[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]








                     STATE OF RELIGIOUS LIBERTY IN 
                           THE UNITED STATES

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 10, 2014

                               __________

                           Serial No. 113-75

                               __________

         Printed for the use of the Committee on the Judiciary






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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
MARK AMODEI, Nevada                  JOE GARCIA, Florida
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                    JIM JORDAN, Ohio, Vice-Chairman

STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            JERROLD NADLER, New York
STEVE KING, Iowa                     ROBERT C. ``BOBBY'' SCOTT, 
LOUIE GOHMERT, Texas                 Virginia
RON DeSANTIS, Florida                HENRY C. ``HANK'' JOHNSON, Jr.,
JASON T. SMITH, Missouri               Georgia
                                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel




















                            C O N T E N T S

                              ----------                              

                             JUNE 10, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     5
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     6

                               WITNESSES

Mathew Staver, Dean and Professor of Law, Liberty University 
  School of Law, Founder and Chairman, Liberty Counsel, and 
  Chairman, Liberty Counsel ACTION
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Kimberlee Wood Colby, Director, Center for Law and Religious 
  Freedom, Christian Legal Society
  Oral Testimony.................................................    49
  Prepared Statement.............................................    51
Rev. Barry W. Lynn, Executive Director, Americans United for 
  Separation of Church and State
  Oral Testimony.................................................    77
  Prepared Statement.............................................    79
Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom
  Oral Testimony.................................................    98
  Prepared Statement.............................................   100

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Subcommittee on the Constitution and Civil Justice.............   131
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................   132
Material from the Anti-Defamation League (ADL) submitted by the 
  Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................   134

