being here today, and 
I know many of you traveled a long distance to be here. And I 
am sorry to tell you that while I want to hear an opening 
statement, the Committee wants to hear an opening statement 
from each of you, I am going to have to ask you to keep that 
opening statement to about 5 minutes, and I will enforce that 
with this gavel they left for me up here. Then we will have an 
opportunity to ask some questions and hear from the next panel 
of witnesses that follow you.
    Of course, we will accept longer written remarks for the 
record, and I will take this opportunity to mention that we 
will leave the record open until 5:00 p.m. next Tuesday, June 
the 15th, for any other Members of the Committee to submit 
additional documents into the record and to ask questions in 
writing of any of the parties.
    At this time we will hear from the first witness, and, 
Nashala, you have a microphone there in front of you, and you 
just need to--
    Senator Sessions. Mr. Chairman, I might say a word of 
welcome to my--
    Chairman Cornyn. Senator Sessions, certainly.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Judge Moore, it is great to have you 
here. He is from my wife's home town of Gadsden. As Attorney 
General of Alabama, I had the pleasure of working with you.
    And I would just say this, Mr. Chairman: Judge Moore did 
not come to the question of church/state issues lightly. He has 
read virtually every document of our Founding Fathers. He has 
analyzed carefully what they said, how the Constitution was 
adopted, and he has developed some ideas about it. And, 
unfortunately, that ran into conflict with Federal courts, and 
he stood by those beliefs. He is a man of integrity and 
conviction and was willing and, in fact, gave up his office--
not a rich man, a man who served his State and his country in 
Vietnam. He gave up his office in adherence to what he believed 
was correct. And I think we owe him great respect. There are 
two aspects of our Constitution. One is the Establishment 
Clause that prohibits the establishment of a religion, and the 
other one protects the free exercise thereof. And I think we do 
have issues here of significance to discuss, and I like the way 
the discussion is going so far. I think it is important. And, 
Judge Moore, we are glad you are here. I wish you were still on 
the court. I am sorry things worked out the way they did. God 
bless you.
    Chairman Cornyn. Thank you, Senator Sessions.
    Nashala, we will be glad to hear from you first, so if you 
will speak into that microphone in front of you and loud enough 
so we can all hear you, we would appreciate any statement you 
would like to make.

         STATEMENT OF NASHALA HEARN, MUSKOGEE, OKLAHOMA

    Miss Hearn. Thank you, Senator Cornyn. It is an honor to be 
here. And thank you, Senator Feingold, too.
    My name is Nashala Hearn. I am 12 years old, and I live in 
Muskogee, Oklahoma, with my father--who is here with me today--
and my mother, my brother, and my sister. I attend the Ben 
Franklin Science Academy, which is a public elementary school 
in my home town.
    On October 1, 2003, I was suspended for 3 days from the 
Muskogee Public Schools for wearing my hijab--which is a 
headscarf required by my religion, Islam.
    I didn't know it was going to be a problem because on 
August 18, 2003, my first day of school, I explained to my 
homeroom teacher that I am a Muslim and I wear a hijab, and 
that I also pray between 1:00 and 1:30. She said that was fine 
and that she had a room for me to pray in.
    From that day forward, I received compliments from other 
kids as well as school officials.
    But my problems started on September 11, 2003. I was in the 
breakfast line when my teacher came up to me and said that 
after I was done eating to call my parents because my hijab 
looks like a bandanna or a handkerchief and that I wasn't 
allowed to wear it.
    So after I was finished, I went to the office.
    Ms. Walker had already called my parents. When my parents 
got there, they were very upset. The principal said it was a 
bandanna and I had to change it or go home.
    And this is how the battle of being obedient to God by 
wearing my hijab to be modest in Islam versus the school dress 
code policy began.
    I continued to wear my hijab because it would be against my 
religion not to.
    So like I said before, I was suspended from school on 
October 1st for 3 days. When I came back to school on October 
7th, I was suspended again. This time it was for 5 days.
    I was able to go back to school after that until the 
problem was fixed.
    This experience has been very stressful, very depressing, 
and humiliating.
    By the grace of God and thanks to the DOJ, the Rutherford 
Institute, and my lawyer, Ms. Farish, the problem no longer 
exists in the Muskogee public schools. The school agreed to let 
me and other kids wear our religious clothing.
    Thank you for listening and thank you very much for having 
me here today. Praise to Allah.
    [The prepared statement of Miss Hearn appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Nashala, for your statement, 
and we appreciate your courage and your presence here today, 
and also your father for making it possible for you to be here.
    Mr. Rosenauer, we would be glad to hear any opening 
statement you would care to make, sir.

       STATEMENT OF STEVEN ROSENAUER, BRADENTON, FLORIDA

    Mr. Rosenauer. Good afternoon. My name is Steven Rosenauer, 
and I live with my wife and two children in Bradenton, Florida. 
At the request of this Committee, I am here to testify about 
the important issue of religious liberty in America as it has 
recently affected my family.
    Both my children attend public school in Manatee County, 
where we live. Last spring, my wife and I were very proud when 
we were invited to the school board meeting on May 5th, along 
with my son Joshua, so that the board could recognize and honor 
him for winning first place in several events at the Technology 
Student Association State Competition. Several other students 
were at the meeting so that they could also be recognized for 
similar achievements.
    As my wife and son and I sat in the audience, the school 
board's Chair called the meeting to order. Then, to my 
surprise, she told everyone in the audience to ``please stand 
for the Lord's Prayer'' and the Pledge of Allegiance. The board 
members then stood, bowed their heads, and led most of the 
audience in reciting the Lord's Prayer, a well-known Christian 
prayer considered by most Christians to be the prayer taught by 
Jesus to his disciples. My family is Jewish, and we were 
shocked and felt uncomfortable and excluded by these actions of 
our community's elected officials at an official school board 
meeting. On our way home, my son, my wife, and I were all 
upset. As I explained in a letter I wrote that same night to 
the school board Chair, ``I was very offended when you had 
everyone present rise for a ceremony that I consider against my 
religion.''
    For the next several months, board members continued to 
lead the Lord's Prayer at board meetings, despite my letter as 
well as letters from People for the American Way Foundation, 
which had agreed to help me and my family. Some community 
members made disturbing statements, such as one urging the 
board to ``stand on Jesus Christ'' and not to bend to ``foreign 
gods.'' Some board members strongly defended their actions as 
permissible religious expressions of their faith. One went so 
far as to state that the Supreme Court isn't ``the eternal 
supreme court,'' and that perhaps he would have to be taken out 
in handcuffs 1 day. But even Pat Robertson's American Center 
for Law and Justice recognized that the board's practice was 
unconstitutional and that the only type of invocation that can 
possibly be legal would have to be truly nonsectarian and 
clearly voluntary. As the Sarasota Herald Tribune explained, 
``Manatee is home to a diverse mix of religious faiths. It's 
chauvinistic for the board to impose a distinctly Christian 
prayer on everyone attending its meetings. Doing so sends a 
message, intentional or not, that citizens who don't share the 
board's faith are viewed in a lesser light...Out of respect for 
the community's religious diversity--not to mention the 
Constitution--the board should drop the prayer and end this 
controversy.''
    I became hopeful in August when the board adopted 
guidelines for its meetings to begin with nonsectarian 
invocations. But the board repeatedly violated those guidelines 
as ministers invited by the board led public, sectarian prayer, 
including praying in the name of Jesus, despite repeated 
letters from us. In February, after trying for more than 6 
months to resolve the issue, we, with the pro bono help of 
People for the American Way and the law firm of Hunton and 
Williams, filed suit in Federal court.
    For a while--excuse me.
    Chairman Cornyn. It is all right. Take your time.
    Mr. Rosenauer. For a while, things got even worse. We 
received anonymous threatening phone calls, like the one 
telling us we should move out of the country if ``we didn't 
like the way they do things here,'' and the call that 
threatened, ``We know where you Jews live and if you don't drop 
the lawsuit, there will be trouble.'' During the Jewish holiday 
of Passover in April, someone vandalized our home by throwing 
red oil-based paint on the front door and garage door of our 
house and our truck outside. It reminded us all too chillingly 
of what has happened to Jews and other religious minorities in 
other countries where they don't have the religious freedom and 
separation of church and state that are the foundation of our 
great country. My family believes that some board members and 
others in the community helped foster the atmosphere where 
these types of actions occurred when they made public 
statements of intolerance and their own disdain for the courts.
    Both newspapers in our area have strongly supported our 
position, and I am pleased to report that just last week, the 
court approved a settlement that we reached with the board, 
which includes an enforceable consent decree calling for the 
board to make sure that only truly nonsectarian prayer can be 
used to open board meetings.
    We are hopeful that this situation is now behind us. But it 
has reminded us of the importance of true religious liberty in 
America and the dangerous consequences of allowing improper 
Government promotion of religion and eroding the separation of 
church and state. The Constitution protects the religious 
liberty of all Americans, not just those of one faith. My 
family's situation has highlighted the importance of our 
Federal courts in protecting that fundamental principle.
    Thank you very much.
    [The prepared statement of Mr. Rosenauer appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Mr. Rosenauer, for 
being here and for your testimony and sharing that story with 
us. I know it wasn't easy, but it is important that we hear it.
    Mr. Clark, we would be glad to hear any opening statement 
that you would care to make.

  STATEMENT OF WILLIAM ``BARNEY'' CLARK, BALCH SPRINGS, TEXAS

    Mr. Clark. Chairman Cornyn, Ranking Member Mr. Feingold, 
and Members of the Committee, thank you for the privilege you 
gave me to come and testify before you today.
    Chairman Cornyn. Mr. Clark, you may want to pull that 
microphone just a little bit closer to you so we can make sure 
not to miss a word.
    Mr. Clark. My name is Barney Clark. I am a member of the 
Balch Springs Senior Center, and my wife and I have been 
members for 10 years. We started our 11th year the 1st of May.
    it has always been a pleasure, a fun place to go, people 
your own age, things to do together. And it has really been a 
pleasure. But in the last 6 to 8 months, it has all changed.
    We have been singing religious songs, listening to 
inspirational messages, and praying over food, they tell me, 
for 20 years. I know this went on for 10 years that I have been 
there. But every Monday, Brother Barton comes in and gives an 
inspirational message. He doesn't preach a sermon. He gives an 
inspirational message right out of the Bible. He has no altar 
call. He doesn't take no offering. He prays for the sick. He 
visits them in the hospital. He has even buried two or three 
people that passed on. He is a wonderful man.
    Back in August 2003, after we had our gospel singing and 
inspiration, Ms. Deborah, the director, came and told us that 
we cannot have no more gospel songs, we cannot stand up and 
pray over our food, we can't have Brother Barton to come in and 
preach no more, bring inspiration. This message came from the 
city manager and was passed down to her by the city attorney. 
This was the first time that we was told that we couldn't do 
this that had been going on for 20 years.
    I don't mind telling you, we was in limbo for 2 or 3 days 
around that. We didn't know what we was going to do, nothing. 
We prayed about it. We turned it over to the Lord, and we 
prayed for the people that was bringing it on us.
    Lo and behold, we got a call out of the clear blue sky from 
the Liberty Legal Institute. They said, ``They are treating you 
wrong. If you want a representative, we will represent you, no 
cost to you.'' That was our first prayer that was answered. If 
you wanted to see a bunch of smiling faces, you should have 
seen those people over there that day. They said, ``It is not 
right the way they are treating you, it is against your 
religious freedom, your freedom of speech, and it is just not 
right.'' They said, ``If you want us to represent you, we will 
be out there Monday to talk to you.''
    Monday they came out. We got 16 people. We had 40 or 50 
people there, but some reason or the other, they were reluctant 
about standing up, standing up for their rights. But we got 16 
up, and they had television people out, the news people, and 
they gave us wonderful coverage. It seemed like every one of 
them--in fact, the mayor of Balch Springs said, ``I cannot 
believe the publicity this is getting,'' just this little bunch 
of seniors. But they rallied from everywhere. I got calls from 
Canada. I got calls from California. There was even a call that 
come in from England, from Florida, and all over Texas, all 
saying, ``You are doing good. We are praying for you. Keep up 
the good work.''
    The people signed up, the petition for the lawyers to 
represent us. They said, ``We will go to court if we have to.'' 
Well, the lawyers sent a demand letter to the center, sent it 
to the council. They refused to answer it. They wouldn't talk 
to us. My wife personally called each councilman to come over 
and talk it over. They wouldn't come talk with us. Two 
councilmen come over and talked to us and said they was for us, 
they was favorable. They said, ``It is not right, but there is 
nothing we can do because every time we speak up, these other 
four councilmen votes us down.''
    Well, there we go again. In the meantime, Mr. Normal 
Moorhead, the director of the Dallas Area Agency of Aging, 
stated that our food program would be in jeopardy if we won. I 
said, ``You win and you lose your food? That don't sound 
right.'' Well, Mr. Sasser from the legal institution, he got a 
chuckle out of it, and he said, ``They can't do that.'' He 
said, ``Don't worry about it.'' Well, we didn't. We went on.
    In the meantime, the Justice Department come down, and they 
was nosing around, you might say, talking and asking questions. 
And the insurance company from Balch Springs got in it, they 
had become involved. Well, the insurance man seemed like a 
pretty decent fellow, and he demanded--I don't know whether he 
demanded, but they got him to go to mediation. So we went to 
mediation. We talked back and forth. Of course, they was in one 
room, we was in another. Then lunchtime came. They come and 
took orders for sandwiches. We all ate our sandwiches. The 
mediator come in, he said, ``Gentlemen, I don't know what to 
tell you. They walked out.'' We said, ``What do you mean they 
walked out? They called the meeting.'' He said, ``They walked 
out grumbling, something about the wrong sandwiches.''
    Well, I had the wrong sandwich. My name was on it. Whoever 
took the order got them mixed up. It was a good sandwich. I ate 
it.
    [Laughter.]
    Mr. Clark. But they refused to eat theirs and walked out of 
the meeting.
    The next thing, when the Justice Department really got into 
details on it, they threw in the towel. They said, ``Give 
seniors back their rights.'' All right. Everything, the 
seniors, we could sing, we could pray, preach, whatever we want 
to do, and religious, we can, except Mrs. McDaniel, our 
director, came from Mr. Moorhead's office--I can't say he give 
the order, but it came from his office. She can have nothing to 
do with religion whatsoever. The preacher is a personal friend 
of hers. He married her and her husband there at the center. If 
he comes into the building, she has to leave and go into her 
office. He can go in there and talk to her, but she can't talk 
to him in the main building.
    Now, something is wrong when somebody can tell you if you 
take this job, you give up your religion, you can't have it. 
Now, there is something wrong with that. But it happened.
    Now, in the meantime, we got another letter from Mr. 
Moorhead that said our food program--we are not happy with what 
is going on, our food program will be in jeopardy again.
    Mr. Sasser called me and said, ``We will have a press 
meeting Monday''--I believe it was a Monday evening at 1 
o'clock, said, ``Get all the people together.'' We assembled--
well, we was all at the center that day. About, I would say, 
11:00, 11:30, he called me. He had been over talking to Mr. 
Moorhead. He said, ``Forget about it.'' He said, ``He's throwed 
in the towel. He's decided that you will get your food.'' Of 
course, he assured us all along that we would. So that took 
care of that.
    But would you believe, Senator, that the mayor come over 
and told me personally--and other people was there--that I 
could go over in the corner if I wanted to and pray. He 
couldn't tell me I could or I couldn't. I told him, ``My Bible 
says, `Profess me publicly.' I will not go in the corner and 
pray like a criminal, and if you want to carry me to jail, 
carry me to jail.'' That is so it be. And we, the people 
involved in the lawsuit, got out in the center of the room and 
held hands and prayed for our food.
    In closing, I want to say that I am a veteran from World 
War II. I put my life on the line for what I believe in. And if 
Mr. Truman hadn't dropped the bomb when he did, I believe that 
I would have paid the price, the supreme price, for what I 
believe in. And I just do not believe that is right for anybody 
to come up and tell you that you can't pray, preach, or listen 
to religion.
    And, in closing, I would like to say to each one of you 
all, the Constitution guarantees each American the right for 
peaceful assembly. Now, I ask you, what could be more peaceful 
than a bunch of old folks sitting around singing good old 
gospel songs that this country was founded on?
    [Laughter.]
    Mr. Clark. And, with that, I thank you from the bottom of 
my heart for letting me come up here and state my case.
    [The prepared statement of Mr. Clark appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Mr. Clark. We appreciate your 
testimony.
    Mr. Walker, we would be delighted to hear from you.