 
                     STATE OF RELIGIOUS LIBERTY IN 
                           THE UNITED STATES

                              ----------                              


                         TUESDAY, JUNE 10, 2014

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 3:10 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Trent 
Franks (Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Goodlatte, Chabot, Forbes, 
King, Gohmert, DeSantis, Smith, Cohen, Conyers, Nadler, Scott, 
Johnson, and Deutch.
    Staff Present: (Majority) John Coleman, Counsel; Tricia 
White, Clerk; (Minority) James Park, Minority Counsel; and 
Veronica Eligan, Professional Staff Member.
    Mr. Franks. The Subcommittee on the Constitution and Civil 
Justice will come to order. Without objection, the Chair is 
authorized to declare recesses of the Committee at any time.
    Good afternoon, ladies and gentlemen, and thank you for all 
being here today. Today, the Subcommittee will examine the 
state of religious liberty in America. This continues a 
tradition of this Subcommittee holding a hearing on this topic 
each Congress. And I will now recognize myself for 5 minutes 
for an opening statement.
    Thomas Jefferson once said, ``The constitutional freedom of 
religion is the most inalienable and sacred of all human 
rights.'' Religious liberty is our first freedom. It is the 
cornerstone of all other human freedoms. The Bill of Rights 
passed by the first Congress included protections for religious 
freedom because without religious liberty and freedom of 
conscience all other liberties cease to exist. Indeed, 
religious liberty is the wellspring of our other liberties and 
the defining statement of freedom in America.
    This belief is something that has set America apart from 
all other nations since the Declaration of Independence 
declared nearly 240 years ago that we hold it a self-evident 
truth that all men are created equal.
    Ladies and gentlemen, the foundational and quintessential 
premise of America is that we are all created children of God 
equal in his sight and that we are endowed by our creator with 
the unalienable rights of life, liberty, and the pursuit of 
happiness. America's founding premise is itself an intrinsic 
expression of religious conviction.
    Consequently, the Obama administration's flippant 
willingness to fundamentally abrogate America's priceless 
religious freedom in the name of leftist social engineering is 
of grave concern to me and should be to all of us.
    The most egregious examples from the administration include 
their concerted effort to force religious minorities, like the 
Little Sisters of the Poor, to purchase abortifacient drugs and 
contraceptives. With breathtaking arrogance, this 
administration also told the Supreme Court 2 years ago in the 
Tabor case that government should have a say in deciding who 
could be a pastor, priest, or rabbi--in short, who could preach 
and teach religion. This was unanimously rejected by the 
Supreme Court as untenable and extreme.
    This administration seems to casually ignore the historical 
fact that religious liberty involves much more than freedom of 
worship alone and that fundamental rights of free speech and 
the free exercise of religion do not stop at the exit door of 
your local house of worship, but indeed extend to every other 
area of life. The so-called anti-discrimination policies that 
make no exception for religious beliefs threaten religious 
liberty. For most religious groups, public service is an 
essential element of their religious beliefs. Religious groups 
in America establish hospitals, operate homeless shelters, 
provide counseling services, and run agencies for adoption and 
foster care for children who might otherwise have no one else 
in the world to help them.
    Those who refuse to respect the public component of 
religious liberty and fail to accommodate religion in our 
generally applicable laws are putting many innocent people, as 
well as the religious freedom that undergirds America, in grave 
danger. Oftentimes religious freedom is suppressed in the name 
of ``a strict wall of separation between church and state.''
    Now, while that phrase did appear prominently in the Soviet 
constitution, it appears nowhere in the United States 
Constitution, and the profound historical misrepresentation of 
that phrase by the secular left leaves me without adequate 
expression.
    Some time ago a Marxist economist from China was coming to 
the end of a Fulbright fellowship in Boston. When asked if he 
had learned anything that was surprising or unexpected, without 
hesitation he said, ``Yeah. I had no idea how critical religion 
is to the functioning of democracy.''
    Ladies and gentlemen, it bears careful reflection that many 
men and women have died in darkness so that Americans could 
walk in the light of religious freedom. They gave all they had 
because they knew that religious freedom is critical to the 
survival of all other freedoms. It is so very important for us 
now and always to resist this ubiquitous effort by the secular 
left to do away with religious freedom in America as they have 
successfully done in so many other parts of the world.
    In America, every individual has the right to religious 
freedom and First Amendment expression so long as they do not 
deny the constitutional rights of another. True tolerance does 
not mean that we have no differences. It means that we are 
obligated as members of the human family to be kind and 
respectful to each other in spite of those differences, 
religious or otherwise.
    I would like to again thank our witnesses for being here, 
and I look forward to hearing from them about some of the 
unique challenges now facing this cornerstone of freedom in the 
United States. And I would now yield to the Ranking Member, Mr. 
Cohen, for an opening statement.
    Mr. Cohen. Thank you, Mr. Chair.
    Religious freedom is indeed a fundamental pillar of 
American life. Whatever one's religious belief, our 
Constitution enshrines the notion that the government remain 
neutral with respect to religious belief, neither favoring one 
religion over others, nor favoring religious beliefs over 
nonbelief.
    Our constitutional statutes also require that the 
government not substantially burden the free exercise of 
religion absent a compelling interest and a less burdensome 
means of meeting that interest. In expounding upon the meaning 
of these constitutional provisions, Thomas Jefferson wrote in a 
letter to the Danbury Baptist Association in 1802, ``I 
contemplate with sovereign reverence that act of the whole 
American people which declared that their legislature should, 
'make no law respecting an establishment of religion or 
prohibiting the free exercise thereof,' thus building a wall of 
separation between church and state.''
    Jefferson was a deist who strongly believed in each man and 
woman, at least White men and women, or at least White men, 
having certain rights, and inscribed at the Jefferson monument 
is a saying of his that says, ``I swear upon the altar of God 
eternal hostility over all forms of hostility over the mind of 
man.'' Indeed men should be able to practice and women practice 
religion, but not have any thoughts superimposed upon them.
    You know, when our country started, it's a great country, 
but we really didn't get started on the idea that all men are 
created equal because we had slavery until President Lincoln in 
the Emancipation Proclamation and then the 13th Amendment said 
no more. Up to then, if you were black, you weren't created 
equal, and if you were a woman, you really weren't either 
because you didn't have a right to vote really in this country 
till about the 1920's. Took a long way for our country to 
evolve, and we are doing the same thing with religious freedom. 
All of these things in the Constitution, they're wonderful, but 
they're evolving, and we learn as things change.
    Some religions might say, or people say, because of their 
religion, they have to have peyote on a regular basis, and you 
have to figure how we should deal with that. And some religions 
might even think that being gay is something that they should 
be discriminatory against and that that's an evil, but our 
society is evolving on people's sexual orientations, too.
    Religious freedom is very fundamental and it's protected in 
the First Amendment of the Bill of Rights, but Jefferson talked 
about constitutions not being sanctimonious documents, but like 
a child who grows and changes his clothes with times as it gets 
larger and grows and matures, that constitution should change 
as times change and people look upon it. So we can't just say 
the Founding Fathers said this, and then there were 10 
commandments, and thou shalt honor thy God and mother and 
father and not commit adultery and not kill and all those 
things, just maybe a few others come along.
    It is also why I was the sponsor, all these things, I was 
the sponsor of Tennessee's Religious Freedom Restoration Act 
back in January 1998, so this is nothing knew to me, when I was 
a senator. Like the Federal RFRA, the Tennessee RFRA protects 
religious liberty by ensuring that any government action that 
substantially burdens the free exercise of religion is 
prohibited unless there is a compelling state interest.
    Tennessee's RFRA, like the Federal RFRA, seeks to strike a 
balance between the fundamental right to practice one's 
religion free from government interference and the ability of 
the government to perform its basic duties, including the 
protection of public health and safety and fighting 
discrimination. So if a religious groups says, we can't do 
certain things for our employees because of our religion, there 
has to be a compelling interest to show the difference. Or 
maybe something about gays.
    Any discussion of religious liberty must also include a 
discussion of the threats, both government and nongovernmental, 
to members of minority religions. As Reverend Barry Lynn, one 
of out witnesses, notes in his written testimony, a Muslim 
congregation in Murfreesboro, Tennessee, faced intimidation and 
threats of violence from the local community when it attempted 
to construct a new mosque. While the mosque ultimately was 
built, the legal fight over its construction ended only 
recently at a great cost to the congregation for a fight that 
it should never have had to fight. And we have things in New 
York like that, too, with a mosque and a community center not 
far from 9/11.
    Unfortunately, this is only one of many instances that 
reminds me the Bill of Rights' fundamental purpose is to 
protect the minority, the unpopular, and the nonmainstream from 
majority tyranny. When one's right to free exercise of religion 
ends and a majority tyranny begins will be the crux of our 
discussion today.
    Seven years ago this Committee heard from Monica Goodling, 
who at the time had just resigned as the Justice Department 
official, I think, dealing with personnel matters, concerning 
hiring there during the Bush administration. Ms. Goodling was a 
graduate of Regent University School of Law. According to its 
Web site, it seeks to provide legal training ``with the added 
benefit of a Christian perspective through which to view the 
law,'' something I don't really know what that perspective 
might be. What's different from a Christian perspective and a 
Judeo-Christian perspective or a conservative perspective or a 
liberal perspective or an American perspective?
    But there was evidence at the time Ms. Goodling and others 
screened job candidates for career positions at the Justice 
Department based on their religious and partisan affiliations. 
She denied it when asked, but it stands to reason religious 
belief could have played a definite role in her hiring 
policies. A religious litmus test for public office or for 
career public service positions has no place in a society that 
values religious liberty.
    More broadly, attempts to remake our Nation's longstanding 
political and legal culture so as to give already dominant 
religious groups more of a coercive power of government must be 
confronted, for if such attempts are successful the outcome 
would present a threat to a free society and ordered liberty 
and a government that can fundamentally provide a system, a 
network of systems that protects its citizens through health 
and welfare and other bases.
    I look forward to our discussion and appreciate the 
Constitution.
    Mr. Franks. And I thank the gentleman.
    And I would now yield to the Ranking Member of the 
Committee, Mr. Conyers from Michigan, for his opening 
statement.
    Mr. Conyers. Thank you, Chairman Franks.
    Members of the Committee and our distinguished witnesses, 
religious freedom was one of the core principles upon which our 
Nation was founded. The First Amendment protects this 
fundamental freedom through two prohibitions: The Establishment 
Clause prohibits the Federal Government from issuing a law 
respecting the establishment of religion and the Free Exercise 
Clause prohibits the government from affecting the free 
exercise thereof. And so when discussing the government's 
compliance with these prohibitions, we should keep in mind 
several considerations.
    To begin with, the real threat to religious liberty is 
continuing religious bias or intolerance against the members of 
minority religions. For example, the American Muslim 
communities across the United States since September 11, 2001, 
have been targets of often hostile communities and sometimes 
even government actions. There have been numerous well-founded 
complaints of religious profiling by Federal, State, and local 
law enforcement agencies. In fact, bills have been introduced 
in Congress as well as in various State legislatures targeting 
Islam. It was recently reported that the Transportation 
Security Agency is using a behavioral detection program that 
appears to focus on the race, ethnicity, and religion of 
passengers.
    As many of you know, I represent Detroit, the home of one 
of America's largest Muslim communities, so I'm particularly 
disheartened by the overt challenges these communities face. 
Targeting American Muslims for scrutiny based on their religion 
violates the core principles of religious freedom and equal 
protection under the law. All Americans, regardless of their 
religious beliefs, should know that their government will lead 
the effort in fostering an open climate of understanding and 
cooperation.
    Yet, in the name of religious freedom, we cannot undermine 
the government's fundamental role with respect to protecting 
public health and ensuring equal treatment under the law. 
Currently pending before the United States Supreme Court are 
two cases, the Sebelius v. Hobby Lobby Stores and Conestoga 
Wood Specialties v. Sebelius, that will hopefully clarify this 
issue. The issue in those cases is whether the government can 
require for-profit corporations that provide group health plans 
for their employees to provide female employees with plans that 
cover birth control and other contraceptive services as 
required by the Affordable Care Act, notwithstanding the 
religious objections of the corporation's owners to 
contraceptives.
    Along with 90 of my colleagues in the House, I filed an 
amicus brief in these cases disputing the claim that corporate 
plaintiffs are persons for the purposes of the Free Exercise 
Clause. Corporations are not people. And even if they are 
capable of having religious beliefs, these corporations aren't 
entitled to relief under the Religious Freedom Restoration Act. 
Moreover, the Affordable Care Act's mandate, we argue, serves 
two compelling governmental interests--namely, the protection 
of public health and welfare and the promotion of gender 
equality--that outweigh whatever attenuated burden the mandate 
might place on the corporation's free exercise of rights.
    And finally, as even some of the majority witnesses 
acknowledge, the Obama administration's enforcement efforts 
with regard to protecting religious freedom in the workplace 
and elsewhere are to be commended. On various fronts, the 
administration, to me, has striven to take a balanced approach 
to this issue. For example, it added a religious employer 
exemption to the HHS contraceptive mandate in response to 
objections from religious employers. These efforts ensure that 
America continues to foster a safe and welcoming environment 
for all religious practices and communities without sacrificing 
our other freedoms and needs.
    And I thank the Chair for allowing me to conclude this 
statement. I yield back.
    Mr. Franks. And I thank the gentleman.
    And I now yield to the Chairman of the Judiciary Committee, 
Mr. Goodlatte from Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    The religion clauses of the First Amendment of the United 
States Constitution state, ``Congress shall make no laws 
respecting an establishment of religion or prohibiting the free 
exercise thereof.'' Since the birth of our Nation, the central 
question regarding the religious liberty has been the degree to 
which religion and government can coexist.
    Indeed, the Founding Fathers feared the effect of 
government on the free exercise of religion. In a letter dated 
June 12, 1812, to Benjamin Rush, John Adams stated that 
``nothing is more dreaded than the national government meddling 
with religion.'' This dread has resurfaced amidst the current 
administration's policies that ignore and are often hostile to 
the religious protections afforded by our Constitution.
    Many regulations fail to accommodate Americans' religious 
beliefs. Others seek to single out religion for adverse 
treatment. From the HHS mandate to the infringement on the 
freedom of churches and other religious groups to choose their 
ministers, Americans' religious liberties seem to be under 
constant attack today.
    In an effort to reaffirm the protections provided by the 
First Amendment, I supported the bipartisan effort to pass the 
Religious Freedom Restoration Act. The Federal Government must 
provide religious accommodation in our laws, and any laws 
passed that infringe upon religious freedom must be subject to 
the strictest scrutiny in our courts. My hope today is that 
this hearing will explore whether our Federal Government is 
complying with the constitutional and statutory protections 
afforded to all faiths.
    And while religious liberty remains threatened, I am 
nevertheless encouraged by recent Supreme Court decisions that 
safeguard it. Last month, for example, the Supreme Court upheld 
legislative prayer in the May 5, 2014 decision Town of Greece 
v. Galloway. The court held that a municipality did not violate 
the establishment clause when it opened its meetings with 
prayer consistent with the traditions of the United States. I 
am glad that the long-held tradition of prayer remains ever 
strong in our State and local governments, as well as in 
Congress.
    In 2012, the Justices of the Supreme Court unanimously 
rejected the Federal Government's argument in Hosanna-Tabor. 
Astonishingly, the administration's lawyers argued in that case 
that the First Amendment had little application to the 
employment relationship between a church and its ministers. The 
court stated that requiring a church to accept or retain an 
unwanted minister or punishing a church for failing to do so 
intrudes upon more than a mere employment decision. The court 
described the administration lawyer's position as extreme. I 
hope that the Supreme Court will continue to protect religious 
liberty in the future, including later this month when it 
issues its opinion in the HHS mandate case.
    I want to thank all of our witnesses for coming today to 
testify, and I extend a special welcome to a constituent of 
mine, Mat Staver, who is coming from Lynchburg, Virginia, today 
to testify. As a founding member and chairman of Liberty 
Counsel, Mat is a passionate defender of the Constitution and 
religious liberty. He is also working to educate future legal 
minds as dean of Liberty University's law school.
    Welcome, Mat. I look forward to your testimony today and to 
that of all of our witnesses.
    And, Mr. Chairman, thank you, and I yield back my time.
    Mr. Franks. And I thank the gentleman.
    And without objections, other Members' opening statements 
will be made part of the record.
    I will now introduce our witnesses. Our first witness is 
Mathew Staver, dean of Liberty University School of Law. In 
1989, Dean Staver became the founder, president, and general 
counsel of Liberty Counsel and currently serves as chairman of 
the board. Dean Staver has authored more than 10 books, written 
several hundred articles on religious freedom and 
constitutional law, and has published 10 law review and journal 
articles. In addition to writing numerous appellate briefs, he 
has argued twice before the United States Supreme Court.
    And welcome, Mr. Staver.
    Our second witness is Kim Colby, senior counsel for the 
Christian Legal Society's Center for Law and Religious Freedom, 
where she worked for over 30 years to protect students' rights 
to meet for religious speech on college campuses. Ms. Colby has 
represented religious groups in several appellate cases, 
including two cases heard by the United States Supreme Court. 
She has filed numerous amicus briefs in State and Federal 
courts.
    And we welcome you, Ms. Colby.
    Our third witness is Reverend Barry Lynn, executive 
director of Americans United for Separation of Church and 
State. In addition to his work as an activist and lawyer in the 
civil liberties field, Reverend Lynn is an ordained minister in 
the United Church of Christ. He appears frequently on 
television and radio broadcasts to discuss religious liberty 
issues. He has had essays published in outlets such as USA 
Today and The Wall Street Journal. In 2006, he authored the 
book ``Piety & Politics: The Right-Wing Assault on Religious 
Freedom.''
    And we welcome you, sir.
    Our fourth witness is Greg Baylor, senior counsel with 
Alliance Defending Freedom. Mr. Baylor litigates cases to 
protect the rights of religious students, faculty, and staff at 
public colleges and universities across the Nation. Prior to 
joining Alliance Defending Freedom in 2009, he served as 
director with the Christian Legal Society Center for Law and 
Religious Freedom, where he defended religious liberty since 
1994.
    And we welcome you, sir.
    Now, each of the witnesses' written statements will be 
entered into the record in its entirety, and I would ask that 
each witness summarize his or her testimony in 5 minutes or 
less. And to help you stay within that time, there is a timing 
light in front of you. The light will switch from green to 
yellow indicating that you have 1 minute to conclude your 
testimony. When the light turns red, it indicates that the 
witness' 5 minutes have expired.
    And before I recognize the witnesses, it is the tradition 
of the Subcommittee that they be sworn. So if you will please 
stand.
    [Witnesses sworn.]
    Mr. Franks. Please be seated.
    Let the record reflect that the witnesses answered in the 
affirmative. And I would now recognize our first witness, Mr. 
Staver.
    Please, sir, turn on your microphone before beginning.

TESTIMONY OF MATHEW STAVER, DEAN AND PROFESSOR OF LAW, LIBERTY 
    UNIVERSITY SCHOOL OF LAW, FOUNDER AND CHAIRMAN, LIBERTY 
         COUNSEL, AND CHAIRMAN, LIBERTY COUNSEL ACTION

    Mr. Staver. Thank you, Congressman Franks, Members of the 
Committee, and it's a pleasure to be here with my own Member of 
Congress, Congressman Goodlatte. Thank you for inviting me and 
for this important topic that we're going to be discussing.
    The threat to religious freedom has reached unprecedented 
levels. It has reached a point where religious freedom is now 
being coerced to go against the core values of those who hold 
these sincerely held religious beliefs. My testimony will focus 
on two primary issues where the threat has reached a critical 
point. These involve conflicts between religious freedom and, 
number one, the sanctity of human life and, number two, human 
sexuality and marriage.
    The Obamacare law that was passed in 2010 has a direct 
collision with religious freedom of unprecedented levels, both 
with regards to the rights of business owners in the HHS 
mandate that was promulgated under it and with regards to the 
individual mandate as well. Religious freedom with regards to 
licensed mental health counselors, minors, and their parents 
are also under unprecedented assault. In two states, California 
and New Jersey, laws have been passed that prohibit counselors 
from offering and minor clients and the parents from receiving 
any counsel whatsoever that would seek to reduce or eliminate 
same-sex sexual attractions, behavior, or identity.
    The freedom of religious business owners with regards to 
their rights and operations are also under a threat with 
regards to the issues of marriage and human sexuality. First 
with regards to Obamacare. Liberty Counsel filed the first 
private lawsuit against Obamacare on behalf of Liberty 
University and some private individuals on the same day that it 
was signed into law by President Obama. In this particular 
lawsuit, we claim a violation of religious freedom under the 
First Amendment and the Religious Freedom Restoration Act.
    There are two different violation under that. First of all, 
there is the individual mandate that doesn't get a lot of 
press, but under section 1303, individuals who are either in an 
exchange or in any insurance that offer any kind of elective 
abortion are forced to provide a separate payment in addition 
to their premium that goes into a segregated fund, the purpose 
of which is only to fund abortion. This breaks precedent with 
longstanding congressional Federal policy with regards to 
Federal funding or any other kind of funding of abortion.
    The other is with regards to the employer mandate. Under 
the minimum essential coverage, the HHS mandate decided that, 
as part of that, employers were to be providing not only 
contraception, but abortifacients and abortion-inducing drugs 
and devices. With regards to Liberty University, Hobby Lobby, 
Conestoga Woods, or Little Sisters of the Poor, whoever it 
might be, failure to abide by that violation of their belief 
that God is the creator and that life begins at conception and 
therefore they are forced to take innocent human life would 
result in a penalty of $2,500 per employee per year. But in 
addition to that, under the Department of Labor, those fines go 
up to $15,000 per employee per day. It is designed to literally 
crush an employer who disagrees with that abortion drug and 
device mandate.
    With regards to the other challenges involving human 
sexuality and marriage, in California, the first State to pass 
a law of unprecedented magnitude, even said so by the 
California counseling associations, is that no counselor or 
client may receive or offer any counsel whatsoever, under any 
circumstances, to reduce or eliminate unwanted same-sex 
attractions, behavior, or identity. That goes against the 
individual client's right of self-autonomy. No other area of 
counseling has been affected by this.
    After California filed that particular bill and it was 
passed, New Jersey also passed a similar law. Both of those are 
currently in litigation. But this cuts to the very core of what 
a counselor is able to provide a client seeking information and 
what a client is able to receive. It's unprecedented because 
there's no other area of counseling that falls anywhere in that 
kind of restrictive mandate.
    In addition to the issues of the counseling associations 
and the individuals who are affected by it, there are also 
situations involving marriage and the human sexuality laws. In 
New Mexico we know of the case--obviously, that has been 
recently denied cert by the United States Supreme Court--
involving the wedding photographer. That particular individual 
is not discriminating against anyone because of their sexual 
orientation. In fact, clearly said so. What she does say is 
that she does not want to participate in an event. She doesn't 
discriminate against people because they're caucasian, but if 
they put on a robe and start involving a KKK rally, she doesn't 
want to participate in photographing that event because it 
collides with her religious beliefs. But in this particular 
case, she is forced to either give up her wedding business or 
collide with her religious beliefs. That and many other 
instances can be listed ad nauseam with regards to the 
unprecedented clashes that we're facing today with respect to 
religious freedom.
    Thank your for addressing this issue. Religious freedom is 
our first freedom. It's a freedom, I think, that is critically 
under assault.
    [The prepared statement of Mr. Staver follows:]



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                               __________

    Mr. Franks. Thank you, Mr. Staver.
    And I would now recognize our second witness, Ms. Colby.
    Please turn on your microphone.

TESTIMONY OF KIMBERLEE WOOD COLBY, DIRECTOR, CENTER FOR LAW AND 
           RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY

    Ms. Colby. Chairman Franks, Ranking Member Cohen, and 
Members of the Subcommittee, thank you for the opportunity to 
participate in this important hearing on the state of American 
religious liberty.
    The Christian Legal Society has long believed that a free 
society prospers only when the First Amendment rights of all 
Americans are protected regardless of the current popularity of 
their speech or religious beliefs. Therefore, CLS supported 
passage of the Religious Freedom Restoration Act to protect the 
religious liberty of all Americans.
    Congress' passage of the Religious Freedom Restoration Act 
was a singular achievement. Senator Edward Kennedy and Senator 
Orrin Hatch led the bipartisan effort to pass RFRA in the 
Senate 97-3. The House passed RFRA by unanimous voice vote, and 
President Clinton signed RFRA into law. For two decades, RFRA 
has stood as the preeminent Federal safeguard of all Americans' 
religious liberty, ensuring a level playing field for Americans 
of all faiths.
    Yet, recently RFRA has been targeted by some who would deny 
robust protection to religious liberty. This hearing is timely 
because in a few weeks Congress may face calls to weaken RFRA 
after the Supreme Court decides the HHS mandate cases. But for 
several reasons such a threat to religious liberty--weakening 
RFRA--should be rejected.
    First, RFRA creates a level playing field for all Americans 
by putting minority faiths on an equal footing with any 
majority faith. Without RFRA, a minority faith would need to 
seek a statutory exemption every time Congress considered a law 
that might unintentionally infringe on religious practices.
    Second, RFRA gives citizens needed leverage in dealing with 
government officials. By requiring government officials to 
justify their unwillingness to accommodate citizens' religious 
exercise, RFRA enhances government's accountability.
    Third, RFRA ensures religious diversity in America and 
reduces conflict along religious lines. Such conflict is 
unnecessary when everyone's religious liberty is guaranteed.
    Fourth, RFRA does not predetermine the outcome of any case. 
Instead, RFRA implements a sensible balancing test, a test 
approved unanimously by the Supreme Court 8 years ago, and the 
government continues to win its fair share of RFRA cases.
    Fifth, RFRA reinforces America's commitment to limited 
government and pluralism. RFRA reminds us that America's 
government is a limited government that defers to its citizens' 
religious liberty. In RFRA, Congress recommitted the Nation to 
the foundational principle that American citizens have the God-
given right to live peaceably and undisturbed according to 
their religious beliefs.
    Now, let me turn briefly to a second threat to religious 
liberty, the ongoing effort to exclude religious voices from 
the public square. One example of this threat is the exclusion 
of religious student groups from college campuses because they 
require their leaders to share the groups' religious beliefs. 
Obviously, it is basic religious liberty, not discrimination, 
for a religious group to require its leaders to share its 
religious beliefs. But at one university, administrators told a 
Christian student group that it could remain a recognized 
student organization only if it deleted five words from its 
constitution: personal commitment to Jesus Christ. The students 
left rather than recant. In total, 14 religious groups left 
that campus rather than forfeit their religious liberty.
    The freedom of religion must not become the freedom to 
recant. As Professor Douglas Laycock recently warned, and I'm 
quoting, ``For the first time in nearly 300 years important 
forces in American society are questioning the free exercise of 
religion in principle, suggesting that free exercise of 
religion may be a bad idea, or at least, a right to be 
minimized,'' end quote.
    Religious liberty is America's most distinctive 
contribution to humankind, but religious liberty is fragile, 
too easily taken for granted, and too often neglected. 
Religious liberty is a great gift, a gift we are in grave 
danger of squandering. Thank you.
    [The prepared statement of Ms. Colby follows:]



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                               __________

    Mr. Franks. Thank you, Ms. Colby.
    And I now recognize Reverend Lynn.

TESTIMONY OF REV. BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS 
           UNITED FOR SEPARATION OF CHURCH AND STATE

    Rev. Lynn. Thank you very much.
    This panel certainly represents the two major world views 
about the state of religious freedom in America. Mine is this. 
Those in the majority faith, Christians like myself, are not 
the ones who suffer significant threats to their religious 
liberty. They have no serious impediments in believing, 
worshipping, obtaining taxpayer-supported grants, generally 
doing whatever they deem appropriate. This doesn't mean that 
there are no occasional errors made by government officials 
that need correction, but a few anecdotes do not make a war on 
Christianity.
    There are, sadly, many efforts to regulate and relegate 
religious minorities and nontheists to a second-class status in 
parts of the country. They range from efforts to block 
construction of mosques to impeding high school students from 
forming nontheistic clubs where existing religious clubs are 
being permitted as required by Federal law.
    Ironically, the single greatest threat to religious freedom 
comes from a radical redefinition of the idea itself. Religious 
freedom does not mean what many of my copanelists assert, it 
does not mean that for-profit companies that sell wind chimes 
or wood cabinets can trump the moral and medical decisions of 
women employees who would choose contraceptive services that 
their corporate owners would deny them in insurance coverage. 
It does not mean that a university must provide funds to school 
clubs that will not admit gay and lesbian students. It does not 
mean that religious groups seeking government grants and 
contracts should be allowed to discriminate on the basis of 
religion in hiring people for those State or federally funded 
positions.
    There are legitimate instances when religious 
accommodations and exceptions need to be made; however, the 
government need not accede to every religious demand for an 
exception to a law that applies to everyone else. Such reaction 
would court anarchy.
    At first, the government's entitled to ask how substantial 
a burden is being placed on the religious person. Regulations 
issued under the Affordable Care Act, for example, exempt many 
religiously affiliated institutions from covering employee or 
student contraceptive services in their insurance plans. If a 
college or a hospital objects, it signs a 635-word document so 
indicating and mails it to the government, making the 
government then responsible for locating third-party birth 
control coverage at no cost.
    I found it absurd when Notre Dame University now claims it 
has a religious right to refuse even to opt out by signing this 
form and dropping it in a mailbox. Such a trivial action cannot 
seriously be construed under law as any kind of burden on 
religious practice. Until Judge Richard Posner rejected its 
claim, however, the three women graduate students Americans 
United represents at Notre Dame could neither get coverage 
through their university nor from a third-party insurer under 
the rules, and that is not a speculative or attenuated burden 
on them.
    Even if the burden on religion is not ephemeral, 
governments have a responsibility to assess the damage to third 
parties caused by any special exception. If a recently proposed 
Kansas statute had been enacted, one of its clear consequences 
would have been to allow hotel operators who object to marriage 
equality, even on idiosyncratic religious grounds, to refuse to 
rent to a gay couple, not only depriving those persons of the 
room they desire, but offering a direct and offensive insult to 
their very dignity as human beings. When a religiously 
affiliated entity cites Christian scripture to justify unequal 
payments to male and female employees there is a clear, easily 
measured downside for those women.
    Some accommodations, of course, do not impinge on the 
rights of others. Three of us here today have filed friend of 
the court briefs in a Supreme Court case where a Muslim prison 
inmate was unfairly told he could not grow a short beard 
consistent with his religious obligations. Facial hair on 
person A does not affect person B. Allowing a same-gender 
couple to marry cannot conceivably offend the religious liberty 
of a person across town who doesn't even know that couple 
exists.
    I think the Framers of the Constitution would be appalled 
at the radical revisionism of the First Amendment being 
advocated by some. More importantly, I think the America of the 
future will look askance at efforts to elevate majority faiths 
or subject not so traditional believers to the status of an 
orphan class to be denied genuinely equal treatment in this 
diverse country.
    In that 5-4 decision in the Supreme Court's recent Town of 
Greece case, which came dangerously close to embracing the 
concept of majority rule in legislative prayer practices, I 
noted on Fox News' ``The Kelly File'' five members of the court 
seem to be running counter to the entire culture of the United 
States where we try to be more sensitive to the diversity of 
religion, the diversity of belief.
    Where real assaults and religious freedom occur, they 
should be condemned. Where a claimed defense is really a 
special privilege operating to the detriment of others, it 
should simply be rejected.
    Thank you, Mr. Chairman.
    [The prepared statement of Rev. Lynn follows:]