STATEMENT OF J. BRENT WALKER, EXECUTIVE DIRECTOR, BAPTIST JOINT 
         COMMITTEE ON PUBLIC AFFAIRS, WASHINGTON, D.C.

    Rev. Walker. Thank you, Mr. Chairman and Members of the 
Subcommittee. I don't thank you, however, for putting me after 
Mr. Clark on the dais.
    [Laughter.]
    Rev. Walker. For 68 years, the Baptist Joint Committee has 
pursued what I think is a well-balanced, sensibly centrist 
approach to church/state issues. We take seriously both 
religion clauses in the First Amendment as essential guarantors 
of our God-given religious liberty. It is, indeed, our ``first 
freedom.''
    The wise architects of our republic fashioned twin 
constitutional pillars--no establishment and free exercise--and 
they placed them first in the Bill of Rights to protect what 
many of them believed to be God-given rights and to buttress 
the wall of separation that is so critical to ensuring our 
religious liberty.
    The Establishment Clause is designed to keep Government 
from promoting or helping religion. The Free Exercise Clause is 
intended to prevent Government from discouraging or hurting 
religion. And the two, taken together, call for a neutrality on 
the part of Government and how it relates to religion. 
Government should accommodate religion but without advancing 
it, protect religion but without promoting it, lift burdens on 
the exercise of religion without extending religion an 
impermissible benefit.
    The requirement of keeping church and state separate, 
however, does not call for a divorce of religion from politics. 
The metaphorical wall of separation between church and state 
does not block metaphysical assumptions from playing a role in 
public life. Religious people have as much right as anybody 
else to seek to vend their convictions in the marketplace of 
ideas and, within some limits, to allow their religious ethics 
to influence public policy by speaking out and organizing 
politically and even running for office.
    While religious expression by public officials is 
ordinarily permitted, there are, I think, constitutional 
limits. With all respect to my co-witness on this panel, the 
Ten Commandments case out of Alabama illustrates a Government 
official expressing his own religious views that clearly, in my 
mind, crossed the constitutional boundary. Far from a generic 
recognition of a supreme being, Hon. Chief Justice, one, 
singled out one favored religious tradition; two, he chose the 
preferred Scripture passage; and, three, he displayed it in a 
way that created nothing less than a religious shrine. And 
while so doing, he made theological judgments throughout. Which 
Commandments, Deuteronomy 5 or Exodus 20? Is it the English Old 
Testament or the Hebrew Bible or maybe the Greek Septuagint? Is 
it a Catholic or Protestant one? Which translation--King James, 
New International, Revised Standard? They all differ in form 
and style and theological nuance. These are fundamentally 
religious decisions that Government officials are ill-suited to 
make.
    We must always keep in mind the difference between 
Government speech endorsing religion, which the Establishment 
Clause prohibits, and private religious speech, which the 
Constitution protects. Religious speech by private citizens, 
even in public places, is not forbidden. It is protected and 
commonly practiced. And there are lots of ways in which the Ten 
Commandments, for example, can be expressed in public without 
the helping hand of Government. They can be posted in front of 
every church and every synagogue in the land, in full public 
view. They can be displayed even on public property if that 
property is a free speech forum. One can hold up a sign, Exodus 
20 or Deuteronomy 5, instead of or in addition to John 3:16 in 
the end zones of televised football games. And taking a lesson 
from the prophet Jeremiah, we can write the Commandments o our 
hearts instead of on stone, thereby providing a living witness 
to those teachings.
    In sum, the question is not whether the Ten Commandments 
embodied the right teachings. The question, rather, is: Who is 
the right teacher--politicians or parents, public officials of 
religious leaders, judges or families?
    As a minister, I can think of little better than for 
everyone to read and obey the Ten Commandments, but as a 
lawyer, I can think of little worse than for Government 
officials to tell us to do it.
    Finally, even public officials are not prohibited from 
considering the Ten Commandments in the proper context. For 
example, schools may teach about the Ten Commandments in Bible 
as literature courses. Schools can instruct students in the 
ethical precepts embodied in the Commandments in a proper 
character education course. And the Commandments can be 
depicted as an integral part of a historic educational exhibit, 
such as on the frieze across the street in the United States 
Supreme Court courtroom.
    We must catch the vision of our Nation's Founders: 
religious freedom for all, unaided and unhindered by 
Government. We must commit ourselves to protecting religious 
expression in public places without allowing Government 
officials to promote religion or to pick and choose among 
religions.
    Two Founders, in conclusion, I want to refer this 
Committee's attention to. Two Founders who succinctly expressed 
this aspiration in a way that inspires me every day: Daniel 
Carroll, a Catholic from Maryland, captured the pith of the 
free exercise principle when he said, ``The rights of 
conscience are of particular delicacy and will little bear even 
the gentlest touch of Government's hand.'' And on the other 
side of the Potomac, Virginia Baptist John Leland expressed the 
rationale for the no establishment principle when he exclaimed, 
``The fondness of magistrates to foster Christianity has done 
it more harm than all the persecutions ever did.''
    The stirring words of Carroll and Leland call for 
Government neutrality in religion and highlight the importance 
of protecting the rights of conscience of every human being, 
and they posit, in my judgment, a well-balanced view of a free 
church in a free state.
    Thank you.
    [The prepared statement of Rev. Walker appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Mr. Walker, for being 
here and for that statement.
    Judge Moore, we would be delighted to hear from you now.

 STATEMENT OF HON. ROY S. MOORE, FORMER CHIEF JUSTICE, SUPREME 
             COURT OF ALABAMA, BIRMINGHAM, ALABAMA

    Justice Moore. Thank you, Senator Corny and Senator 
Feingold. I am glad to be here and argue before this Committee 
my position. I thank you for the opportunity to appear, and I 
want to especially appreciate Senator Sessions and Senator 
Shelby, two of the finest Senators I think Alabama has ever 
had, and we are very proud in our State of these Senators.
    I realize that my testimony is long, very factual, and I 
request that it be entered into the record.
    Chairman Cornyn. Without objection.
    Justice Moore. I want to first agree with Representative 
Edwards on one thing, at least. It is not between those who 
believe in God and those who do not believe in God. It is 
between those who understand the First Amendment and those who 
do not. The issue in all these is the acknowledgment of that 
God upon which this Nation was founded. The issue in my case--
and disagreeing with Mr. Walker since he knows so much about my 
case--was not the Ten Commandments. It was about the 
acknowledgment of God.
    The court judge in that case said this: ``The issue is: Can 
the state acknowledge God?'' He said, ``I think you said it. 
And I think perhaps in many ways I doubt the plaintiffs will 
disagree with you on that.'' You see, we have got to understand 
what the issue is. I have heard the word ``religious'' or 
``religion'' used over a thousand times here today. And who can 
define that word? Well, the Supreme Court did define that word 
in 1878 and 1890 and attached the true definition to the case 
of Everson v. Board of Education in 1947. ``Religion'' was used 
over 150 times in Judge Myron Thompson's opinion. Do you think 
he could define the word? He said that the court lacks the 
expertise to formulate its own definition of religion for First 
Amendment purposes. In another section, he said, ``Indeed, it 
is unwise and even dangerous to put forth as a matter of law 
one definition of religion for First Amendment purposes.''
    You see, when you can't define a word as a judge, you can't 
interpret the law. The First Amendment says, ``Congress shall 
make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof.'' That part of that 
First Amendment was designed to allow the States and to allow 
the people of this country to acknowledge God according to the 
dictates of their conscience. As far back as 1776, we were 
declared to be one Nation under God in the Declaration of 
Independence because it was the laws of nature and nature's God 
who gave us that right.
    Now, many take the secular position that they put 
themselves into being neutral toward religion. Indeed, God is 
the only one neutral to religion because He gave us that 
freedom of conscience to believe as we must. Therefore, it is 
actually very imperative that we recognize the issue in this 
case, and the issue in the case is the Government's 
interference with the right of the people of these States to 
acknowledge God. Every State in this Union acknowledges God in 
its Constitution. I have been speaking--I have spoken to about 
25 States since November. Every State acknowledges God. If you 
can give me not that doesn't, I will take it.
    I heard earlier that God was meant to be separated from our 
Constitution. That certainly wasn't the case. James Madison, 
the chief architect of the Constitution, in Federalist Paper 
No. 37, on January 11, 1788, said, ``It is impossible for the 
man of pious reflection to perceiving it, a finger of that 
almighty hand which has been so frequently and singularly 
extended our relief in the critical stages of the Revolution.'' 
In Federalist 37, on January 23, 1788, in addressing Article 
VII of the Constitution, he said, ``Some may wonder why nine 
States can adopt the Constitution when 13 States have already 
adopted the Articles of Confederation.'' He said, ``The first 
question can be answered at once, by recurring to the absolute 
necessity of the case, to the great principle of self-
preservation, to the transcendent law of nature and of nature's 
God which declares that the safety and happiness of society are 
the objects to which all political institutions aim and to 
which all such institutions must be sacrificed.''
    We have simply confused today, Senator, the acknowledgment 
of God with religion. In 1954, when the legislature of this 
country, the Congress, put ``under God'' in the Pledge, they 
were not confused. They said this: ``It should be pointed out 
that the adoption of this legislation in no way runs contrary 
to the vision of the First Amendment to the United States 
Constitution. This is not an act establishing a religion or one 
interfering with the free exercise of religion. A distinction 
must be made between the existence of religion as an 
institution and the belief in the sovereignty of God.''
    They also said one other thing that is pertinent in this 
hearing. They said, ``At this moment of our history, the 
principles underlying our American Government and American way 
of life are under attack by a system whose philosophy is at 
direct odds with our own. Our American Government is founded on 
the concept of the individuality and the dignity of the human 
being. Underlying this concept is the belief that the human 
person is important because he was created by God and endowed 
by him with certain inalienable rights which no civil authority 
can usurp. The inclusion of God in our Pledge, therefore, would 
further acknowledge the dependence of our people and our 
Government upon the moral directions of the Creator.''
    For those who would wonder what God this is, it was the God 
of the Holy Scriptures. It was the God referenced in Benjamin 
Franklin's address before the Constitutional Convention. I 
happen to have that address. I happen to have it in the--right 
out of the Congressional Records of the Senate in which they 
discussed--I am sorry, the House of Representatives, in which 
they discussed his address. He used these words. He said, ``We 
have not hitherto thought of humbly applying to the Father of 
Lights to illuminate our understanding.'' ``The Father of 
Lights'' comes right out of Matthew. He referred to, ``A 
sparrow cannot fall to the ground without His notice''--right 
out of Matthew--I'm sorry. ``Father of Lights'' comes out of 
James. ``A sparrow cannot fall to the ground,'' out of Matthew. 
``Except the Lord build a house, they labor in vain that built 
it,'' under Proverbs. And the builders of Babel under another 
section of Scripture. He certainly knew which God they 
worshipped.
    But it is important for everybody in this room to realize 
that does not discriminate against anybody else's faith. You 
see, that God gave us freedom of conscience, the freedom to 
believe as we wish. It would allow such things as wearing 
scarfs. It would allow such things as prayers, with or without 
Jesus' name. It is that God who gives us the freedom to worship 
God according to the dictates of conscience.
    Joseph Story in his commentaries on the Constitution in 
1833 said, ``The rights of conscience are indeed beyond the 
reach of human power. They are given by God and cannot be 
encroached upon by any human authority without a criminal 
disobedience of precepts of natural as well as of revealed 
religion.''
    Let me just quote one thing from President Ronald Reagan, 
spoken to the Alabama Legislature on March 15, 1982: ``Standing 
up for America also means standing up for the God Who has so 
blessed our land. I believe this country hungers for a 
spiritual revival. I believe it longs to see traditional values 
reflected in public policy again. To those who cite the First 
Amendment as reason for excluding God from more and more of our 
institutions and everyday life, may I just say: The First 
Amendment of the Constitution was not written to protect the 
people of this country from religious values; it was written to 
protect religious values from government tyranny.''
    That statement is as true today as it was then.
    I believe in separation of church and state quite strongly, 
but separation of church and state does not separate this 
country, it never has and never will, from God. The First 
Amendment to the United States Constitution's only purpose was 
to allow us to worship God. That was the first act, very act of 
the Congress that formed the words. They said that--they 
appointed a Committee to wait upon the President, directed the 
Committee to wait upon the President and request that he 
recommend to the people a day of public thanksgiving and prayer 
to be observed by acknowledging with grateful hearts the many 
and singular favors of Almighty God, especially by affording 
them an opportunity peaceably to establish a constitutional 
government for safety and happiness. Eight days later, George 
Washington did exactly that in his first Presidential 
Proclamation, when he said, ``Whereas, it is the duty of all 
nations to acknowledge the providence of Almighty God, to obey 
His will, to be grateful for His benefits, and humbly to 
implore his protection and favor.''
    Just like in the court proceeding, the first thing this 
Committee needs to do, Senator, is to clarify the issue. Can we 
acknowledge God? Certainly we can. That is all that was done in 
Alabama. That is all that the court said was done. But he said 
because we acknowledge the Judeo-Christian God, we could not do 
it. Right now in Alabama sits a display of the Ten 
Commandments, written out, put there by eight Justices, because 
they did it the, quote-unquote, ``right way.'' What is the 
right way? According to the ACLU, Southern Poverty Law Center, 
and Americans United for Separation of Church and State, and 
the courts, it is to surround it with historical artifacts so 
that it reduces to past tense, so that God is no longer 
relevant.
    My monument sit in a closet because it says--it is an 
acknowledgment of that sovereignty of God upon which this 
Nation was founded. The difference between those two monuments 
is one that caused me to lose my job. The other is for 
political purposes and does not acknowledge God.
    I thank you for the opportunity to speak today, sir.
    [The prepared statement of Justice Moore appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Judge Moore.
    Mr. Shackelford, we would be happy to hear your opening 
statement.