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                               __________

    Mr. Franks. Thank you, sir.
    And I would now recognize our fourth and final witness, Mr. 
Baylor.

   TESTIMONY OF GREGORY S. BAYLOR, SENIOR COUNSEL, ALLIANCE 
                       DEFENDING FREEDOM

    Mr. Baylor. Thank you, Mr. Franks.
    My name is Gregory Baylor, and I serve as senior counsel 
with Alliance Defending Freedom, a non profit legal 
organization that advocates for religious liberty, the sanctity 
of life, and marriage and the family through strategy, 
training, funding, and litigation. I appreciate the opportunity 
to testify today regarding the state of religious liberty in 
the United States.
    Americans of all faiths have reason to be concerned about 
the current administration's religious liberty record. All too 
often it has taken unnecessarily extreme positions designed to 
dramatically decrease religious freedom. I'll mention three 
examples. First, the promulgation and legal defense of the HHS 
contraceptive mandate. Second, the unsuccessful attempt to 
eliminate the Religion Clauses ministerial exception. And 
third, the NLRB's intrusion into the internal affairs of our 
Nation's religious colleges and universities.
    Regarding the HHS mandate, the administration didn't have 
to require employers to pay for contraception and 
abortifacients. Nothing in the Affordable Care Act required it 
to do so. But it went ahead anyway, despite well-known 
religious concerns that many Americans have about contraception 
and abortion.
    Second, the administration adopted a remarkably narrow 
religious exemption from the mandate. HHS could have exempted 
all conscientious objectors. It could have even exempted all 
religious employers. But again, HHS made a choice, a choice 
that damaged religious liberty. It adopted a religious 
exemption so narrow that even Jesus and Mother Teresa would not 
qualify. The exemption excluded and continues to exclude to 
this day the vast majority of religious educational 
institutions, social service agencies, and other nonchurch 
religious organizations, many of which have just as strong 
views on these issues as churches do.
    Third, they went ahead with its sham accommodation of 
nonexempt religious employers from the mandate, even though the 
vast majority of objecting organizations informed the 
administration during the comment period that the so-called 
accommodation did not satisfy their moral concerns.
    Now, the administration's conduct in the defense of the 
civil rights lawsuits challenging the mandate has been no 
better. First, it has argued that businesses and their family 
owners cannot exercise religion in the marketplace. Second, it 
has shown a disturbing willingness to second guess and even 
discredit the religiously based moral assessments of 
individuals and organizations that cannot, in good conscience, 
comply with the mandate. Third, in an effort to distort and 
dilute the Religious Freedom Restoration Act, the 
administration has essentially argued that religious claimants 
may not prevail whenever the interests of third parties are 
somehow implicated. Fourth, the government has more recently 
remarkably argued that the imposition of massive financial 
penalties does not count as a substantial burden under the 
Religious Freedom Restoration Act.
    The administration also took an extreme and potentially 
damaging position in the 2012 Hosanna-Tabor case, which has 
been mentioned previously. It argued that religious entities, 
churches, have no right under the Religion Clauses to choose 
their own ministers without governmental interference. Now, the 
lower Federal courts have for decades acknowledged that both 
the Free Exercise and Establishment Clauses of the First 
Amendment keep the government out of a church's relationship 
with its ministers. The EEOC itself had accepted the existence 
of this ministerial exception in its compliance manual and in 
previous lawsuits.
    Now, to be sure, reasonable minds can disagree about who 
counts as a minister for purposes of the doctrine, and that's 
what the Hosanna-Tabor case was about until the Obama 
administration filed its brief at the Supreme Court. Instead of 
continuing to argue more conventionally that the plaintiff in 
question was not a minister, it instead attacked the very 
existence of the ministerial exception. Demonstrating the 
extreme nature of this position, a unanimous Supreme Court 
reaffirmed the doctrine and protected the church from unwanted 
governmental intrusion.
    Finally, the National Labor Relations Board continues its 
quest to assert jurisdiction over religious institutions of 
higher education. It does so despite the clear teachings of the 
Supreme Court in the 1979 case NLRB v. Catholic Bishop. It has 
arrogated to itself the power to examine and assess how 
religious a school is, denying constitutional protection to 
those schools that are not religious enough for its taste. The 
board has ignored multiple D.C. Circuit opinions instructing it 
to respect religious liberty in administering the National 
Labor Relations Act.
    In conclusion, all Americans who love our first freedom 
ought to be alarmed at the administration's willingness to 
undermine that fundamental right.
    Thank you again for the opportunity to testify, and I look 
forward to addressing any questions that Committee Members 
might have.
    [The prepared statement of Mr. Baylor follows:]



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                               __________