 STATEMENT OF KELLY SHACKELFORD, CHIEF COUNSEL, LIBERTY LEGAL 
                    INSTITUTE, PLANO, TEXAS

    Mr. Shackelford. Thank you, Chairman Cornyn, Ranking Member 
Feingold, Senator Sessions. First, I just want to thank you for 
the privilege, the opportunity to be requested to speak today 
on the subject of the current hostilities to religious freedom. 
I respectfully request that the entirety of my personal 
statement be made part of the record of today's hearing.
    Chairman Cornyn. Without objection.
    Mr. Shackelford. Unfortunately, we don't have to look to 
Canada and their recent passage of a hate speech law, which 
actually makes it a crime now to read certain sections of the 
Bible aloud, in order to find outrageous violations of 
religious freedom. We, unfortunately, have our own problems 
here in the U.S.
    While I have been an adjunct professor of law teaching 
religious liberties at the University of Texas School of Law 
since 1994, I speak to you today as chief counsel of the 
Liberty Legal Institute. I have spent the past 15 years in 
specifically religious freedoms constitutional cases, and I 
have overseen hundreds of these types of cases. And let me 
assure you, the hostility that we are talking about is very 
real. We see it every day. There are simply those in this 
country who think that they are actually doing the country a 
service by removing references to our religious history and 
heritage from public and reducing and limiting, restricting 
religious expression in the public arena. And, unfortunately, 
these people are having great success.
    Ten Commandments displays are being removed by court orders 
across the country. ``Under God'' is being challenged. In fact, 
they wanted the Ninth Circuit in our Pledge. Cities are having 
to remove all their religious symbols from their city seals. As 
you mentioned, just recently the City of Los Angeles, I think, 
has agreed to do that now after pressure. Churches and 
synagogues are being banned from entire communities, and 
children are being told in case after case after case that 
their religious expression is prohibited in school.
    The atmosphere and hostility is out there.
    In the short time I have I just want to share a few of our 
cases to provide an example of what is going on out there. You 
have already heard from one of our clients, Barney Clark. 
Actually, it is probably the most enjoyable clients I have ever 
had, senior citizens there from Balch Springs. In Balch Springs 
they were told they could no longer pray over their meal, they 
could no longer sing gospel songs. They could no longer have 
one of their own members talk about the Bible at the senior 
center.
    We sent a letter. We tried to resolve this amicably, but 
these were not uninformed people. Their attorney, after looking 
at the law, decided the this could not be allowed. A government 
agency sent them a letter stating that if this continued, their 
funds for their meals would be taken away. So the idea that 
these are little isolated incidents, in addition to the 
situations we see day after day after day, are borne out by the 
fact that even attorneys who you would think, being through law 
school, could figure this thing out, are confused over and over 
again. They were shocked. Only after an extensive lawsuit over 
months of time, and only after over $80,000 fees were donated 
for these seniors, were they able to rectify this situation, 
and in part, it was also because the United States Department 
of Justice intervened.
    In Barrow v. Greenville, ISD, another one of our current 
cases, we have a teacher, Karen Barrow, who waited 9 years to 
be an assistant principal. When a job opened up she was told by 
the superintendent that she could only have the job if she 
agreed to remove her children from the private Christian school 
where they attended. When she said she could not do that, she 
was informed that she had no future in the district. In the 
depositions taken in this lawsuit, superintendent after 
superintendent testified that this is what superintendents 
across the State did as a matter of customary policy.
    Again, this lawsuit, after over a million dollars in 
attorneys fees having been donated on behalf of this one 
teacher, and 6 years of litigation, this lawsuit is still 
ongoing, and they still have not backed down.
    In H.E.B. Ministries case, Tyndale Seminary was find 
$173,000 for daring to issue 34 diplomas in the Bible without 
getting government approval first of their curriculum and their 
professors. Again, all the lower courts have ruled against 
Tyndale Seminary to this point. We are at the last stage of 
this litigation now and are hopeful that one of these courts 
will come to its senses.
    Small African-American and Hispanic seminaries are being 
shut down across the State. One of our clients, the Institute 
for Teaching God's Word Seminary was shut down, and all they 
did was train black pastors in the Bible, and they were told 
that they could not do that until they first got State 
approval.
    The most disturbing cases to me are the cases and the 
actions taken against children. Jonathan Morgan, a 9-year-old 
student in Texas just wanted to give a gift to his fellow 
students at the Christmas party like everybody else was doing. 
School officials, however, stopped him at the door of the 
classroom because his candy cane had a religious message 
attached to it. Again, here we are 7, 8 months later, the 
school officials and the school attorneys have refused to back 
down. They stand on their position, and they are forcing 
Jonathan and his family to actually prepare for a lawsuit in 
order to protect his right to hand out a candy cane to his 
friends at school.
    A Hispanic kindergartner--I will refer to her as Little 
Doe--saw that other children were bringing Pokemon and other 
cards to her kindergarten class. They are a poor family, but 
she had some cards from her Catholic Church. She brought those 
to school and passed those out. However, the response was 
incredible. The teacher not only told her to stop, but went in 
to all the other classes with all the other fellow 
kindergartners who had received these, in the front of class 
asked them to come forward and confiscated the cards in front 
of the class. She was then informed that she was never to bring 
religious articles to school again. Even after trying to inform 
her that this was wrong, to this day she is scared to bring 
anything or say anything religious at her school.
    Another one of our clients that we are preparing a lawsuit 
for right now, an elementary school girl, was told she could 
give pencils to her friends at school but not ones with Jesus 
on them. She asked her mother, crying, and I quote, ``Why does 
the school hate Jesus, Mommy?''
    The point is these little kids get the message. Their 
religion is treated the same as a curse word at school. They 
are taught at an early age, keep your religion to yourself; it 
is dirty. And that is wrong.
    Many are aware of the Doe v. Santa Fe case in which I know, 
Mr. Chairman, you were involved, in Texas, the football game 
prayer case. Few are aware of the court order below, where the 
judge told the students that they could not at the graduation 
pray in Jesus' name, and that Federal martials would be in 
attendance, and that any student who violated that order would 
be taken to the Galveston County Jail for up to 6 months 
incarceration. He then followed, and I quote, ``Anybody who 
violates these orders, no kidding, is going to wish that he or 
she had died as a child when this Court gets through with it.'' 
This is the atmosphere we have created in the schools for our 
children.
    Last I want to mention the Ten Commandments case in which 
we were involved, Van Orden v. Perry, which involves the Texas 
Ten Commandments. We pointed out in that case that the attempt 
to remove the Ten Commandments there was an open attempt at 
religious bigotry. There are 17 monuments around the capital 
lawn at the Texas capital, yet they have focused on the one 
with religious content. Our question is: why is it that we 
should censor only our religious history? Unfortunately, the 
establishment clause is now a weapon to be used to eradicate 
ideas and expression which one disagrees with by simply 
labeling them as religious. It is an instrument, unfortunately, 
as the Ten Commandments case shows, that is now used to rewrite 
history, particularly to erase any religious references in our 
history such as the Ten Commandments as almost anyone agrees is 
a basic foundation of our system of laws.
    The hostility is real. There is a pervasive atmosphere out 
there that has been created to ban or stop religion in public. 
The separation of religion and State fundamentalists and 
activist courts are succeeding instilling confusion and 
creating an atmosphere of hostility, one where I would say that 
most government officials now even feel they have some sort of 
duty of religious cleansing in public. We are moving quickly 
towards the naked public square, where religion is being 
treated as pornography when expressed in public, and the 
hostility has spread quickly from across our public schools to 
all areas of public life including even our public displays.
    If we do not begin to speak up and act now, we are going to 
lose the great religious heritage and history upon which this 
country was founded, and I think that would be a terrible 
mistake.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Shackelford appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Mr. Shackelford.
    We will now have a round of questions, and I will start.
    First of all, I want to say, Nashala, to you and Mr. 
Rosenauer and Mr. Clark, and also to you, Judge Moore. I know 
that each of you are here because you have endured a challenge 
to your right to express or protect your rights under the First 
Amendment of the Constitution, and we certainly respect your 
fervent belief and your efforts to protect your rights. One of 
my biggest concerns is that people who do not have the money or 
do not have a lawyer or who do not have the time, or who just 
simply do not want to put up with the ridicule that you might 
suffer in order to protect your rights under the First 
Amendment, just simply give up. Indeed, one of the problems, we 
will hear from the next panel, is that the law is not clear. It 
is contradictory in many respects, and so individuals, 
organizations, governments, simply default to a religion-free, 
faith-free zone because they are concerned about being sued or 
other consequences that are obviously. It is because of the 
courage of people like you, Nashala, Mr. Rosenauer, Mr. Clark, 
and Judge Moore, that these issues are brought to our 
attention, and I think they are worth of discussion. They 
should not be swept under the rug for many of the reasons that 
you have already mentioned.
    But in listening to the testimony here today, I actually 
think that there is some consensus at least on what it is that 
we are concerned about. On the one hand, the First Amendment 
protects religious liberty, free exercise of religion, but also 
it prohibits the establishment of religion, the government 
officials, in Mr. Rosenauer's case, dictating what kind of 
specific religious prayer that might be offered.
    But. Mr. Rosenauer, in your case, you believe you were able 
to reach a satisfactory resolution by a consent agreement that 
provide for a nonsectarian prayer; is that right, sir?
    Mr. Rosenauer. Yes. We have entered into a consent 
agreement, and the Judge entered it in the court about a week 
and a half ago, and in the consent agreement it constrains the 
school board members or anyone acting on their behalf basically 
from preaching, proselytizing or otherwise advancing any 
specific religion either during the invocation or during the 
school board meeting. It does not enjoin them from having an 
invocation. The invocation or sample invocation, I should say, 
that was attached to it as an example, does mention God in it. 
It is not against religion, our suit, against this school, was 
not against religion, it was against a government endorsing a 
religion.
    Chairman Cornyn. And you were satisfied with that outcome?
    Mr. Rosenauer. We settled it, yes.
    Chairman Cornyn. Sometimes the settlements, that means that 
neither side is entirely satisfied.
    Mr. Rosenauer. I think that is probably the best way of 
putting it. If the school board actually does follow through 
with the settlement, then we will be very satisfied.
    Chairman Cornyn. Thank you very much.
    Mr. Clark, what would have happened if you and the other 
seniors there at the community center, the senior center, had 
just simply caved in when they said you could not sing or pray?
    Mr. Clark. That is what Mr. Moorhead put it in his letter. 
He said, I believe the site council, which is the ruling 
majority there. We meet every month, decide the issues of the 
center. He said, I believe the site council can resolve this 
issue. The only way we could have resolved it was just knuckle 
under to it, to their demands, and we refused. We refused to 
knuckle under. Probably the center would probably have shut 
down because half the people would have quit going.
    Chairman Cornyn. I know you cannot say for sure, and none 
of us can for sure, but do you suspect that there are other 
instances that may be occurring across the country where people 
do not have the courage to stand up and they do in fact knuckle 
under?
    Mr. Clark. I am real sure of it, and that is one of my 
purposes here. I hope that I can encourage somebody to have 
enough backbone to stand up. As Christians we have been taught 
to turn the other cheek. There comes a time you run out of 
cheeks and you have to stand up and be counted.
    [Laughter.]
    Chairman Cornyn. Mr. Walker, let me ask--and here again I 
think there may be more we share in common here in this hearing 
than divides us, but let me just ask you a question and ask you 
to comment on it. I gather the Baptist Joint Committee 
supported the Equal Access Act in 1984, which simply says that 
public secondary schools may not discriminate against religious 
groups in providing access to public school buildings for 
meetings and events during off hours. And as the Supreme Court 
told us in the recent Good News Club decision, to do otherwise 
would violate the free speech clause of the First Amendment. 
But what amazes me, is you look back in 1984, and that 
actually, that legislation was somewhat controversial at the 
time.
    But am I correct that you and the organization you 
represent supports the Equal Access Act and agree that public 
secondary schools may not discriminate against religious groups 
in providing access to public school buildings for meetings and 
events during off hours?
    Rev. Walker. We certainly do, and we support it today. We 
were involved in the debate in the Congress along with then 
Senator Mark Hatfield and others. We thought that was a good 
way to do religion in the public schools that involved taking 
religion seriously and accommodating the needs of students to 
practice their religion and to meet and discuss their religious 
views, while at the same time keeping government from getting 
involved in promoting or advancing religion or governing 
religious exercises. So, yes, we very much supported it. We 
defended it in the Supreme Court in the Mergens case, and we 
continue to work out the details from that very important piece 
of legislation.
    And we filed a brief in the Good News case too. It was not 
an Equal Access Act case, but it was an equal access principle 
that we thought students should be allowed to meet with outside 
groups after class on school campus.
    Chairman Cornyn. I raise that issue, and I point out that 
in 1984 there was no overwhelming consensus in favor of that 
outcome. In fact, there were groups like the American Civil 
Liberties Union and People for the American Way, who were on 
the other side of that, that raised constitutional objections 
to the Equal Access Act.
    Rev. Walker. My friend, Eliot Mintzberg from People For 
said they were not on the other side of that one, and they have 
been very good at helping us enforce the parameters of the 
Equal Access Act.
    Chairman Cornyn. My information is that they were on the 
losing side of that case. But just, it is funny you should be 
talking about the People for the American Way, because I 
noticed on my Blackberry, they have already issued a press 
release commenting about this hearing and criticizing this 
Committee for conducting a hearing that would provide a forum 
for Judge Moore to speak out. I guess they failed to note, at 
least in the e-mail I saw, that there were others here, that 
there are six members of this panel, and we are talking about a 
variety of concerns about the First Amendment protections and 
certainly not just any single case.
    Mr. Shackelford, let me just ask you what sort of 
difficulty do people have? I think you mentioned, was it Mr. 
Clark's case or maybe another, where people had to get together 
and raise $80,000 just to be able to afford a lawyer to defend 
their rights. Is the money and the time and possibly even the 
public ridicule that people have to endure in defending their 
rights under the free exercise clause, does that represent a 
real problem in terms of people getting to be able to express 
their views publicly?
    Mr. Shackelford. Mr. Chairman, no question. Most people 
immediately just cave because they feel like, I am not OJ and I 
cannot hire the dream team, so I am going to back down. The 
extra problem is that unlike other lawsuits, our religious 
freedoms and our constitutional rights are much more valuable, 
but they do not result in damages. So number one, attorneys 
might be less likely to take those because there is not great 
remuneration at the end, and number two, and even more 
problematic, the government entities, therefore, are much more 
likely to drag their feet because there is no downside to them. 
They do not have to pay damages. I think that some improvements 
statutorily in the future would maybe get a lot of these things 
settled more quickly if there was actually a downside to the 
government entity who was refusing to take care of people like 
Mr. Clark and the other seniors that are involved there.
    Chairman Cornyn. Thank you very much
    Nashala, let me ask you one question. Now, I believe in 
your case, when your school told you that you could not come 
and wear your head scarf to school, your lawyer mentioned 
earlier today that they said that, well, if you wanted to wear 
a head covering for medical reasons, or if you wanted to wear a 
head covering for recreational reasons, or perhaps for 
educational reasons, that they would allow it, but they would 
not allow you to wear your head scarf as a manner of religious 
observance. Is that right?
    Miss Hearn. Yes.
    Chairman Cornyn. Thank you very much for answering the 
question.
    At this time I will be glad to recognize the Ranking Member 
for any questions he may have.
    Senator Feingold. Thank you, Mr. Chairman.
    Reverend Walker, thank you for appearing before the 
Committee today. You have a very distinguished record regarding 
church/state issues. Today we heard Mr. Shackelford discuss 
cases in which children are allegedly being deprived of the 
right to religious expression in school. Can you say a bit 
about the scope of legal rights of children with regard to 
religious expression in schools today?
    Rev. Walker. Generally speaking, the religious rights of 
students should be protected and is being protected in most 
cases. It is the government we do not want getting involved in 
religion, but the government should accommodate the religious 
needs of students. So passing out a pencil with Jesus' name on 
it, or a candy cane, or other vestiges of religion, inviting 
somebody to come to church, or even witnessing to another 
classmate, I think is not only not constitutionally prohibited, 
it is constitutionally protected, and I think we are doing a 
lot better. Notwithstanding the cases that have been brought 
before this Committee, I think we are doing a lot better in 
that area than we used to.
    We have got problems on both sides of that course of 
neutrality that I think the schools ought to take, and we can 
bring attorneys from People For to this board and tell horror 
stories on the other side too. So there are problems on both 
sides, but I think in the main we are doing better now.
    There is some limitation I think to what even students can 
do and say on campus. They cannot be disruptive. It has to not 
be harassing of other students. You can ask somebody to go to 
church with you, but if they say no, you cannot badger them on 
and on, and I think the school have an obligation to maintain 
some peace and harmony there when proper religious expression 
gets out of hand and turns into harassment, particularly in the 
younger grades.
    Senator Feingold. I would agree with that. I note that when 
the Clinton administration issued their explanation of what was 
really allowed and what it not allowed, people who were 
concerned became less concerned when they realized the scope of 
activities that certainly are protected within the school.
    Mr. Shackelford, as you know, S. 2323, introduced by 
Senator Shelby, would remove jurisdiction from both the Supreme 
Court and the inferior Federal Courts regarding matters where 
relief is sought against an entity, officer or agent of the 
Federal, State or local Government by reason of the entity or 
agency's acknowledgement of God as the sovereign source of law, 
liberty or government. Senate Bill 1558, introduced by Senator 
Allard would remove jurisdiction from inferior Federal Courts 
regarding the subject matters of displaying the Ten 
Commandments, the word God in the Pledge of Allegiance, and the 
motto ``In God we trust.''
    In the Balch Springs case the Court played an important 
role for you and your client. By filing suit in U.S. District 
Court you were able to bring the parties to the table and 
ultimately to reach an agreed judgment on January 8th of this 
year. Do you not agree that Federal Courts can play a valuable 
role in resolving disputes about religious expression, and that 
in effect stripping the courts of their jurisdiction regarding 
these very important issues might be detrimental to the free 
exercise of religion?
    Mr. Shackelford. I do think they can obviously play a 
valuable role. The problem is if they go so astray of the words 
of the Constitution that they are not actually helpful, but 
they act like a legislature, and I think that is the concern. 
The idea that our Founders, in passing the First Amendment, 
would think that there is something wrong with acknowledging 
the existence of God, I think is an example of how far they 
have gone adrift, but I do think that the courts can be 
helpful. I think the shame in the religious freedom area is 
that the only way those of us who practice in this area can win 
now is under the free speech clause, that the free exercise 
clause has been so reduced that you have to argue free speech 
to protect religious expression, and I think that is sad.
    But again, you cannot argue free speech and therefore you 
can get some protection in the courts for religious freedom 
even today.
    Senator Feingold. I appreciate your candor in that answer 
because a couple of the episodes today on both sides of this 
question were assisted to the right answer by the ability of 
the Federal Courts to be involved.
    Mr. Rosenauer, thank you for agreeing to appear before the 
Committee and sharing your family's story with us. Some people 
who have followed your case seem to think that the school board 
members were simply engaged in their own private religious 
expression. To you and others, opening school board meetings 
with the Lord's Prayer amounted to government endorsement of 
religion and made those who did not share the religious views 
of the board members feel something like outcasts. I take it 
that you support the free exercise of religion as long as it is 
not government endorsed; is that right?
    Mr. Rosenauer. Oh, definitely. If I can just go back a 
minute to Mr. Cornyn's question a little bit. You asked if we 
were satisfied. One of the things on the agreement is that we 
had actually wanted in the agreement places where discussion of 
specific deities was allowable, specific as far as content and 
such like that. And actually, the school board members are the 
ones who did not want that include in the agreement.
    But, no, to your question, yes. It is just that this--our 
action against the school board, an awful lot of the people in 
Manatee County and the officials were trying to turn it into a 
religious argument, religion versus non-religion and so on, and 
basically it was not that. It was a matter of the Rosenauer 
family standing up to the government in the name of the school 
board for I have a right to raise my children in the faith and 
in the manner to which I believe, and not in the faith and the 
manner to which they believe in.
    Senator Feingold. Thank you, sir.
    Back to Reverend Walker. In testimony today, Judge Moore 
states that he believes public officials are unfairly 
restricted in acknowledging God. What in your view is the scope 
of public officials' rights to acknowledge God in their 
official capacity?
    Rev. Walker. I think they can certainly talk about their 
religious convictions in their campaign speeches, in their 
speeches on the floor. They can use their religious beliefs to 
inform their policy decisions in a variety of ways, but they 
cannot use that religious acknowledgement or conviction to 
force that believe on other people through coercive action. 
They cannot, as in the case with Judge Moore, set up a 
religious shrine at the front of the highest court in the State 
of Alabama, by which everyone who goes into that courtroom must 
pass in order to get justice. I think that is more than an 
acknowledgement of his belief in God, but actually establishing 
a religious tradition, a preferred scripture, and creating a 
religious display that under any imaginable understanding of 
the establishment clause violated the intent of that provision.
    And then of course there are legal guidelines that we use 
to determine whether the policies that result from those 
religious convictions are constitutional, they have to have 
some secular purpose. They may not have the primary effect that 
advances religion, may not excessively enable the government 
with religion. As long as it passes those tests, the fact that 
a public official acknowledges God or has some religious 
motivation behind his or her actions in office, is not 
problematic in my view.
    Senator Feingold. Thank you, Reverend.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Feingold.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. These certainly 
are important issues, delicate and sensitive issues for 
America. We need to respect other people's faith and be 
sensitive to that. I think that is the first rule of courtesy, 
is to be sensitive to other people and how they believe.
    I remember vividly saying something to my father once about 
some strange religious practice I thought was strange at least. 
And he said never make fun of somebody's religion. And I think 
that is American tradition, that we respect faith, and I do 
believe that the Founders respected faith, and they intended 
people to be able to exercise it freely, but they did not 
intend for the government to favor one religion over another. I 
think that is fundamental to the deal. I read recently a 
biography of James Madison and his marvelous letter about the 
persecution of the Baptists in Virginia. The Anglican Church, 
many of them were corrupt, were being paid by the State, and 
they put in jail Baptists, and he could hear them singing 
hymns. And so he felt real strongly about it, and so did 
Jefferson. But Washington and Patrick Henry are on the other 
side. It took a long battle before they passed this thing.
    But let me just ask you this, Judge Moore. Virginia Act for 
Establishing Religious Freedom was Jefferson's and Madison's 
victory in Virginia for religious freedom, something I am most 
proud of. You do not know I am going to ask this, but you 
probably know about it because I know you are a scholar of 
these things. But again it is this way.
    This is a Virginia Act Establishing Religious Freedom, well 
aware that almighty God hath created the mind free, that all 
attempts to influence it by temporal punishments or burdens or 
by civil incapacitations tend only to beget habits of hypocrisy 
and meanness and are a departure from the plan of the holy 
author of our religion, who being a lord, both of body and 
mind, yet chose not to propagate it by coercions on either, as 
was in his almighty power to do.
    I remember very vividly the first conversation you had with 
me at one point, and I do not even know how it came about, and 
you shared to me your view that there is a difference between 
acknowledging God and establishment of a religion.
    Justice Moore. Exactly.
    Senator Sessions. We do not have a whole lot of time, but 
could you share with us your view of that?
    Justice Moore. Well, first, turning back to the Bill for 
Religious Freedom, clearly that was Jefferson's statement, well 
aware that almighty God hath created the mind free and 
manifested his supreme will that free it shall remain by making 
it all together insusceptible of restraint, that all attempts 
to influence it by temporal punishments, burdens or civil 
incapacitations tend only to beget habits of hypocrisy and 
meanness and are a departure from the plan of the holy author 
of our religion, who being lord both of body and mind, yet 
chose not to propagate it by coercions on either, as it was in 
his almighty power to do; but to extend it by its influence on 
reason alone.
    Now, listen to this, that the impious presumption of 
legislators and rulers, who being themselves but fallible and 
uninspired men, have assumed dominion over the faith of others, 
setting up their own opinions and modes of thinking as the only 
true and infallible, and as such endeavoring to impose them on 
others, have created and maintained false religions across the 
earth to all mankind.
    What Jefferson is saying here is that God gives us the 
freedom, and for a Baptist representative here to say a public 
official cannot acknowledge God is hypocrisy. We have a right, 
we have a duty to acknowledge God. The organic law of our 
country, the Declaration of Independence, according the United 
States Code Annotated, states that this Nation was established 
by the laws of nature and of nature's God, that we hold these 
truths to be self evident that all men are created equal and 
endowed by their Creator with certain inalienable rights. Among 
these are life, liberty and pursuit of happiness. And 
Government's only role is to secure those rights for us.
    Now we find the Federal Courts coming into our State and 
telling us we cannot acknowledge God. That is exactly what they 
did in Alabama. They have no right, no jurisdiction to do that. 
The only purpose of the First Amendment was to keep the Federal 
Government out of the affairs of the State with regard to the 
acknowledgement of God.
    Why is there so much confusion in the First amendment? It 
is very simple. The law says Congress shall make no law 
respecting the establishment of religion or prohibiting the 
free exercise thereof. We have just forgotten the word 
religion, what it means. We have confused it with terms that 
you cannot accommodate, you cannot promote, you cannot advance, 
you cannot endorse, you cannot excessively entangle. We feel 
like outcasts. We are offended. All these are feel good things, 
not law. We have departed from the law. If Congress cannot make 
a law, how in the world can the Supreme Court interpret a law 
that Congress cannot make?
    You see, the Supreme Court is coming into the States and 
telling these States that any acknowledgement of God is 
verboten. Well, that contradicts the laws of every State. It 
contradicts my oath in Alabama. They said, well, the justice 
system. The justice system in Alabama is established invoking 
the favor and guidance of almighty God.
    I want to answer your question with one other thing. The 
House of Representatives in 1854, 100 years before they put 
``under God'' in the pledge, they talked about religion. This 
is the Judiciary Committee. They said: Congress shall make no 
law respecting the establishment of religion. Does our practice 
of chaplaincy in the military present practice violate this 
rule? What is an establishment of religion? It must have a 
creed defining what a man must believe. It must have rights and 
ordinances which believers must observe. It must have ministers 
of defined qualification to teach the doctrines and administer 
the rights. It must have test for the submissive and penalties 
for the nonconformists. There never was an established religion 
without all these.
    You see, God's not religion. He never has been, and man is 
not the neutral party here. Government is not the neutral 
party. It is God who gave us that freedom. These matters belong 
to the States, not to Federal Government. The Constitution 
Restoration Act of 2004 says something so basic that no 
American person should disagree. It says that when a Federal or 
State official acknowledges God--by the way, they all do, even 
the United States Supreme Court opens with God save the United 
States and this Honorable Court. Every representative here in 
Congress opens their sessions with prayer. ``In God we trust'' 
is the national motto. The President takes his oath, not on the 
Koran, but on the Holy Bible. That is not to deny other people 
the right to worship according to the dictates--
    Senator Sessions. Could he take it on the Koran?
    Justice Moore. If that was his choice, yes. It would not 
acknowledge the God upon which this Nation was founded, but has 
he got the freedom to do that? Absolutely, it is not an 
establishment of religion and the President would not be 
Congress. Congress shall make no law respecting the 
establishment of religion. Is a monument a law? Does a monument 
forbid you to do anything or command you to do anything? Is it 
establishment? Is it religion? Am I Congress? And you say, 
well, by and through the Fourteenth Amendment. By and through 
the Fourteenth Amendment does not give the right of the Federal 
Government to forbid the acknowledgement of God from the 
States. It is that simple. It is outside Federal jurisdiction 
and this Act should be passed by Congress to stop--we call this 
court stripping. In the 107th Congress, just last year, they 
used this Article III jurisdiction 12 times, one of them by 
Representative Daschle regarding the forestry out in his 
district. Certainly if you can use it for that, you can use it 
to stop the Federal Courts from interfering with the right of 
the States to acknowledge God. It is not taking anything from 
the Courts to which they have a right to. It is restricting, 
regulating them in accordance with Article III from something 
they have no jurisdiction of.
    Senator Sessions. Mr. Walker, briefly, I think you would 
want to respond.
    Rev. Walker. Yes.
    Senator Sessions. And maybe Mr. Shackelford, you lawyers. 
But I wonder seriously if Judge Moore is not touching on 
something that maybe could help us out of this thicket. He is 
saying it is alright to acknowledge God, but you cannot 
propagate a faith or a religion. Would you comment on that, and 
Mr. Shackelford?
    Rev. Walker. Sure. Yes, I did not say that it was 
impermissible for a public official to acknowledge God. I said 
just the opposite, and Judge Moore just catalogued the dozens 
of ways in which that is commonly done. Senator Shelby withdrew 
the laundry list earlier. Religion is routinely acknowledged by 
public leaders.
    But what you cannot do is to put up a monument in the 
middle of the courthouse that starts off saying ``I am the Lord 
your God, who brought you up out of the land of Egypt, the 
house of bondage. You shall have no other Gods before me,'' and 
to put the imprimatur of the highest judicial officer in the 
State of Alabama on that expression of religion, if that is not 
establishing a religion, I do not know what does. That is the 
difference. It is not just an acknowledgement. It is an 
establishment, not just of religion generally, but of a 
particular religious tradition, and we part company simply on 
that conviction.
    Two Baptists here disagreeing with one another like you 
have never seen before.
    Justice Moore. We may disagree, Senator, but he also 
disagrees with George Washington, John Adams, the first Senate, 
the first Representatives of the House of Representatives, who 
after April 30th, 1789 in New York City, right above Wall 
Street, he took his oath, acknowledged God. They went up the 
street and went to St. Paul's chapel. I recently visited St. 
Paul's Chapel. Anybody here can go. It stands right at the edge 
of Ground Zero, and right in front of the chapel with the Ten 
Commandments in two tables of the law. They went back to 
Federal Hall and formed the first First Amendment, and the 
first thing they did was allow the President to acknowledge 
God. The only thing the case in Alabama stands for, according 
to the Federal District Judge--and I have his opinion right 
here--he said he was not saying that the Ten Commandments could 
be displayed in government office buildings. He was saying that 
when you did it with a monument, with the express purpose of 
acknowledging the Judeo-Christian God as the moral foundation 
of law, you cross a line between the permissible and the 
impermissible. No judge, no Federal Court, can tell a State 
official to violate his oath of conscience to his own 
Constitution that acknowledges God. That is simply an 
acknowledgement of God. It always has been and always will be.
    Mr. Shackelford. Senator, to answer your question, there 
are sort of two concepts rolling around here, and I think Judge 
Moore hits it, is we are talking about the establishment 
clause. Unlike the Supreme Court, unfortunately, we ought to 
look at the words of the establishment clause. It says ``an 
establishment of religion.'' We hear terms like separation of 
church and State thrown around, but almost never will you see a 
situation where the term even applies because it is almost 
never a church. It is usually some kid in a school or some 
situation. It is the attempt to separate religion from State, 
which is never what the Founders intended. It is not what the 
establishment clause is meant to do. That is hostility to 
religion, to separate religion from State. It is talking about 
really the separation of not having an establishment of 
religion, and the danger of this separation of church and State 
terminology is we live in a society now where government is 
almost everywhere we go. If you have strict separation that is 
simply a nice vehicle to say religion needs to retreat to the 
corners of society, because everywhere the government is, 
religion has to retreat.
    Senator Sessions. Such as a senior center, senior citizens 
center.
    Mr. Shackelford. Yes, and that is why the confusion with 
the senior citizen center. That is why this type of thing is 
going on. If we went back to the words of the Constitution, 
even besides the fact that it says Congress, okay, and almost 
never is it a Congress that we are talking about, let us just 
look at the words ``an establishment.'' That is not talking 
about the current test of the Supreme Court, for instance, the 
endorsement test, that is supposedly unconstitutional for the 
government to endorse religion in general. I mean our Founders 
would be shocked at the idea that you cannot say religion is 
good. But that is what the test says because they have so gone 
away from what the Constitution says, and they are making up 
the rules as they go.
    Senator Sessions. Chairman, I guess my time is over.
    [Laughter.]
    Senator Sessions. Thanks to all of you.
    Chairman Cornyn. I am enjoying the vigorous debate, 
discussion and testimony of these witnesses. We thank all of 
you for being here. We have another panel right behind you, so 
we are going to thank you and ask you to make way for the next 
panel.
    I know a question came up earlier about the People for the 
American Way's position on the Equal Access Act, and against 
the Good News Club decision, and we will make a copy of those 
amicus briefs raising objections in both of those cases part of 
the record without objection.
    [Pause.]
    Chairman Cornyn. We are going to move quickly in the 
interest of time to the next panel, so if I can ask everyone 
else in the chamber please to hold it down a little bit, we 
will do that henceforth.
    We have three distinguished legal scholars. Professor 
Richard Garnett, who is an Associate Professor of Law at Notre 
dame Law School in South Bend, Indiana. Professor Garnett 
received his undergraduate degree from Duke University and his 
law degree from Yale Law School. He served as a law clerk in 
the Federal Public Defender's Office in Arizona as well as a 
law clerk to Chief Justice William Rehnquist, and Chief Judge 
Richard S. Arnold of the U.S. Court of Appeals for the Eighth 
Circuit.
    Professor Melissa Rogers is a Visiting Professor of 
Religion and Public Policy at Wake Forest University Divinity 
School in Winston-Salem, North Carolina. She previously served 
as the Founding Executive Director of the Pew Forum on Religion 
and Public Life, and as General Counsel of the Baptist Joint 
Committee on Public Affairs, the same organization that Mr. 
Walker is associated with. She received her law degree from the 
University of Pennsylvania Law School and her undergraduate 
degree from Baylor University, which of course is located in 
the great State of Texas.
    Professor Vincent Philip Munoz is a Civitas Professor with 
the American Enterprise Institute here in Washington, D.C. He 
is an Assistant Professor of Political Science at North 
Carolina State University, where he teaches public law and 
political philosophy. Professor Munoz received his Ph.D. from 
Claremont Graduate School, his M.A. from Boston College and his 
B.A. from Claremont-McKenna College.
    Thanks to all of you for being here. We very much 
appreciate the benefit of your expertise and enlightenment on 
this difficult subject, and we look forward to hearing from 
you.
    Professor Garnett, you may please proceed.