    Mr. Franks. I would like to thank all of the witnesses for 
their testimony. And we will now proceed under the 5-minute 
rule with questions. I will begin by recognizing myself for 5 
minutes.
    And, Dean Staver, I'll begin with you, sir. Regarding the 
HHS mandate under Obamacare, the main focus here has been on 
the employer mandate, but you also referenced a similar threat 
to religious freedom under the individual mandate, and I wonder 
if you could further address that and clarify that for us.
    Mr. Staver. Yes, Mr. Chairman. It doesn't get a lot of 
attention in the media. The employer mandate is the primary one 
that's being discussed. But section 1303 actually sets up the 
individual mandate with regards to abortion and the abortion 
funding. It has become known as the so-called Nelson compromise 
because it arose out of Senator Ben Nelson's attempt to find 
language that would make it clear that there would be no 
government Federal funding with regards to abortion.
    Section 1303 specifically says that in plans where elective 
abortion are offered anywhere within that network, whether it's 
in your own or if you're finding it in an exchange, you have to 
pay a separate fee, in addition to your premium. That fee is 
paid monthly, and it goes into a segregated fund, and that fund 
is used only for one purpose, and that's to fund elective 
abortions for anyone within that coverage. No matter your age, 
your sex, or your religious objection to the contrary, you 
still have to pay for that particular coverage.
    And the even more egregious thing with it is you can't find 
out if your plan covers abortion because of the so-called 
secrecy clause that was put into the Obamacare law so that you 
wouldn't be able to find out whether your plan covered 
abortion. Any other area where you want to find insurance, 
whether it's car insurance or health insurance, before you 
decide to take a particular plan and pay the premium, you have 
the right to be able to get a list of what that plan covers.
    But here you're not allowed to do so. In fact, under the 
Obamacare law, insurance companies are prohibited from 
providing any information with regards to that coverage, and 
therefore it is essentially Russian roulette. You don't know 
until you actually pay the premium. Once you pay the premium, 
you're locked in for a year. After you pay the premium, you get 
to know what's in that plan, and if that plan covers abortion, 
you're forced, in addition to your premiums, to pay an 
additional monthly fee, and that fee goes directly to fund 
abortion.
    That was Senator Nelson's way to get around having Federal 
funds do that, but now the Federal law provides and coerces 
individuals to do that very thing. So that breaks with 
consistent Federal policy under the Hyde Amendment and others 
about not having coerced Federal funds from taxpayers to pay 
for abortion.
    This is a direct assault. Regardless of what the Supreme 
Court does this month with regards to the Hobby Lobby case and 
the Conestoga Wood case relating to the employer mandate, this 
is still in existence and it still affects every single person 
around the country. So this is a direct assault. It needs to be 
addressed by Congress. Something needs to be done to exempt 
those with sincerely held religious beliefs from that provision 
because never before have we been able to trace a dollar from 
your purse or pocketbook directly from you to one source to 
fund abortion. It's not a general funding of medical 
procedures, one of which might be a knee replacement and 
another might be abortion. This fund goes directly from the 
person and it has its only objective to fund the taking of 
innocent human life.
    Mr. Franks. Thank you, sir.
    Ms. Colby, I know that much has already been mentioned 
today about the Tabor case, but I wonder, if you would, just 
for those of us that are not as erudite as you are, could you 
break that down for us a little bit. Tell us what the 
administration, the Obama administration actually argued, and 
how, if they had been successful, that would have affected 
churches and other religious institutions.
    Ms. Colby. Certainly. I think, as Greg already mentioned, 
the Obama administration took an extreme position in the 
Supreme Court that was unnecessary. I was actually part of a 
group of about 15 people from the religious liberty community, 
from Jewish groups, Catholic groups, Christian groups, 
Protestant groups, who met with the Solicitor General's office 
beforehand to try to say we understand you have to defend the 
EEOC, but please do it with the least amount of damage possible 
to religious liberty.
    And so we were shocked, we were stunned, all of us, when we 
saw what the administration ended up filing. It was a brief 
that said that the Free Exercise Clause and the Establishment 
Clauses have nothing to do with the church's right to decide 
who its minister should be, that there was no protection under 
either of those clauses for a church or any other religious 
congregation to decide who its leaders would be.
    Mr. Franks. So a Jewish synagogue would not have the right 
to hire a Jewish rabbi.
    Ms. Colby. No. Well, they could hire him----
    Mr. Franks. Couldn't discriminate against Baptists or 
others.
    Ms. Colby [continuing]. But if there were a lawsuit, the 
government could interfere, right.
    Mr. Franks. I understand. All right. Well, I wish I had 
more time, but I don't, so I will now yield to the Ranking 
Member for 5 minutes for questions.
    Mr. Cohen. Thank you, Mr. Chair.
    Ms. Colby, I would like to ask you a question. I saw in 
your biography that you were particularly interested in slavery 
history there. When you studied slavery, did you see a whole 
bunch of people that supported slavery on the theory that it 
was a Christian thing to do, that a lot of people back at that 
time used the Bible, unfortunately, as a basis to defend 
slavery?
    Ms. Colby. Actually, I've heard that argument made a lot, 
and it's something that I am trying to look into on my own. But 
I've been interested in reading--I believe her name is Annette 
Gordon-Reed, She's a professor at Harvard Law School, and she 
wrote about the Sally Hemmings-Jefferson relationship. And just 
in passing, I think it's called ``The Hemmings of Monticello.'' 
She just in passing says around page 98 or something, that one 
would not have expected Jefferson to have emancipated his 
slaves because he was not a Trinitarian Christian, he was not a 
believing Christian, he was a deist. And she just says in 
passing that the only owners that were doing that were 
essentially evangelical Christians. Now, I certainly am not 
saying that all evangelical Christians----
    Mr. Cohen. You're not saying Robert E. Lee wasn't a 
Christian, are you? You're not suggesting that Stonewall 
Jackson wasn't a Christian, are you?
    Ms. Colby. I am not suggesting that, but what I am 
suggesting----
    Mr. Cohen. They were fine Christian men, and they had their 
slaves.
    Ms. Colby. What I am suggesting is that the whole abolition 
movement originated in first the Quakers and then the 
evangelical Christians.
    Mr. Cohen. But there were lots of people who defended 
slavery on the basis that that was--just like they defended the 
miscegenation laws. Do you believe that people of different--
African Americans and caucasians should be able to intermarry?
    Ms. Colby. Of course.
    Mr. Cohen. Okay, good.
    Dean Staver, how about you, do you believe in that?
    Mr. Staver. Yes.
    Mr. Cohen. You do. So all those ministers that said that 
that was against Christianity and for years that was the basis 
of the defense before Loving v. Virginia, they used the Bible, 
unfortunately, and besmirched it.
    Mr. Staver. Well, some may try to use the Bible for that, 
but if you look at the abolition movement, it was really a 
movement that rose out of Christian beliefs and Judeo-Christian 
values, not only here in the United States, but also William 
Wilberforce. It was something that was grounded in Judeo-
Christian values
    Mr. Cohen. Let me ask you this. There are certain anti-gay 
laws that they have in Russia. You, I believe, have advocated 
for something similar to that, have you not? Do you support the 
Russian anti-gay laws?
    Mr. Staver. The Russian anti-gay laws?
    Mr. Cohen. The laws in Russia that make it illegal to be 
gay and to have certain activities restricted for people who 
are gay.
    Mr. Staver. What I am concerned about is having people of 
Christian, Judeo-Christian beliefs be forced to participate in 
a ceremony or an event that celebrates something that is 
contrary to their religious belief.
    Mr. Cohen. Okay. So you are not in favor of the anti-gay 
Russian laws. What I read was wrong.
    Mr. Staver. I don't know what you read.
    Mr. Cohen. Fine.
    Mr. Staver. I haven't spoken on the Russian law anywhere.
    Mr. Cohen. Okay. Thank you. I am happy to see that.
    You wrote a book called ``Take America Back,'' or an 
article.
    Mr. Staver. Yes.
    Mr. Cohen. Is it a book or an article?
    Mr. Staver. It's a book.
    Mr. Cohen. What are we taking America back from? And who is 
we?
    Mr. Staver. The point of it was to go back to a 
constitutional roots of the Constitution and the rights that 
are guaranteed in our Constitution, that the Founders 
guaranteed the right to freedom of speech, freedom of free 
exercise of religion, those kinds of rights that are declared 
not only in the Constitution, but that are set forth in the 
Declaration of Independence, that we have certainly unalienable 
rights that come from our creator, among which are life, 
liberty, and the pursuit of happiness.
    Mr. Cohen. Right. And do you believe that the Interstate 
Commerce Clause was sufficient to allow for the Civil Rights 
Act to be constitutional?
    Mr. Staver. I have never argued to the contrary, so I don't 
know if you've read anything to that effect. I've never argued 
anything to the contrary.
    Mr. Cohen. So you support the constitutionality of the 
Civil Rights Act?
    Mr. Staver. I am certainly an advocate of civil rights.
    Mr. Cohen. Do you support the constitutionality of the 
united Civil Rights Act of 1964?
    Mr. Staver. Yes.
    Mr. Cohen. Good. Good, good, good, good.
    You referred to Obamacare. Just for the record, it's the 
Affordable Care Act and Patient Protection Act. That's the real 
name of it. We're talking about contraception. The Founding 
Fathers, what was contraception when the Founding Fathers were 
around? Do you think they envisioned pills and surgical 
procedures, or would they have some other form of 
contraception?
    Mr. Staver. I don't think they envisioned the kind of 
contraception or abortifacients we have today. However, 
abortion was something that was known, and it's even in the 
Hippocratic Oath, long through the centuries that that was an 
issue.
    Mr. Cohen. But birth control like we have today wasn't 
known then, right?
    Mr. Staver. No
    Mr. Cohen. So we have to kind of flow with the times and 
learn?
    Mr. Staver. Well, we have to also understand that there are 
certain fundamental values. Life is a critical value. Without 
the right to life, you have no other rights. Rights to freedom 
of speech or freedom of religion is meaningless to a corpse.
    Mr. Cohen. Do you believe any abortion, even in the first 
couple or 3 weeks of conception, is constitutional or legal?
    Mr. Staver. I believe that life comes from our creator, and 
that life biologically begins at the moment of conception, and 
the taking of innocent human life is tantamount to murder.
    Mr. Franks. The gentleman's time has expired
    Mr. Cohen. Thank you, sir. I yield back the balance of the 
time that I don't have.
    Mr. Franks. And I would now recognize the gentleman from 
Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    I know there was a lot said in the opening statements each 
made. For example, my friend from Tennessee was quoting from 
Thomas Jefferson. I think it is good to also--and, actually, I 
know, Reverend Lynn, you had said, ``I think the Founders would 
be appalled,'' were your words. I think, personally, for me, 
the Founders would be appalled at the things that have appalled 
you, rather amazingly.
    The quote about Jefferson, from Jefferson, he also in the 
Jefferson Memorial, he said, ``God, who gave us life, gave us 
liberty. Can the liberties of a nation be secure when we have 
removed a conviction that these liberties are the gift of God? 
Indeed, I tremble for my country when I reflect that God is 
just, that His justice cannot sleep forever.''
    And I know, it was even mentioned, that--of Jefferson being 
a deist. You know, we know that he cut out miracles from his 
version of the Bible, but my understanding of a deist is that a 
deist does not believe that whatever God or deity, whatever it 
was that created things ever interferes with the natural course 
of things. And yet here you have Jefferson being very concerned 
that God's justice would not sleep forever.
    I also note, this was a gift from my aunt from my uncle's--
what my uncle was given going into World War II. And here it 
says ``the White House,'' ``Washington,'' ``As Commander in 
Chief, I take pleasure in commending the reading of the Bible 
to all who serve in the Armed Forces of the United States. 