 STATEMENT OF RICHARD W. GARNETT, ASSOCIATE PROFESSOR OF LAW, 
           NOTRE DAME LAW SCHOOL, SOUTH BEND, INDIANA

    Mr. Garnett. Mr. Chairman, I thank you and your colleagues 
for the chance to share my thoughts with you about the place of 
religion in civil society, and also about the protections that 
our Constitution guarantees to religious expression. These are 
issues of great importance to all of us, and to me as a lawyer, 
a teacher and as a citizen.
    I have a longer law professorish statement that I would 
like to have included in the record if that is all right.
    Chairman Cornyn. Certainly. It will be made part of the 
record without objection.
    Mr. Garnett. I will begin with a fundamental premise. As 
President Clinton put it nearly 10 years ago, religious freedom 
is literally our first freedom, and it was central to our 
Founders' vision for America. True, the framers did not always 
agree about what the freedom of religion meant, and we were 
reminded of that today. But they knew that it mattered, and 
they were right.
    The protections afforded to religious freedom in our 
constitutional text and tradition are neither accidents nor 
anomalies. They are not, as one scholar has claimed, an 
aberration in our secular state. Our Constitution does not 
regard religious faith with grudging suspicion or as a bizarre 
quirk or quaint relic, rather as a former colleague of mine 
once observed, our laws protect the freedom of religion because 
religion is important, and because, put simply, the law thinks 
religion is a good thing.
    In our tradition religious freedom is cherished a s basic 
human right and as a nonnegotiable aspect of human dignity. 
Accordingly, we should regard government restrictions on 
religious expression and not religious expression itself with 
sober skepticism.
    As you know, Mr. Chairman, the law books and the papers are 
full of stories of public officials who have lost sight of 
these fundamental premises, and these officials have on 
occasion turned things upside down, treating citizens' public 
religious expression with suspicion rather than with 
evenhandedness and respect.
    The good news though is that the Supreme Court by and large 
continues to reaffirm that the Constitution neither requires 
nor permits State actors to single out private religious 
expression for unfavorable treatment. The Court continues to 
remind us, in other words, as Justice Scalia has put it, that 
private religious speech, far from being a First Amendment 
orphan, is as fully protected as secular private expression.
    Why does discrimination against religious expression 
continue again from time to time? I am confident that the 
public officials involved in the cases you have heard about 
today do not for the most part harbor ugly prejudice or deep 
hostility toward religious believers. Instead, I am convinced 
that many well-meaning Americans today fail to understand in 
several important ways the text, history and purpose of our 
First Amendment.
    For starters, many misunderstand the meaning of the phrase 
``separation of church and State'' and the place of this idea 
in our tradition. To be sure, the separation of church and 
State, if properly understood, is a crucial component of 
religious freedom, that is, the institutional and 
jurisdictional separation of religious and political authority, 
respect for the freedom of conscience, and strict government 
neutrality with respect to different religious traditions, all 
of these separationist features of our Constitution, have 
helped religious faith to thrive in America. In other words, 
the separation of church and State, if properly understood, is 
not an anti-religious ideology, but an effective way to 
implement our overarching commitment to religious freedom.
    Unfortunately, many have confused Jefferson's figure of 
speech about a wall of separation with an entirely unsound rule 
that would authorize public officials to scrub clean the public 
square of all sectarian residue. This view is seriously 
mistaken, and indeed, as John Courtney Murray lamented, about 
50 years ago, arguments like this stand the First Amendment on 
its head, and in that position, he said, it cannot but gurgle 
nonsense. In fact, our Constitution separates church and State 
not to confine religious belief or to silence religious 
expression, but to curb the ambitions and reach of governments. 
The aim is not to put religion in its place after all, 
government lacks the authority to determine religion's place, 
but to protect religion by keeping the government in its place.
    In addition, many of us have forgotten that the First 
Amendment constrains government conduct only. It has nothing to 
say about private action except of course to confirm that 
religious expression and exercise and worship are worth 
protecting. The establishment clause is not a sword, driving 
private religious expression from the marketplace of ideas. 
Rather the clause is a shield that constrains government 
precisely to protect private religiously motivated speech and 
action.
    So nothing in our tradition implies a duty of self 
censorship by religious believers, and nothing in the First 
Amendment suggests that religious expression is out of place or 
unwelcome in public debate. Still, many appear to have the view 
that it is somehow in bad taste to bring religion into 
discussion of public policy. On this view, as Stephen Carter 
memorably put it, religion is like building model airplanes, 
just another hobby, something quiet, something trivial, not 
really a fit activity for intelligent adults.
    But in fact our Constitution does not demand the 
trivialization of religion. and does not require what Richard 
Newhaus famously called a naked public square. There is no 
``don't ask-don't tell'' rule that applies to religious 
believers who are presumptuous enough to venture into public 
life, and there is no special obligation on devout religious 
believers to sterilize their speech before entering the public 
forum. Active and engaged participation by the faithful is 
perfectly consistent with the institutional separation of 
church and State that the Constitution is understood to 
require.
    Thank you very much.
    [The prepared statement of Mr. Garnett appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Professor Garnett.
    Professor Rogers, we would be happy to hear from you.

STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF RELIGION AND 
PUBLIC POLICY, WAKE FOREST UNIVERSITY DIVINITY SCHOOL, WINSTON-
                     SALEM, NORTH CAROLINA

    Ms. Rogers. Thank you Mr. Chairman, Senator Feingold and 
other members of the Subcommittee. I am Melissa Rogers, and I 
am Visiting Professor at Wake Forest University Divinity 
School. As you said, I also formerly served as the Founding 
Executive Director of the Pew Forum on Religion and Public Life 
and as General Counsel to the Baptist Joint Committee on Public 
Affairs.
    I am also an attorney, a lifelong Baptist and a youth 
Sunday school teacher, probably one of the hardest of my jobs.
    Mr. Chairman, I am not persuaded that there is persistent 
or frequent governmental hostility toward religious expression 
in the public square. I see no need for legislation on this 
issue. Indeed, I believe that religious freedom is something 
that America usually gets remarkably right.
    Let me take a few minutes just to look at some of the 
examples that we have seen this afternoon. We have talked a lot 
about the Supreme Court, and I am sure we will do so more. In 
my opinion the Supreme Court has struck a very wise balance by 
prohibiting the government from promoting religion, but also by 
protecting the people's rights to promote their own religion. 
That is a very wise balance. It spells benevolent neutrality 
toward religion, not hostility toward religion. It promotes 
religious freedom, and it also, I would add, protects religion 
by keeping the government out of religion. That is good for 
religion. It helps religion to stay vital and autonomous from 
the State.
    The first case that we talked about this morning was the 
Hearn case, and in my opinion, that case represents a very 
serious mistake that was made by the school, and I am grateful 
that the Department of Justice entered that case to set things 
right. The facts that I know do not suggest in that particular 
example a kind of generalized hostility to religion, but they 
may perhaps suggest some kind of particularized hostility to 
Islam, and certainly in the wake of the 9/11 attacks it is 
particularly important that our own country protect the 
practice of Islam and our own country. President Bush I think 
did a very good job of that right after the 9/11 attacks and we 
need to continue to educate people about the practice of Islam 
in America, and to protect students' expression of their faith 
by wearing a head covering and by having this opportunity to 
pray during the school day.
    Several examples that Kelly Shackelford mentioned about 
students in schools and their giving gifts to other students 
and cards and things, when there were times for gift giving and 
the like, and from what I know about this, these sound like 
examples of personal expression of religion that the law 
protects. In other words, this is not a problem with the law, 
this is a problem with a misunderstanding of the law. In my 
general experience, like Professor Garnett, this does not stem 
from hostility towards religion, but ignorance about the law 
and confusion.
    When any violation is identified like Nashala Hearn's, it 
is a serious matter. It is something that we should seek to 
rectify quickly. But we need to treat problems with the right 
remedy. When we have a misunderstanding of the law we need to 
educate people better about what the law is. We do not need to 
change the law in that situation.
    Also the senior center also sounds to me like that is 
personal expression that the law protects. Indeed, I worked 
with people during my time at the Baptist Joint Committee to 
write some rules for senior citizens that allowed this kind of 
equal access rule to be instituted, where groups were allowed 
to have private meetings, whether they were religious or not, 
in the senior center, and they were allowed to do that without 
interference from the State because that was recognized as 
individual religious expression, not government religious 
expression. And there is an important difference between the 
two.
    Judge Moore's case does not stand for the proposition that 
all Ten Commandments displays are unconstitutional. Beside 
being able to post Ten Commandments in our churchyards and our 
homes and the yards out in the front, there are also ways to 
display the Ten Commandments in a constitutional manner on 
government property. And this case does not prohibit public 
officials from acknowledging God. In my testimony I talk about 
many ways in which government officials can reflect their 
personal religious convictions and that is all quite 
appropriate. This case does not reflect hostility to religion. 
Instead this case stands for the proposition that the American 
Government will not endorse the majority Christian faith over 
other faiths. That is a noble proposition. It stands for the 
principle that the government will not become involved in the 
propagation of religion, but it will leave that task to 
citizens and to houses of worship. That is a wonderful 
proposition. It leaves us as religious people more free. The 
case stands for the notion that the American courts belong to 
all of us and not just those who believe a certain way.
    As I have heard more about Judge Moore's case, I think 
about how I would feel as an attorney if I lived in another 
land, in another place, where the State endorsed Islam, for 
example. How would I feel if on my way to court I had to pass a 
central monument lifting up the religion of Islam? How would I 
feel if I was made to stand to listen to Islamic prayers in the 
courtroom before I started my case, and to give attention to 
those prayers? I think I would feel unwelcome as a Christian. I 
think I would feel that the State was coercing me to give 
respect and honor a religion I do not endorse or believe in. I 
think I would have legitimate concerns that that Nation's 
courts would not treat me and my fellow Christians as well as 
it would treat Muslims.
    We cannot get off the hook by simply saying that will never 
happen in America. That is not a good justification. There has 
to be a principle here, and if the situation I described is 
intolerable and wrong in our own country and it is intolerable 
and wrong for a State-endorsed Islamic faith, then it is just 
as intolerable and wrong for us to do it as Christians in our 
own country. Instead we have to extend to others the same 
freedom we demand for ourselves.
    Where there are misunderstandings of the law, either over 
interpretations or under interpretations, they need to be 
corrected. Those are serious mistakes, and any denial of 
religious freedom, I would work very hard to correct, and I 
have been a part of those educational solutions in the past and 
I would like to work toward more educational solutions in the 
future. But the First Amendment gets it right. It prohibits the 
government from promoting religion, but protects the people's 
right to do so.
    This is not the French rule. There was talk earlier about 
some effort perhaps in America to cleanse the public square of 
religion. France, I think, is arguably headed in that direction 
because they are saying, ``You cannot have this religious 
symbol on government property. That is inappropriate. You are 
on government property. You take off that religious symbol.'' 
That is cleansing the public square of religion.
    We do not have that rule. The key question in our own 
country is to whom the speech is attributable. If it is 
attributable to a person, then it is protected. If the 
promotion of religion is attributable to the State, then it is 
prohibited. That is the right rule.
    Finally, let me just close by saying there is one thing 
that I want to mention that has troubled me in this hearing, 
among some other things. I have heard a number of people talk 
about on the one side we have religious liberty, and that is 
one thing, and on the other side we have this establishment 
clause. So we have religious liberty over here and we have the 
establishment clause over here. So the establishment clause is 
not a part of supporting religious liberty. It is almost as if 
we are saying the free speech and free exercise clause are 
religion's friend and the establishment clause is religion's 
foe. They are two different things and they do not work 
together.
    I think by preventing the government from supporting 
religion we keep the government out of religion. We acknowledge 
that religion is not and should not be a creature of the State. 
We acknowledge that the government should not be making 
decisions about religion. Indeed, I feel sort of sick when I 
start hearing people talk about nonsectarian, nonproselytizing 
prayers. That means the government is going to determine what 
is sectarian and what is proselytizing. It means that the 
government is going to be very much involved in making 
determinations about religious doctrine and speech, and it 
seems to me we have to avoid that bad result. We also have to 
avoid the government endorsing religion, and we have to leave 
that promotion of religious expression to people and to their 
houses of worship.
    By keeping the government from supporting religion, we 
actually ensure that religion remains vital, strong and 
autonomous in America.
    In short and in closing let me say that under the free 
exercise clause, government should not interfere with religion. 
Under the establishment clause the government should not 
support religion. When we put these two things together, we get 
real religious freedom, and that is the noble goal we should 
continue to pursue.
    Thank you.
    [The prepared statement of Ms. Rogers appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Professor Rogers.
    Professor Munoz.

 STATEMENT OF VINCENT PHILIP MUNOZ, CIVITAS FELLOW OF RELIGION 
  AND PUBLIC LIFE, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, 
   D.C., AND ASSISTANT PROFESSOR OF POLITICAL SCIENCE, NORTH 
                   CAROLINA STATE UNIVERSITY