Throughout the centuries, men of many faiths and diverse 
origins have found in the Sacred Book words of wisdom, counsel, 
and inspiration. It is a fountain of strength and now, as 
always, an aid in attaining the highest aspirations of the 
human soul.'' Signed, ``Franklin D. Roosevelt.''
    Reverend Lynn, are you offended by that, that the 
President, with the stamp of the White House, would allow that 
to be in Bibles that were given out to soldiers?
    Rev. Lynn. I am not offended by that, but one of the 
reasons I am not offended by it is because I suspect I shared a 
lot of the particular religious beliefs of Franklin Roosevelt.
    A few years ago, I was honored to receive from the Franklin 
and Eleanor Roosevelt Institute a medal of freedom--a medal of 
freedom for the freedom to worship. And I think that----
    Mr. Gohmert. That wasn't awarded by Roosevelt himself.
    Rev. Lynn. No, it was not. By the----
    Mr. Gohmert. Yeah. And you are familiar with the prayer 
that he prayed on D Day----
    Rev. Lynn. I am very familiar with the prayer.
    Mr. Gohmert [continuing]. Right? You are familiar with that 
prayer he prayed on D Day, correct?
    Rev. Lynn. I am familiar with the prayer----
    Mr. Gohmert. Where he asked that God help against these 
unholy forces.
    But you mention, you know, at numerous times you are a 
Christian. And, of course, that, like the term ``deist,'' can 
have different meanings to different people. And I think about 
the episode of ``Seinfeld'' where Elaine finds out her 
boyfriend is a Christian and he has never mentioned it to her 
and she is offended. ``So you are a Christian?'', she asks 
basically. ``Don't you believe if you are not a Christian you 
go to hell?'' ``Well, yeah.'' ``Then why haven't you said 
anything to me if you care about me?''
    I am curious, in your Christian beliefs, do you believe in 
sharing the good news that will keep people from going to hell, 
consistent with the Christian beliefs?
    Rev. Lynn. Yeah, I wouldn't agree with your construction of 
what hell is like or why one gets there. But the broader 
question is, yes, I am happy to. When I speak to----
    Mr. Gohmert. Okay. So you don't believe somebody would go 
to hell if they do not believe Jesus is the way, the truth, the 
life?
    Rev. Lynn. I personally do not believe people go to hell 
because they don't believe in a specific set of ideas in 
Christianity. I have never----
    Mr. Gohmert. No, no, no, not a set of ideas. Either you 
believe as a Christian that Jesus is the way, the truth, the 
life, or you don't. And there is nothing wrong in our country 
with that. There is no crime, there is no shame. It should 
never be a law against those beliefs, because God gave us the 
chance to elect to either believe or disbelieve. And that is 
what we want to maintain, is people's chance to elect yes or 
no, the chance that we were given.
    So do you believe----
    Rev. Lynn. Congressman, what I believe is not necessarily 
what I think ought to justify the creation of public policy for 
everybody, for the 2,000 different religions that exist in this 
country, the 25 million nonbelievers.
    I have never been offended; I have never been afraid to 
share my belief. When I spoke recently at an American Atheists 
conference, it was clear from the very beginning in the first 
sentence that I was a Christian minister. I was there to talk 
to them about the preservation of the Constitution. And, in 
fact, I said, you know, we can debate the issue of the 
existence of God for another 2,000 years; I want to preserve 
the Constitution and its effect on all people, believers and 
not-believers, in the next 5 years. That is what I talk about--
--
    Mr. Gohmert. So the Christian belief, as you see it, is 
whatever you choose to think about Christ, whether or not you 
believe those words he said, that nobody, basically, goes to 
heaven except through me.
    Rev. Lynn. We could have a very interesting discussion 
sometime, probably not in a congressional hearing, about----
    Mr. Gohmert. Well, I was just trying to figure out, when 
you said ``Christian''----
    Rev. Lynn [continuing]. Scriptural passages.
    Mr. Gohmert. There is no judgmental--that is not my job. 
God judges people's heart, in my opinion. But just to try to 
figure out what we meant by ``Christian.'' So I appreciate your 
indulgence.
    Thank you.
    Mr. Franks. I thank the gentleman.
    And I now recognize Mr. Nadler for 5 minutes.
    Mr. Nadler. Thank you very much.
    Mr. Staver, you said it is an imposition--let me start out 
by saying I was one of the sponsors of the Religious Freedom 
Restoration Act. And, along with Charles Canady, a former 
Republican Member from Florida, I was the author of the 
Religious Land Use and Institutionalized Persons Act. But we 
always conceived of these as shields of religious freedom, not 
as swords with which to impose religious beliefs on other 
people.
    Let me ask you a few questions. You said it is wrong, an 
imposition on religious belief for government to insist that 
the wedding photographer not be able to say I won't go to the 
gay marriage; is that correct?
    Mr. Staver. Correct.
    Mr. Nadler. Would it be an equal limitation of his 
religious belief if he said I don't want to go to a wedding of 
black people, I want to discriminate against black people? 
Would the government saying you can't do that be a violation of 
his religious freedom?
    Mr. Staver. I think that is fundamentally different.
    Mr. Nadler. Why?
    Mr. Staver. She is not saying she doesn't want to 
photograph a wedding where there is people who are gay and 
lesbian. She is saying she doesn't want to photograph a 
celebration of same-sex unions.
    Mr. Nadler. And if her religious beliefs said I don't want 
to celebrate a celebration of black unions because I think 
black people shouldn't get married, that is my religion, I 
mean, is it an imposition on her religious freedom for 
government to say you can't do that?
    Mr. Staver. I think it is fundamentally different, and I 
don't think that is what the issue is in that case. And I 
don't----
    Mr. Nadler. That is exactly what the issue is.
    Mr. Staver. No, they----
    Mr. Nadler. She has a religious belief that she shouldn't 
participate or be forced to participate in a celebration which 
goes against her religious belief. And let's assume her 
religious belief is that she shouldn't photograph a Jewish 
wedding. Would that be discrimination that the civil rights law 
can proscribe or not? And if not, why not?
    Mr. Staver. I think it would be something that she wouldn't 
object to, first of all; secondly----
    Mr. Nadler. Somebody with some religious belief might 
object. I am not saying your client or your friend or whoever 
she is. Let's assume that someone had such a religious belief, 
that it is a violation of her religious belief to be forced 
professionally, because she is a photographer, to photograph a 
Jewish wedding or a Muslim wedding or whatever, and the 
government says, that is discrimination, you can't do that. Is 
the government being improper by limiting her religious freedom 
in that case?
    Mr. Staver. Well, first of all, there is a legal question 
of whether it is a public accommodation, but assuming that it 
is----
    Mr. Nadler. Assuming that it is.
    Mr. Staver.--I think that she would have an issue there, a 
violation potentially. But I think what----
    Mr. Nadler. She would have a violation. Okay.
    Mr. Staver. But that issue is fundamentally different. She 
specifically stated in that case that she doesn't discriminate 
against----
    Mr. Nadler. Excuse me, it is my time. I don't see any 
difference at all. You can try to see it.
    Now, if the owner of a public accommodation, a restaurant, 
said, I don't want--well, I am holding out myself in commerce--
my religious belief is I don't want black people or Jewish 
people or whoever, or gay people, in my restaurant, and 
certainly not a gay couple holding hands, and the Federal 
Government says that is discrimination, is that a violation of 
the freedom of religion?
    Mr. Staver. No. And I don't think that is what the issues 
are that we are----
    Mr. Nadler. I don't see how it is distinguishable.
    Let me ask you a different question. The Affordable Care 
Act says you have to have certain basic services covered by the 
insurance policy. You object because it violates the religious 
beliefs of some people to have contraception covered.
    Let's assume that it covered blood transfusions. Some 
religious groups are opposed to blood transfusions. What is the 
difference?
    Mr. Staver. Well, I think if it was someone like a 
Jehovah's Witness or some other kind of religion, then that is 
a fundamentally different situation.
    Mr. Nadler. Why?
    Mr. Staver. Because that does conflict with their sincerely 
held----
    Mr. Nadler. Oh, so you are saying it would be the same 
situation. In other words, we shouldn't be allowed to say that 
insurance companies have to cover blood transfusions because 
there are people, Jehovah's Witnesses or whoever, who----
    Mr. Staver. No, no. I am referring to an individual who is 
being forced to have a blood transfusion.
    Mr. Nadler. No, no, no, we are not talking about being 
forced to have a blood transfusion, because we are not talking 
about someone being forced to have an abortion.
    The objection is to mandating that the insurance policy 
cover abortions for those who want them. The objection here 
would be requiring the insurance policy to cover blood 
transfusions for those who want them and who need them.
    What is the difference?
    Mr. Staver. I think there is a significant difference.
    Mr. Nadler. To wit?
    Mr. Staver. Because one is the taking of innocent human 
life.
    Mr. Nadler. Excuse me. That is a value judgment. And you 
may----
    Mr. Staver. That is not a value judgment. That is a--that 
is so fundamental----
    Mr. Nadler. Wait a minute. That is a religious conviction.
    Mr. Staver. That is so fundamental to your Christian belief 
that you cannot violate that.
    Mr. Nadler. Fine. To some Christian beliefs and not to 
others and not to some other beliefs. And I am not going debate 
that, nor am I debating the validity of someone objecting on a 
religious basis to blood transfusions or to a lot of other 
things. There are equally valid beliefs, from a government 
point of view. Any religious belief is equally valid from a 
government point of view, can't distinguish.
    Mr. Staver. But the taking----
    Mr. Nadler. So my question is----
    Mr. Staver [continuing]. Of innocent human life----
    Mr. Nadler. The taking of innocent human life----
    Mr. Staver [continuing]. Is fundamentally different. The 
destruction of another human being is fundamentally different.
    Mr. Nadler. All right. Let's assume we aren't talking about 
abortifacients, we are only talking about--or what are 
characterized abortifacients--contraception. That aside, is not 
the taking of innocent human life.
    Mr. Staver. Well, the FDA classifies Ella and Plan B as 
abortifacients.
    Mr. Nadler. Put that aside. Let's assume that you weren't 
talking about----
    Mr. Franks. The gentleman's time has expired.
    Mr. Nadler. We are talking only about contraception. Would 
that be different from the blood transfusion case?
    Mr. Staver. I am sorry, I didn't----
    Mr. Nadler. Would that be--if the requirement says the 
insurance company must cover contraception, not including what 
you would consider abortions, would that be different and of 
greater or lesser validity as an invasion of religious liberty 
than the requirement that the insurance policy cover blood 
transfusions, which other people object to on religious grounds 
also?
    Mr. Staver. It could be similar, but I think it is also 
fundamentally different, particularly for those of Roman----
    Mr. Nadler. It does.
    Mr. Staver.--Catholic beliefs, because it deals with the 
creation or the destruction of innocent human life.
    Mr. Nadler. We are not talking about abortions. We are the 
talking----
    Mr. Staver. I know----
    Mr. Franks. The gentleman's time has expired.
    Mr. Staver. But we are talking about contraception, not the 
abortifacients. That is what we are talking about.
    Mr. Nadler. Right. Yes.
    Mr. Staver. For those of Roman Catholic belief, that deals 
with the very beginning of human life. The----
    Mr. Nadler. And for those of other beliefs, transfusions 
are equally objectionable. What is the difference?
    Mr. Staver. I think it is fundamentally different when you 
are talking about the creation or destruction of innocent human 
life.
    Mr. Franks. The gentleman's time has expired.
    And we now recognize Mr. King for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    And I thank the witnesses for your testimony.
    Sometimes I have a little trouble attaching all the 
dialogue if I can't take it back and anchor it to something 
that is the basis for our discussion here, and I think that 
would be the First Amendment. And I don't believe I heard 
anybody actually address the text of the First Amendment.
    So I would turn to Dean Staver and ask--I want to go to 
this wall-of-separation discussion. So could you explain that 
to me, how we got to that?
    Mr. Staver. The wall of separation?
    Mr. King. Yes.
    Mr. Staver. Well, the First Amendment clearly says that 
Congress shall make no law respecting the establishment of 
religion or prohibiting the free exercise thereof. So it is a 
protection of a barrier against government intrusion on 
religious freedom. That is what the essence of the First 
Amendment is.
    Thomas Jefferson's letter to the Danbury Baptists was a 
letter of congratulations by the Danbury Baptists, and he used 
the opportunity, as he often did, to write a letter to give 
certain kinds of statements. And in that statement, he was 
justifying, especially in the earlier drafts that are clearly 
available now for review and research, why he didn't, like his 
previous predecessors, Washington and Adams, engage in national 
days of prayer. And he indicated that the Federal Government 
was not allowed to establish a religion and, therefore, not 
allowed to require a national prayer, and so, therefore, as the 
Executive, he was not allowed to carry out what the Federal 
Government was not allowed to do.
    He never used the word ``separation of church and state'' 
before that letter. And if it was so important to him, he never 
used it again after the letter. He never used it at all.
    And, in fact, in another letter, he refers to the First 
Amendment with regards to religion and the 10th Amendment as 
saying essentially the same thing: The Federal Government 
should have the hands off of religion because that is a matter 
reserved for the States.
    Mr. King. But if Thomas Jefferson for a moment, maybe in a 
fit of anger or frustration, for a moment wrote a letter to the 
Danbury Baptists and for that moment he had changed his mind on 
his longstanding support for the First Amendment and then never 
revisited it again, is there any legal basis whatsoever for an 
opinion that came out so many years later?
    Mr. Staver. No. In fact, the Supreme Court that first 
really relied upon that said that Thomas Jefferson, as we know, 
basically was influential in the drafting and adoption of the 
First Amendment. And, of course, Justice Rehnquist was the 
first Justice who later, in a dissent or a concurring opinion 
later, literally demolished that. No historian now will support 
what that opinion says, because Thomas Jefferson had nothing 
whatsoever to do with drafting the First Amendment.
    Mr. King. So from a First Amendment standpoint, we are back 
to ``Congress shall make no law.''
    Mr. Staver. Yes.
    Mr. King. And that stands today, and it has not been 
redefined by any succeeding precedent case----
    Mr. Staver. Correct.
    Mr. King [continuing]. In your judgment.
    Would you agree, Mr. Baylor?
    Mr. Baylor. Well, your question is about whether the 
Establishment Clause applies to local and State government, as 
well, beyond Congress. Is that--am I understanding correctly?
    Mr. King. Well, I didn't ask you the question, but it is 
one we should get answered here, so I would ask your opinion on 
that.
    Mr. Baylor. Yeah. You know, that is not a question that is 
presently being debated very much among the courts. I think it 
is well-accepted that it ought to be applied and it ought to be 
applicable to the State and local governments, as well.
    But the question is, what does the thing mean? And when the 
phrase ``separation of church and state'' was initially used by 
the Supreme Court, it was to protect the church from the state, 
not to be a device under which the government discriminates 
against religion.
    And from 1947 forward, when the Supreme Court invoked that 
phrase and misinterpreted and misapplied it, all too many 
organizations and Justices were using this phrase as meaning, 
``We must exclude Christian speakers or religious speakers from 
public settings; we must deny them equal access to funding.'' 
So the key issue is the meaning of the Establishment Clause.
    Mr. King. Is there any scholarship that there was ever an 
effort to actually insert those words into the Constitution, by 
amendment or in the original draft?
    Mr. Baylor. Well, the Blaine amendment that was proposed 
after the Civil War was designed to deny equal educational 
funding to religious schools, and that effort failed. And I 
think it is quite ironic that the Establishment Clause was 
subsequently interpreted by the court to hold precisely that. 
Now, thankfully----
    Mr. King. Was there ever an effort----
    Mr. Baylor [continuing]. The court changed its mind about 
that.
    Mr. King. Was there ever an effort to amend the 
Constitution, ever a proposal or an actual constitutional 
amendment that would have inserted language, ``a wall of 
separation,'' or similar language that you know of?
    Mr. Baylor. Not to my knowledge, no, sir.
    Mr. King. Reverend Lynn, are you aware of any?
    Rev. Lynn. No. I think it is right, because I think that it 
was commonly understood after the passage of the 14th Amendment 
that one of the purposes of the 14th Amendment, as articulated 
by the Republican sponsors of the 14th Amendment, was to apply 
the Bill of Rights to the States and, therefore, to guarantee 
this same what Jefferson called a ``wall of separation'' to 
State activity.
    Mr. King. Do you know anything about a report that I have 
that the Ku Klux Klan had actually made an effort to introduce 
that language in as an amendment to the Constitution, 
``separation of church and state,'' and that it originated as 
an anti-Catholic bias from the Klan?
    Rev. Lynn. There was certainly anti-Catholic bias on the 
part of the Ku Klux Klan. They hated pretty much everyone who 
was not themselves.
    Mr. King. Does anyone on the panel----
    Rev. Lynn. But this is not----
    Mr. King [continuing]. Have any knowledge of that?
    Rev. Lynn. What?
    Mr. King. Does anyone on the panel have any knowledge of 
what I just brought up?
    Rev. Lynn. No.
    Mr. King. Hearing none--Dean Staver, I see you leaning 
forward.
    Mr. Staver. Well, I think, as Mr. Baylor said, that there 
was an effort with the Blaine amendment to specifically 
discriminate against, particularly, Catholic Church and 
Catholic schools. There were two attempts to amend the First 
Amendment to replace the words ``Congress shall make no law 
respecting'' to ``no State shall make no law.'' Both of those 
failed.
    Mr. King. I understand. And I appreciate all the witnesses' 
testimony.
    And I yield back the balance of my time.
    Mr. Franks. And I thank the gentleman.
    And I now recognize the gentleman from Virginia, Mr. Scott, 
for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Reverend Lynn, the school-prayer issue has been bandied 
back and forth. Can you tell me the implications of the 
Establishment Clause and the Free Exercise Clause in that 
issue?
    Rev. Lynn. I think it is a perfect example of where those 
two clauses have an independent and important meeting.
    The nonestablishment principle means, as the Supreme Court 
rightly said in the early 1960's, local governments cannot 
write a prayer, the so-called regent's prayer. No bureaucrat 
should write a prayer that every student should articulate. And 
then, just a year later, in another Supreme Court decision, the 
majority of the Court said it is also true that local 
governments cannot choose a prayer, even the Lord's Prayer, or 
select what holy scripture--in the case of Maryland and 
Pennsylvania, the Holy Bible of Christianity--and require it to 
be articulated in the schools. That is what the establishment 
principle means.
    What the free-exercise principle means is that if I want to 
have my child say a prayer, as she frequently did, in 
elementary school over her lunch, she was not barred from doing 
that. That was truly her independent decision, because that is 
something she learned in her family. That is free exercise of 
religion.
    Establishment is when the government decides the time, the 
place, the manner, or the content of prayer. That is properly 
forbidden and, I think, a long-established principle, which is 
why we don't have constitutional amendments on this matter 
coming up every year before the United States House and Senate 
as we did 20 years ago.
    Mr. Scott. Thank you.
    A lot has been said about the government picking a 
religious leader. Is there any question that a church, a 
synagogue, can discriminate based on religion in selecting 
their leadership with their congregational money?
    Rev. Lynn. We took a position in the Hosanna-Tabor case 
that was somewhat different than the Obama administration, 
concerned that that could be read too far, to act as if, if you 
were trying to hire a new rabbi, you had to make sure that you 
also went and considered Buddhist priests or a Wiccan priestess 
for the same position.
    We took the position that the issue is what can be defined 
as a minister and that a minister simply can't be defined by 
act of the congregation determining that a whole class of 
people happen to be ministers.
    So we have now been approached, for example, by African-
Americans who work for churches who have been defined as 
ministers now, even though they might not have been a minister 
before the Hosanna-Tabor case, who say, we think race played a 
role in our dismissal. But thanks to the Hosanna-Tabor's broad 
language, that individual cannot go to the EEOC and say, 
``Look, this is a fraud. It wasn't about religion. They fired 
me because of race.'' He or she cannot get into the EEOC's 
door, which means he or she cannot have access to Federal 
courts.
    That is a terrible decision. It went too far. I don't know 
why the administration took quite the broad position it did. We 
took a much narrower one. And I wish that that had been the 
majority opinion in that case instead of a nine-to-zero 
decision that opens the gates to widespread discrimination 
without any access to claim that gender or disability or even 
race was the true justification for a firing.
    Mr. Scott. Is there a difference in using Federal money 
rather than congregational money when you are talking about 
discrimination?
    Rev. Lynn. Oh, I think so. I mean, I think it is absolutely 
clear that the Federal Government continues to allow funding 
through grants and contracts to organizations that discriminate 
on the basis of religion.
    This is something the President said when he was a 
candidate for the Presidency in 2008 that he would change. 
Unfortunately, he has not done that, and it remains a 
persistent problem for civil rights in this country.
    To allow a group to get a government contract and not to be 
in a position to hire the best qualified person, to be allowed 
to hire on the basis of religious preference or their comfort 
level with hiring people of their same faith background, I 
think is a disgrace in the 21st century for anyone and 
certainly for this administration to continue to pursue.
    Mr. Scott. We are in the 51st anniversary of the signing by 
President Kennedy of the Equal Pay Act. If people have 
religious objections to equal pay, what happens? And is there 
any caselaw on that?
    Rev. Lynn. There is one case that I am aware of in the 
Fourth Circuit. It arose in a facility in the State of 
Virginia. The idea was that the school in Virginia would not 
pay men and women equally; they paid men more. They cited the 
Christian doctrine that as Christ is head of the church, so the 
husband is head of the family, and therefore justified giving 
husbands, mainly men, more money.
    This was litigated. That position lost in the First 
Circuit. It was not appealed to the United States Supreme 
Court. But it is another example of how if you say these laws 
can be selectively enforced, if I have a religious objection, 
it doesn't apply to me, it applies to not just birth control, 
it applies to all kinds of other medical procedures, it applies 
to the civil rights rubric of our country, it applies to the 
Equal Pay Act. As Justice Scalia once mentioned, it is a 
principle that courts anarchy.
    I think this is the first time I have ever quoted Justice 
Scalia in testimony before this or any Committee.
    Mr. Franks. The gentleman's time has expired.
    And I now recognize the gentleman from Virginia, Mr. 
Forbes, for 5 minutes.
    Mr. Forbes. Chairman, thank you.
    And, gentlemen, thank you, and ladies, for being here 
today.
    And, Mr. Lynn, I just heard the last part of your 
questioning from my good friend from Virginia, Mr. Scott, but I 
read your testimony, and the part where it said that there was 
a radical redefinition of religious liberty that is under way.
    Are you the one attempting that radical redefinition, or 
are you suggesting that the people sitting at the table with 
you are?
    Rev. Lynn. Well, I think that the--my suggestion is that 
the three people around me, all of whom I have known for many 
decades, are unfortunately radically trying to rewrite and turn 
this into----
    Mr. Forbes. Let me ask you this question then. Are you 
suggesting that the test that you put forward is the current 
test that the courts have established for religious freedom and 
religious liberty?
    Rev. Lynn. I would say that it depends which courts you are 
talking about. The United States Supreme Court has made a 
series of decisions----
    Mr. Forbes. Let me ask you on the United States Supreme 
Court where they said----