    Mr. Munoz. Mr. Chairman and members of the Subcommittee, 
thank you for inviting me to present my views. I am the Civitas 
Fellow of Religion and Public Life at the American Enterprise 
Institute and an Assistant Professor of Political Science at 
North Carolina State University.
    In addition to my spoken comments, I have a longer written 
statement that I would like to submit for the record.
    Chairman Cornyn. Without objection.
    Mr. Munoz. I want to try to explain today why the hostility 
toward religion that we have heard is taking place, and if I 
can communicate only one point in my testimony today, it is 
this: the Supreme Court of the United States remains primarily 
responsible for the continued legal hostility towards religion 
in America today. Simply stated, the Supreme Court has 
interpreted the establishment clause in a manner that 
encourages and sometimes demands hostility toward religion.
    Two establishment clause doctrines in particular lead to 
hostility toward religion, the endorsement test and the 
coercion test.
    The endorsement test, which was invented by Justice Sandra 
Day O'Connor in the 1984 case, Lynch v. Donnelly, prohibits 
State actors from endorsing religion. It purportedly keeps 
government religiously neutral. In practice, however, no 
endorsement quickly becomes outright hostility, especially in 
the context of public school. Under this rule activities that a 
child perceives to favor religion must be prohibited to avoid 
the appearance of governmental endorsement. The quintessential 
example of how the endorsement test purges religion from the 
public square and public schools occurred in the 1985 case, 
Wallace v. Jaffree. The Supreme Court used the test to strike 
down an Alabama law that directed the public school day to 
begin with a moment of silence for voluntary prayer. Justice 
O'Connor claimed that to set aside only one minute for children 
to pray silently to themselves endorses religion, and thus, 
under her interpretation, violated the Constitution. In 1989 
the Supreme Court used the endorsement test to require the 
removal of a privately-funded nativity scene in front of the 
courthouse of Allegheny County, Pennsylvania, and perhaps most 
notoriously, the Ninth Circuit Court of Appeals employed the 
endorsement test to prohibit teacher-led recitations of the 
Pledge of Allegiance in public schools. The words ``under God'' 
the Ninth Circuit claimed, endorse a particular religious 
concept, namely, monotheism. The Ninth Circuit's decision has 
come under heavy criticism including criticism from the Senate, 
but the Ninth Circuit only followed the example set by the 
Supreme Court. ``Under God'' endorses the civic faith Americans 
have adopted since the signing of the Declaration of 
Independence, but this expression and the tradition it follows, 
if we use Justice O'Connor's standards, violate the 
Constitution.
    The second leading test used by the Supreme Court for 
establishment clause jurisprudence is the coercion test. 
Invented by Justice Kennedy in the 1992 case, Lee v. Weisman, 
the coercion test sounds reasonable. No one believes the that 
State legitimately may coerce religious practice, but as 
applied by the Court, it too drives religion out of the public 
square. In Lee v. Weisman the Court eliminated a 
nondenominational invocation and benediction at public school 
graduations. According to Justice Kennedy, to ask public school 
children to stand respectfully while others prayed 
psychologically coerces religious practice. In the 2000 case 
Santa Fe Independent School District v. Doe, as you know, the 
Court prohibited the Texas tradition of nondenominational 
prayers at high school football games. The Court said that some 
fans might feel like outsiders. Thus interpreted, the coercion 
test secures the right not to feel uncomfortable because of 
others publicly expressing their religious beliefs.
    It is common sense to say that government may not force a 
student to pledge allegiance or to recite a prayer. It is all 
together different to say that because some feel like 
outsiders, others may not pray. Tolerance should be a two-way 
street. Like the endorsement test, the logic of the coercion 
test calls for the curtailment of public expressions of 
religious sentiment. It is not coincidence that the Ninth 
Circuit also cited Justice Kennedy's doctrine of psychological 
coercion when it struck down the Pledge of Allegiance.
    The cases I have mentioned are significant in and of 
themselves. Their impact extends far beyond the specific 
parties involved. What constitutes an impermissible endorsement 
or psychological coercion is inherently indistinct. The law's 
vagueness makes State acknowledgement of religious sentiment 
suspect. It enables special interest litigators who are 
professionally hostile towards religion to file lawsuits to 
challenge almost any State action that accommodates religion. 
The pernicious effect of such litigation, and the mere threat 
of it, is considerable.
    Imagine yourself as a high school principal or a city 
council member. It is easier to remove the Ten Commandments 
from the public park or to silence a school valedictorian who 
wishes to speak about religious faith than it is to fight a 
legal battle against the ACLU. It is easier to mandate a 
religion-free zone than to be sued. Fearful local officials and 
public school administrators have the incentive to eliminate 
the public acknowledgement of religious sentiment in order to 
avoid costly litigation, and in this way, the Supreme Court has 
armed anti-religious activists to impose their vision of the 
secular State to legal threats and litigious intimidation. The 
result is not only the naked public square but the trampling of 
religious individuals' constitutional rights to religious free 
exercise and the freedom of expression.
    The Constitution's text prohibits laws respecting an 
establishment of religion or prohibiting the free exercise 
thereof. It says nothing about governmental endorsement of 
religion. Justice O'Connor has effectively replaced the text 
and original meaning of the First Amendment with her own words 
and her own ideas. Justice Kennedy's psychological coercion 
test is also far off the mark.
    The Founders understood religious coercion to mean being 
fined or being imprisoned or being deprived of a civil right on 
account of one's religion. Coercion to them did not include 
merely feeling uncomfortable when other people mention God. The 
modern Court has lost sight of the fact that the framers of the 
First Amendment meant to protect religious freedom, not to 
banish religion from the public square. The free exercise of 
religion is the primary end fostered by the First Amendment. No 
establishment is a means towards achieving that end. By 
prohibiting religious establishments the Founders sought to end 
things like State officials appointing bishops, limiting public 
office to members of the established church only, and the 
licensing and regulation of dissenting religious ministers. 
They did not mean to forbid the public acknowledgement of God 
or even nonsectarian endorsement of religion. They certainly 
did not intend to constitutionalize doctrines like the 
endorsement test and the psychological coercion test.
    Until these doctrines are overturned, legal hostility to 
religion in the public square will continue.
    Thank you.
    [The prepared statement of Mr. Munoz appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Professor Munoz, and thanks to 
the entire panel for illuminating the difficult issue, and one 
that I have struggled with in the past and continue to struggle 
with today. It is no wonder that local elected officials, 
whether they be school board officials or city council men or 
women or others, that they would struggle with them because 
indeed we see that the Supreme Court of the United States is in 
a struggle with itself over some of these cases.
    I guess, Professor Rogers, and I appreciate very much you 
being here, it is tempting to me to accept your statement that 
this is really a case of just people being misinformed or 
ignorant about what the First Amendment requires, and this is a 
friendly question, by the way. It really is very tempting, but 
I cannot agree with you if you mean by that that there are not 
people who are decidedly on the other side of these issues in a 
very organized way.
    For example, I know in the Baptist Joint Committee we heard 
agreed with the Equal Access Act, and the Good News Club cases, 
we know that the ACLU and the Americans United for Separation 
of Church and State and People for the American Way were on the 
other side of it, and indeed these were, I believe, divided 
Court opinions. So there was not this consensus that the law is 
clear and the people who are misinterpreting it, it is their 
fault. It is not the fault of the people at the top who are 
indeed writing the opinions and telling us what the law is. And 
it really does not acknowledge the role of some of the 
organized groups who are out there, who from my perception, 
take a very hostile view toward any public expression of 
religion.
    But I would like for you to--and I think Professor Munoz 
has done us a service by focusing on a couple of tests, the 
endorsement test and the psychological coercion test. Could you 
give us the benefit of your thoughts on how if private 
expression of one's faith, if done in a public forum, how that 
would ever pass Justice Kennedy's psychological coercion test, 
or if done in a public forum controlled by some governmental 
entity, how that would ever pass the endorsement test. It seems 
to me like both of those would be very real impediments toward 
the exercise of one's religious liberty, even if from a 
standpoint of a private expression of faith or prayer if done 
in a public setting, and if indeed our goal is not to create a 
faith-free zone or a naked public square, how do we get around 
that?
    Ms. Rogers. You refer to the coercion and endorsement test, 
and I would say Justice O'Connor has been the one to be 
principally responsible for the origination of the endorsement 
test. She is also the one who wrote an opinion in the Mergens 
case, which upheld the constitutionality of the Equal Access 
Act, and she gave a very sort of favorable review of that law, 
if you will, saying this is exactly right. She is the one wrote 
the statement that speech promoting and endorsing religion by 
individuals is protected by the Constitution, both the free 
exercise and the free speech clause. What is prohibited by the 
establishment clause is the government's promotion of religion. 
So I think right there you see someone, that is one example. 
Justice O'Connor has said things like the Equal Access Act, and 
also she joined in the majority of course in the Good News 
Club, where community groups can use school property after 
school on an equal access basis. She is one who has brought 
these things together, if you will, has said that the 
government should not promote religion, but it should protect 
the right of individuals and religious groups to do so. I think 
in that very example you see how that understanding can be 
consistent. It is certainly consistent in her own actions and 
statements on the Court.
    Chairman Cornyn. I would say in response, and you raise an 
interesting point, but it sounds to me like a lot of ad hoc 
decision making by the judges. In other words, they look at a 
given case on its facts, and they say, okay, this passes the 
endorsement test. This does not. And there is no way for 
individual citizens to predict how their case might be 
regarded, which indeed creates an environment where there is a 
perceived hostility to the religious expression, because as you 
say, well-meaning people not understanding what set of facts 
are going to result in me losing the case, what set of facts 
are going to result in me winning the case. They simply say, we 
are not going to take a chance, so we are going to ban all 
religious expression from our senior community center, from the 
middle school, from the PTA meeting.
    I think, Professor Munoz, you commented in your remarks 
about the difficulties of apparent ad hoc decision making. 
Could you comment on that?
    Mr. Munoz. Let me get at exactly the problem you have 
brought up. A high school valedictorian speaking at graduation, 
is that a private individual speaking or is that a government 
actor speaking? Who is to know? That is a hard question. So 
what happens is the high school principal says, ``Look, you 
cannot talk about God. I do not want to get sued. The school 
district cannot afford to fight against the ACLU.'' And that 
inherent ambiguity of the endorsement test leads directly to 
this sort of hostility in the law.
    Chairman Cornyn. Thank you.
    Ms. Rogers. I do not know if I could come back to--
    Chairman Cornyn. Let me tell you why the one reason why I 
am mystified by the Supreme Court's jurisprudence. For example, 
in a case that I helped argue before the United States Supreme 
Court when I was Attorney General, Doe v. Santa Fe Independent 
School District, this was student led, student initiated 
prayer, albeit in a public forum before a school football game. 
But the very fact that it was in that forum in large part 
contributed the Court to striking it down as a violation of the 
First Amendment. It appeared to be a very fact-specific case, 
but the problem is when the Supreme Court of the United States 
finds facts, there is no predictability in the outcome.
    Professor Garnett, would you care to comment on this 
dilemma? Do you have any observations to offer us?
    Mr. Garnett. I do not know that I have much to add to what 
you just said, Senator. I share your view that the Doe case was 
wrongly decided, and I also am inclined to agree with your view 
and with my colleague, that the endorsement test leads to a 
danger of unprincipled ad hoc decision making.
    Chairman Cornyn. Professor Rogers, I am sorry. Did you have 
something else you wanted to add?
    Ms. Rogers. I think these tests do have to be sensitive to 
their facts, and I should say that no test of the Court is 
perfect to be sure. But the point of the endorsement test, as 
Justice O'Connor has said many times, is to ensure that 
government does not make one's religious affiliation affect 
one's standing in the political community. I think that is a 
good principle.
    These factual situations have to be considered in making 
that evaluation, but I would disagree with you that there is 
not any way to sort of figure out where the safe harbors are, 
and I do not think the safe harbors are just in ``oh, go talk 
about your religion somewhere else.'' No, the safe harbors are 
not just that. There are more safe harbors for people to use to 
express their religion in public schools and on government 
property because we have had enough decisions using these tests 
to--we cannot decide every case in advance, we cannot predict 
every case in advance, but I think we can lay down some certain 
principles that can be used by government officials. When you 
referred in your opening remarks to the government officials, I 
just find that my experience overwhelmingly is there, that they 
are not hostile. They are simply scratching their heads a 
little bit and trying to say, what does this mean? When you 
have a time to sit down with them and provide them with some of 
the guidelines that various ones of us have worked on, they 
find that they are much better able to apply the law, and that 
creates a situation in which people are actually able to enjoy 
their rights and avoid lawsuits. I think we can make a certain 
substantial amount of progress building on the projects of the 
past to help government officials understand this law better.
    Chairman Cornyn. I guess what makes me skeptical of what 
you say is the fact that we have so many given examples of 
people engaged in litigation, and indeed, these are the people 
who have had the money and the resources to fight the 
discrimination against their free exercise of religion, and I 
wonder how many others have simply, as I think one witness 
said, just caved in, and I worry about it. But while you say 
the endorsement test and coercion test do provide some 
predictability in this area of the law, I wonder, for example, 
where in the world did the endorsement test and the 
psychological coercion test come from? I do not see those words 
in the First Amendment. These are judge-created tests and it 
seems like the Supreme Court has gotten itself in such a box 
that it literally cannot find its way out.
    I am sympathetic to Professor Munoz's statement that the 
Ninth Circuit has written a relatively straightforward opinion 
striking down the Pledge of Allegiance following the United 
States Supreme Court's jurisprudence, which demonstrates how 
messed up it is.
    I see my time is up, so I am going to turn the floor over 
to Senator Feingold.
    Senator Feingold. Professor Rogers, Senator Shelby 
testified in the first panel, proposes that all U.S. Federal 
Courts, including the Supreme Court, be stripped of any 
jurisdiction over cases involving allegations of government 
misconduct where the entity, office or agent acknowledges God 
as a sovereign source of law, liberty or government. He also 
proposes that any decision in the Federal Courts in cases of 
that sort, even those decided in the past, no longer be binding 
precedent on the State courts.
    This proposed bill is clearly directed toward the Pledge 
and Ten Commandments cases and shows the Senator's intent to 
effectively nullify any ruling that the Supreme Court might 
deliver in the future.
    Could you please comment on what effect his proposal would 
have on protections of religious liberty generally in our 
country?
    Ms. Rogers. I think that proposal would hurt religious 
freedom. I think that we need to have the courts look at these 
issues. They need to be able to evaluate them. One of the 
things I put in my testimony, which by the way, I should have 
asked be included in the record, was all the things that the 
courts have done to recognize the way that religion can be 
expressed in the public square. If we tie the courts' hands on 
these issues, I think we will get a lot more situations that 
will involve government endorsements and governmental promotion 
of religion, and that is a religious liberty problem too. It is 
not good for the government to be promoting religion. When the 
government promotes religion it begins to control religion, it 
begins to evaluate religious doctrine, it begins to many times 
dumb down religion, make religion something that is not 
powerful, that does not respond to God, but responds to earthly 
powers. I think that this is a real problem, not just for those 
who would say, ``Look, I do not want the government telling me 
something religious because I am not religious.'' I think 
religious people should be very concerned about government 
promoting religion. It is a harm to religion, and a way to 
undermine its strength I believe ultimately.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Sessions.
    Senator Sessions. Sorry, I had to be in another meeting for 
a few minutes.
    I do not know where we are going with all of this, but I 
agree with you, Mr. Chairman, that the Supreme Court is 
confused, and when we have the Senate commence every day with a 
prayer by a paid chaplain, and when you look right out of that 
chair and onto the wall it says, ``In God we trust,'' in the 
wall of the United States Senate. And then we are told a little 
child cannot pass out a pencil that says ``Jesus loves me'' on 
it, and we cannot have the Pledge of Allegiance. It just 
realizes that we are confused.
    Mr. Munoz, I remember the night the Ninth Circuit rendered 
its ruling, and the leaders of the Democratic Party raced down 
to the floor to denounce the Ninth Circuit and how bad the law 
was and all this, and I remember saying that night that I was 
not sure that they were that far away from much of the 
precedent of the U.S. Supreme Court because it is so messed up.
    How can we get out of this? We do not need these confused 
standards it seems to me. I remember, Mr. Chairman, former 
Attorney General of the United States Griffin Bell, under 
President Jimmy Carter, was in Alabama in a State Bar 
Association, and he was asked a question about, really he was 
asked a question about President Reagan's nominees, and they 
thought he would be critical of them, and he walked up to the 
microphone and shocked everybody. He said, ``Well, we do not 
need a judge on the Supreme Court, on the Federal Bench that 
does not believe in prayer at football games.'' I mean why does 
anybody care if somebody has a voluntary prayer at a football 
game? Are they going to send in the 82nd Airborne? I mean this 
is something that really you do not have to bow your head. If 
it means something to somebody to have a blessing for the 
senior citizens in Texas, to have a blessing before they have 
their meal, who is concerned about this? Of what great threat 
to liberty is this? They are in a senior citizens center, 
Federal and State money I suppose helped fund it, so now they 
cannot say a blessing? So really I am just confused.
    And these legislation by Senator Allard and Senator Shelby 
represent real frustration with the state of the law. The 
American people ultimately control this country. It is not the 
Federal Courts. They do not get to set policy in America. They 
are required to enforce the constitutional provisions, and I 
think they are out of sync with it really.
    Having said all of that, I am not sure what my next 
question would be.
    [Laughter.]
    Senator Sessions. Why can we not get back to the way we ran 
this country for 150 years? If people should show respect for 
one another's religion, if people continue to be offended, as a 
gentleman was here, by sectarian prayer, although it is not an 
excessively sectarian prayer. Jesus was Jewish and it was 
fundamentally a Jewish prayer. But at any rate, it was a prayer 
that concerned him, and they kept doing it so much that it 
represented a concern in a public event, and it is good to 
listen to your concerns, but if nobody is upset about this, are 
we not creating too much Federal Government influence? Can we 
not draw back and allow people to behave naturally and only 
assert the governmental interest in serious cases? Can you all 
briefly give a comment on that?
    Mr. Garnett. There is a lot to address there, Senator. On 
the question of endorsement though, you raise an important 
point. You ask what can we do? I suggest two things. The first 
would be to remember that as much as we should worry about 
government endorsements that might be coercive of religion, 
there is a flip side to that coin which has come up in several 
cases, and Justice Thomas has been very eloquent about this, 
that you do not want to communicate to children that their 
religious beliefs are disfavored. You do not want to 
communicate to children that the State endorses aggressive 
secularism. Neutrality has to be a two-way street, and I think 
some of the cases you heard about today suggest that citizens 
and particularly children are getting the wrong message from 
government action, so that might be one place to look.
    Another place, and my colleague Professor Munoz has talked 
about this, one problem with the endorsement test and also the 
coercion test is they get judges in this tricky business of 
trying to gauge what is going on in people's psyches, you know, 
do people feel excluded? Do people feel coerced? Would the 
reasonable person perceive an endorsement.
    Senator Sessions. With regard to Judge Moore, they got into 
his head. They tried to figure out what he was intending when 
he put the Ten Commandments there, rather than really precisely 
the impact of a display of the Ten Commandments in a 
courthouse. Excuse me, go ahead. It just makes it complicated 
and difficult.
    Mr. Garnett. One improvement on the doctrine might be--and 
a lot of scholars have tried to make this point--that the Court 
might be better off to look objectively at what the government 
does, rather than at the subjective reactions of various people 
to the government conduct. That might give us brighter lines in 
these areas. How that would play out in Judge Moore's case, I 
am not completely sure, but I do believe that the endorsement 
test, one reason why it has sometimes led us astray is because 
it is not anchored in anything other than subjective reactions 
to government action.
    Senator Sessions. Professor Rogers.
    Ms. Rogers. Thank you. Two things. One is, on the equal 
access point, I think the Court has come to sort of a critical 
mass in saying that equal access is constitutional in the 
schools, and with the Good News Club, they have applied it also 
to community use of government property, which would cover Mr. 
Clark's situation, as I understand it.
    So I think a lot of good could be done right now in the 
wake of the Good News Club case to say, look back at the 
Mergens case, equal access law and Good News, and say, Listen, 
there is basically an equal access principle. It is actually 
not that complicated. If you open up a forum on government 
property to many different groups and have first-come first-
served rules, then you can let religious groups use that space, 
and you just have to be careful that you are not giving it only 
to the Christians or only to the religious groups. That will 
not work.
    But what we say is, we understand that that is not--the law 
understands that that is not government endorsement of religion 
just because it is on government property. That is a fairly 
clear rule, and would curb almost--I have not counted up the 
examples here, but I think quite a number of these would be 
done away with just by clarifying that rule for people who 
administer government property, whether it is school 
superintendents or people who run senior centers.
    So I would say that a lot of progress could be made right 
there.
    Senator Sessions. But you would say then that if the senior 
citizens voted to singing ``You Are My Sunshine,'' and the 
second most popular song they wanted to sing was ``Shall We 
Gather At The River,'' they could not sing--
    Ms. Rogers. No, no, that is fine. They can do whatever they 
want in an equal access situation, and that is precisely why I 
am so supportive of it.
    Senator Sessions. Equal access, let us go back to this. I 
am talking about a group of people that come to that center. 
One of them may be Muslim. One may be Jewish, and 95 may be 
Christian or do not care, and they are happy to sing ``Shall We 
Gather At The River?''
    Ms. Rogers. Thank you for that. That is helpful. What I am 
thinking of is in a senior center--and I have helped somebody 
work on this before--that the senior center that is city-owned 
should essentially form clubs. There would be the club that 
would get together and sing spiritual songs and hear from a 
pastor. There would be another club that might talk about chess 
or they might talk about fishing or something else that is of 
interest to them. But it would be the equal access model 
applied to a community setting, and I think the Good News Club 
makes that possible, that case, and that is an excellent way to 
solve it because then you do not have the government coming in 
and say, that is a little too proselytizing, that is a little 
too sectarian, no. They can do what they want to do, but it is 
not endorsed by the government.
    Senator Sessions. The government just does not need to come 
in and say those things. If that is what they want to sing, let 
them sing it.
    Ms. Rogers. I agree with you on that point.
    Senator Sessions. No. You are saying that you have to have 
separate groups and then they can sing whatever they want to 
sing, and what, if they sit in one corner of the room, they 
have a blessing, and if they do not sit in that corner they 
cannot have a blessing?
    Ms. Rogers. No. I think they should structure it in an 
equal access situation so that the groups have times to meet 
and do what they want to with no government interference.
    Senator Sessions. But you are saying that they have to 
separate themselves unless everybody agrees, and that no 
general public announcement of any gathering at the senior 
center can have any hymn or prayer.
    Ms. Rogers. I would say that the senior--
    Senator Sessions. Any general announcement to the public.
    Ms. Rogers. I would say that the senior center itself, what 
it does as an official duty should not be to promote religion 
or endorse religion. What it should do is say--
    Senator Sessions. I am not talking--excuse me. I do not 
want to argue, but--
    Ms. Rogers. That is okay.
    Senator Sessions. Go ahead. You are doing well and I should 
not interrupt.
    Ms. Rogers. That is all right. What I think would be most 
productive and that I helped somebody encourage this, and I 
believe the system was instituted, was they called all the--the 
officials called everybody together at the senior center and 
said, we have groups that would like to pursue different things 
on senior center property, city-owned property, and we would 
like to give everybody the opportunity to do that, so what we 
are going to do is allow everybody to organize their own groups 
with what they are interested in, whether it is gospel singing 
or fishing or cooking, and we are going to have this room 
available to your clubs on a first-come first-served basis. You 
sign up. You can use the property. In fact, if you get us a 
notice of your meeting, we will put that notice out just like 
we would for the chess club or the fishing club.
    We are not going to say this is something we are endorsing 
or running. This is your club, this is your property. And that 
negates any sense of Government promotion or endorsement of 
religion.
    Senator Sessions. Well, you know, that is just very 
unsatisfactory to those of us in public life. It may be 
theoretically fine with you, but it is not practical in the 
real world. I am just telling you, what people believe they 
have a right to do is somebody says a blessing before they have 
a meal at the senior center, is not an establishment of a 
religion, I don't think. I don't know how we get at this deal.
    Mr. Munoz?
    Mr. Munoz. I think this shows the problem with the 
endorsement test. With the test, as the Supreme Court, as 
Justice Sandra Day O'Connor has interpreted the Constitution, 
you have to have a lawyer present in a senior citizen club to 
explain when and how you can pray. That is where this test 
leads until we get rid of the test. And let me just add the 
Constitution, the First Amendment, says nothing about an 
endorsement of religion. It is not that complicated. The 
Constitution says, ``Congress shall make no law respecting an 
establishment of religion.'' An establishment of religion is 
different from an endorsement of religion. We have replaced the 
Constitution's text with an idea of endorsement which is 
inherently confusing and ambiguous, which leads to litigation, 
lawyer-dominated senior citizen clubs, and general hostility 
towards religion. That is our problem, and until we return to 
the text of the Constitution, all this is going to continue.
    Senator Sessions. Well, I saw the little Muslim girl that 
was so wonderful earlier. You know, if a group of people--I 
believe in my school in the little town I went to in Alabama, 
if their faith called on them to pray two or three times a day 
and they had to do so in a certain fashion, I believe the 
school would have made accommodations to them. I believe they 
would have allowed them to do this. And we go on in a natural, 
commonsensical way like we did for 150 years trying not to 
offend people, to take seriously other people's differing 
views. But I don't think most people are offended if somebody 
has a slightly different theology than they do and they express 
it in a prayer that is different than my theology or something. 
But we are tolerant people.
    Mr. Garnett. Senator, you mentioned your school in Alabama 
and how they would be willing to accommodate. Yet another area 
where the doctrine, the common law could really be improved is 
if everybody realized that it is not an establishment of 
religion to accommodate religion. There are some scholars and 
some Justices who seem to be under the misimpression that if 
you accommodate, you are establishing. And that is certainly 
not the case and I think, again, an area where we could do 
better, and the law would be to make that clear.
    Ms. Rogers. But I would also say that the Court has found 
in the Amos case--and I know Rick is familiar with this case. 
They found that the Title VII accommodation that allows 
churches to hire and fire on the basis of religion, that that 
is appropriate accommodation.
    I would just go back--I actually believe that the 
principles that I described with the senior citizens, as far as 
I know, they were implemented in this one situation because it 
was before the Good News Club. And I remember thinking I think 
I can help someone come up with a policy here that allows 
robust religious expression and is also constitutional. So I 
would disagree or would beg to differ to say that these 
principles aren't practical. I think that there is a lot that 
can be done to help Government officials understand this equal 
access principle and to allow robust religious expression in 
public spaces.
    Senator Sessions. What if you had an agreement at the 
senior citizens center that the 95 people who wanted to sing a 
hymn and say a blessing would get the biggest room when they 
got their meal and the people who didn't want to would be given 
a smaller room?
    Ms. Rogers. That would not be good legal advice, I don't 
think, to give to anybody.
    Senator Sessions. Why not?
    Ms. Rogers. Well, that sends a very strong message about--
    Senator Sessions. That is what you are saying, if you get 
the room--you get the room, you can have a room and ask for it, 
and you can have your religion.
    Ms. Rogers. It sends a strong message to people who are 
given a closet and the other people who are given the main 
auditorium--
    Senator Sessions. Maybe it is a nice room.
    Ms. Rogers. What?
    Senator Sessions. Maybe it is a nicer room.
    Ms. Rogers. You are bringing it up some for me here. But I 
think that it has to be on a first-come, first-served basis. It 
has to be, you know, basically equal kind of settings that they 
would provide, or you are expressing favoritism for perhaps one 
religion over another in that situation, or perhaps religion 
over non-religion.
    Senator Sessions. You give people who need the largest room 
the larger room and the people who need the smaller room with a 
different--
    Ms. Rogers. That might be--I think now we are getting back 
in territory that is safer when you say, well, you only have 12 
people so you don't need it. So it is a non-discriminatory 
reason. I am sorry. I misunderstood you. Then if it is a non-
discriminatory reason, that makes sense. But one of the things 
that I just want to follow up on before we leave that point is 
I really do sincerely believe that to have Government promoting 
religion hurts religion. And one of the things that I 
remember--John Leland, a Baptist minister back in the founding 
days of our country, I think it is important for us to remember 
when we are talking about especially with the faith-based 
initiative, with the Government funding, sending grants and 
contracts to churches. What the Government funds it regulates, 
and this is going to become a situation where churches are 
closely regulated by the state. And not only that, but Leland 
would often recognize that this Government--this religious 
dependence on Government to run its programs ended up 
corrupting religion. And he said in one of the quotes, ``The 
great doctrines of universal depravity, redemption by the blood 
of Christ, regeneration, faith, repentance, and self-denial, 
are seldom preached by these churches that are funded by the 
government. They just are things to them, of course.'' That is 
what he says, these great doctrines become something that 
aren't vital anymore. They just become something that are 
things to them.
    And so I think it is really important to remember, 
especially when we are talking about Government grants and 
contracts with churches, that the Government is going to 
regulate the churches; the Government's funding of them is 
going to create a dependence of the churches on the Government. 
And I believe in the end that creates for us a situation in 
which churches and religion are more creatures of the state 
than creatures of God. And that is a problem.
    Senator Sessions. I am sorry, Mr. Chairman. I went over my 
time.
    Chairman Cornyn. Well, this has been a fascinating 
discussion, and if it were up to me, we could continue for a 
lot longer. I am sure we wouldn't solve all our problems, but 
it has been fascinating and I appreciate the contribution each 
one of you has made.
    What I worry about is that what we are telling people 
across the country is, yes, there are some rules, but if you 
have the time and the money to hire a lawyer to help you figure 
it out and give you legal counsel so you can conform your 
conduct in a way that, yes, you might probably win a legal 
challenge that goes all the way to the United States Supreme 
Court, you might be all right. But if you don't, then the 
easiest thing for you to do is just to leave and vacate this 
public arena where I believe that there are many people who are 
frustrated that the public arena in America and across the 
world today are full of all sorts of messages from sex to 
violence and the like. I know it is a big frustration on the 
part of parents. You can talk about just about anything except 
your faith because of what I view to be somewhat contradictory 
rules that have come out of the United States Supreme Court.
    And I agree with Senator Sessions--I believe it was Senator 
Sessions who said some of the legislation that you have seen 
and that Senator Shelby and others have talked about in terms 
of jurisdiction stripping are a manifestation of the 
frustration that we feel on behalf of our constituents for how 
do we get ourselves out of this box. It is unlikely that the 
members of the United States Supreme Court, once they have 
embraced a test--which is, in my view, wholly made up, but it 
is, nevertheless, their test and they are going to use it every 
time a case goes to the Supreme Court. How do we get ourselves 
back to some sort of practical, predictable understanding of 
what the rules are so that people can understand what is 
required of them and what the rules are and then conform their 
conduct in a way that lets them avoid litigation and yet 
respects their right to express--to speak their religious views 
or faith in a public forum.
    So I would just ask in closing for our legal scholars here 
to continue to think about these issues, and if you have 
anything you would like to share with us by way of suggestions 
or ideas--part of the problem is, of course, because these are 
constitutional tests, it is hard for the legislature to make 
much of a dent in this sort of thing. But maybe there is a role 
you can think of for us to play in trying to find a way out of 
this thicket.
    Senator Sessions. Mr. Chairman?
    Chairman Cornyn. Senator Sessions?
    Senator Sessions. There was one question I meant to ask and 
wanted to ask that was about the Boy Scouts. I was a member of 
the Boy Scouts. And they don't really practice religion, but 
they have certain moral principles and a belief in God. On my 
oath, I will do my duty to God and my country. Obey the Scout 
laws. Help other people at all times. They are getting--what do 
you call it?--hostilized in the public square. So I might do 
that in writing. I don't want to go into any long thing, but if 
any of you had a brief comment, Mr. Garnett or--
    Mr. Garnett. If you are referring to the case out in 
California where the Boy Scouts lost their lease on public land 
because they were deemed to be a religious group, I guess I 
share your reaction to it. It strikes me as a mistaken action. 
The Boy Scouts are a private association that enjoy First 
Amendment rights to express themselves and to embrace the 
messages that they like to. And San Diego is not establishing a 
religion merely by permitting the Boy Scouts to do their thing 
on public land.
    Senator Sessions. And that was the peg they hung it on, 
establishing a religion. I remember, Mr. Chairman, before you 
came to the Senate, not long after I did, the Washington Zoo 
would not allow the Boy Scouts to have a Court of Honor, at the 
Washington, D.C., Zoo because of their affirmation of faith, 
apparently, or maybe their standards of behavior they expected 
of their scoutmasters. But they did it on, I think, separation 
of church and state and backed down after Eagle Scout Senator 
Mike Enzi started up and questioned it and challenged it, and 
they finally retreated. We are off base here somewhere.
    Mr. Munoz, did you want to comment?
    Mr. Munoz. This is the problem, what you are pointing to is 
the problem with the endorsement test, because Government 
cannot endorse religion. Well, if we allow the Boy Scouts who 
promote this moral code to meet on our grounds or if we 
acknowledge the Boy Scouts in some way, someone might think we 
are endorsing religion and, therefore, we need to keep them out 
of the public arena. And that is the logic of the endorsement 
test. And because, look, you can get sued, better just to avoid 
the whole thing, better to keep the Boy Scouts away, and that 
way we won't get sued, and that way we won't face litigation. 
And because it is so easy to sue under these standards and have 
a real case under these standards, that is what leads to 
hostility in the public square, hostility against the Boy 
Scouts, or anyone else who expresses religious sentiment.
    Chairman Cornyn. We will have to end there.
    In closing, I would like to thank all the panelists and the 
Members of the Subcommittee who have been here today, and also 
to thank the Chairman, Chairman Orrin Hatch, for scheduling 
this hearing, and Senator Feingold for his usual cooperation 
and dedication.
    As I stated earlier, we will leave the record open until 
5:00 p.m. next Tuesday, June the 15th, for members to submit 
additional documentation or ask questions. I would also say if 
there is additional written testimony or other things that 
witnesses would like to tender, we will also make those part of 
the record if they are relevant to what we are talking about.
    With that, this hearing of the Senate Subcommittee on the 
Constitution, Civil Rights and Property Rights is adjourned.
    [Whereupon, at 5:24 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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