    Rev. Lynn. Yep.
    Mr. Forbes. Because here is basically what you say. You say 
that religious accommodations and exemptions should only be 
granted when, one, there is a genuine and substantial burden on 
First Amendment right, and, two, that they not impinge on the 
interest of others. Is that the Supreme Court test?
    Rev. Lynn. That is not the Supreme Court test.
    Mr. Forbes. So, then, the test that you set forward would 
really be a radical redefinition of religious liberty, I think.
    And let me ask you this question. Based on the definition 
that you put forward, do I have a right not to be offended? And 
if so, is there ever a time when your right to practice your 
religion should be subordinated to my right not to be offended?
    Rev. Lynn. No, I don't like that phrase of ``take offense'' 
or ``be offended.'' I don't think Americans have a right not to 
be offended. I do think they have the right, though, not to be 
asked to subsidize someone else's religion with----
    Mr. Forbes. Yeah, but that is not my question.
    Rev. Lynn [continuing]. Which they disagree.
    Mr. Forbes. So you agree with me that they don't have a 
right not to be offended?
    Rev. Lynn. I am offended 100 times a day by something.
    Mr. Forbes. Good. If I own a convenience store in Virginia 
that sells gas and my religious beliefs require me not to open 
on Sunday, is there ever a time when your interest to get gas 
while traveling through the State should cause my religious 
beliefs to be subordinated to your need for gas and I should be 
forced to open on Sunday?
    Rev. Lynn. No, I think that in that example you have a 
good, colorable claim that your right not to open--it is your 
position, it is not the State law, it is your position--does 
put some people in an area of inconvenience but does not in any 
way insult the integrity or the dignity as if you were to say 
to a gay couple walking into your restaurant, ``You know, 
folks, I am not going to serve you. You have to go elsewhere.''
    Mr. Forbes. If I did open on Sunday but my religious 
beliefs required me not to sell alcohol or tobacco products on 
Sunday, is there ever a time when your interest to buy such 
products should cause my religious beliefs to be subordinate to 
your interest to buy such products and when I would be forced 
to sell them to you?
    Rev. Lynn. Depending on the State. If you are a State whose 
sales on Sunday of things like alcohol and tobacco are 
regulated by State law, I am afraid that if you want the 
license to sell, you probably under those circumstances need to 
also adopt the requirement of State law, if it is so, that you 
sell those products on Sunday.
    Rev. Lynn. I don't think there is any State that would 
require me to sell alcohol and tobacco.
    Rev. Lynn. I don't think there is either.
    Mr. Forbes. So, then, give me the State where the law would 
be as you just pointed out.
    Rev. Lynn. I don't know that there is a State. Mine was a 
hypothetical, that if you seek a license from the State and 
then you say, well, I want some of the privileges of it, like 
the ability to sell alcohol, but I don't want to abide by all 
of the other regulations----
    Mr. Forbes. Well, there is no regulation that says I have 
to sell it. So what you are saying is that the State just says 
I can sell alcohol and tobacco. You are saying then I have to 
sell it 7 days a week, regardless of my religious beliefs?
    Rev. Lynn. No. I am just saying that it depends on what 
else you adopt----
    Mr. Forbes. Well, Mr. Lynn, let me ask you this.
    Rev. Lynn [continuing]. When you adopt----
    Mr. Forbes. Who draws these lines?
    Rev. Lynn. The courts.
    Mr. Forbes. Does the President--the courts do it? So then 
that means that the only way I know if I have a protected right 
under the First Amendment is for the court to tell me, which I 
think in and of itself can be a rather chilling impact on my 
First Amendment right.
    But, based on where the court currently is, their standard 
is that the State has to have a compelling State interest and 
that they have to impose that with the least restrictive means 
possible. Would you agree that is the current standard?
    Rev. Lynn. That is a part of the test. You do have to look 
at whether there is a burden on religion to begin with, which 
is in my example----
    Mr. Forbes. I agree, you have to some burden, but I don't 
think the court always says it has to be the substantial 
burden, because it protects First Amendment rights.
    But you would agree that that is the current court test, 
that it has to be a compelling State interest and the least 
restrictive means possible?
    Rev. Lynn. In application of the Religious Freedom 
Restoration Act, absolutely, that is the standard.
    Mr. Forbes. And since----
    Rev. Lynn. Unfortunately, all those terms are now at issue 
before courts----
    Mr. Forbes. And since----
    Rev. Lynn [continuing]. Because, Congressman----
    Mr. Forbes [continuing]. My time has expired, my red light 
is on, I would just conclude by saying, I think to change that 
standard would be the radical redefinition of religious 
liberty.
    And, with that, Mr. Chairman, I yield back.
    Mr. Franks. I thank the gentleman. I wish we had more 
Forbes around.
    I would now yield to Mr. Johnson for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    Dean Staver, are you the same Mathew D. Staver as is Mathew 
D. Staver, PA?
    Mr. Staver. I had a commercial law firm that was Mathew D. 
Staver, PA.
    Mr. Johnson. Was that you, or was that a separate person?
    Mr. Staver. In Florida, if you name your law firm after 
your--in a situation like that, it was me, but it was also 
other attorneys in my law firm that I hired. We had up to 40 
employees and 10 attorneys. That was back in the 1990's.
    Mr. Johnson. Did you give birth to that entity, to that 
person, Mathew D. Staver, P.A.? Did you give birth to it?
    Mr. Staver. I incorporated it under the laws of the State 
of Florida.
    Mr. Johnson. So a corporation is not the product of a union 
between a man and a woman?
    Mr. Staver. Not the last time I checked.
    Mr. Johnson. And a corporation has no ability to join a 
church, does it?
    Mr. Staver. No ability to join a church?
    Mr. Johnson. Uh-huh.
    Mr. Staver. A corporation could be an integrated auxiliary 
of a church and be part of a church.
    Mr. Johnson. Well, I mean, a person joining a church gets 
baptized. You have never heard of a corporation being baptized, 
have you?
    Mr. Staver. I have not, but if I were Mathew D. Staver, 
P.A., and I got baptized, I would be Mathew D. Staver being 
baptized.
    Mr. Johnson. You would be a natural person born to a man 
and a woman who decided to go to church and be baptized, right?
    Mr. Staver. Yes, operating as Mathew D. Staver, P.A.
    Mr. Johnson. But, now, Mathew D. Staver, P.A., does not 
have that ability, does it?
    Mr. Staver. Well, we never tried it, that is for sure.
    Mr. Johnson. Well, I have never heard of it being done, 
myself.
    In fact, an entity such as Mathew D. Staver, P.A., which 
was created 25 years ago, is actually dead, is it not?
    Mr. Staver. That is correct. It has been dissolved and has 
passed on to another world.
    Mr. Johnson. But it has not passed on to heaven, however.
    Mr. Staver. I don't know where it is, actually.
    Mr. Johnson. It did not pass to----
    Mr. Staver. I didn't have that conversation before we 
dissolved it.
    Mr. Johnson. It did not pass through the pearly gates and 
enter the kingdom of heaven, did it?
    Mr. Staver. No, but its creator certainly----
    Mr. Johnson. Well, I am not talking about Mathew D. Staver. 
I am talking about Mathew D. Staver, P.A., your baby. And that 
baby is dead. But you could always bring it back to life if you 
paid the fees down there in Florida and had it reborn, because 
it----
    Mr. Staver. You could potentially resurrect it, yes.
    Mr. Johnson. Yeah. Yeah. And that would be something that 
you as a person can do.
    Mr. Staver. I could do that.
    Mr. Johnson. And, now, Mathew D. Staver has no conscience.
    Mr. Staver. Mathew D. Staver has no conscience? Or Mathew 
D. Staver, P.A.?
    Mr. Johnson. Mathew D. Staver, P.A., has no conscience. 
Mathew D. Staver, P.A.
    Mr. Staver. Mathew--yeah. Mathew D. Staver, just for the 
record, since we are on the record----
    Mr. Johnson. Does have a conscience?
    Mr. Staver [continuing]. Does have a conscience. But Mathew 
D. Staver, P.A., reflects the values of the incorporator or the 
creator, which was me.
    Mr. Johnson. But it doesn't have a soul, though, does it? 
Mathew D. Staver, P.A., it doesn't have a soul, does it?
    Mr. Staver. No, not that I am aware of.
    Mr. Johnson. Well, not that I am aware of either. Now----
    Mr. Franks. Do any lawyers have souls? Just for 
clarification.
    Mr. Staver. Yeah. And since we are on the record, 
definitely, they do have souls. So----
    Mr. Johnson. Well, would you contend that a corporation 
that can't go to heaven, it can be reborn in perpetuity if you 
pay money, it is not born to the union between a man and a 
woman, it doesn't have a soul, it doesn't have a heart, doesn't 
attend church, doesn't get baptized, can't pay tithes and 
offerings, do you contend that a corporation has a First 
Amendment right upon which it can refuse to provide insurance 
coverage for specific medical treatments to an employee legally 
entitled to the coverage because it asserts a First Amendment 
right to freedom of religion?
    Mr. Staver. Yes, I do. And I know a lot of people who have 
not been baptized, don't pay tithes, don't go to church, don't 
have a heart, and I don't know whether they have a soul of 
whatever, but----
    Mr. Johnson. Well, you know they----
    Mr. Staver.--I know that they can go through plastic 
surgery and medical treatment to stay alive, that they still 
have rights as a person.
    Mr. Johnson. Pastor Staver, you know that every human being 
has a soul.
    Mr. Staver. Oh, sure.
    Mr. Johnson. You know that.
    Mr. Staver. Yeah.
    Mr. Johnson. But you also know that no corporation is equal 
to a person and no corporation has a soul. You know that.
    Mr. Staver. There are actually corporations, not to be 
technical, that are called ``corporations sole,'' but that 
doesn't mean you have a soul. However----
    Mr. Johnson. I mean in the way that----
    Mr. Staver.--I believe that corporations, especially those 
that are closely held corporations, as in the case of Hobby 
Lobby, reflect the values of the creator, as Mathew D. Staver 
reflected my values. Mathew D. Staver, P.A., was a reflection 
and an extension of Mathew D. Staver.
    Mr. Johnson. But it did not have its own First Amendment 
right to freedom of speech and----
    Mr. Staver. Yes, it----
    Mr. Johnson [continuing]. Freedom of religion, did it?
    Mr. Staver. Yes, I believe it does.
    Mr. Johnson. All right.
    Mr. Staver. Of course, the issue of freedom of religion is 
before the court, but free speech has already been decided.
    Mr. Johnson. Free speech has already been decided, and that 
is what really scares me about a freedom-of-religion issue 
being before the U.S. Supreme Court at this particular time. It 
scares me.
    And, with that, I will yield back.
    Mr. Franks. I thank the gentleman.
    Well, while we have debated whether corporations have 
hearts and souls, sometimes we--there are those of us that 
believe that the unborn do, in fact, have hearts and souls and 
that when they are aborted it assaults their integrity and 
dignity and that some Christians would rather not subsidize 
that and feel like that under the Constitution we should have 
that right.
    So I have just tried to pull together a few pieces of the 
testimony here. I appreciate all of you for being here. And I 
hope all of us consider the importance of religious freedom. 
This has been a very lively debate, and if there really is a 
God, it might be relevant.
    So, with that, all Members have--let's see. Again, thank 
you all for attending, and this concludes today's hearing.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    And I thank the witnesses, and I thank the members of the 
audience.
    And this meeting is adjourned.
    [Whereupon, at 4:48 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
Congress from the State of Tennessee, and Ranking Member, Subcommittee 
                 on the Constitution and Civil Justice
    Religious freedom is a fundamental pillar of American life. 
Whatever one's religious beliefs, our Constitution enshrines the notion 
that the government remain neutral with respect to religious belief, 
neither favoring one religion over others, nor favoring religious 
belief over non-belief.
    Our Constitution and statutes also require that the government not 
substantially burden the free exercise of religion absent a compelling 
interest and a less burdensome means of meeting that interest.
    In expounding upon the meaning of these Constitutional provisions, 
Thomas Jefferson wrote in a letter to the Danbury Baptist Association 
in 1802: ``I contemplate with sovereign reverence that act of the whole 
American people which declared that their legislature should `make no 
law respecting an establishment of religion, or prohibiting the free 
exercise thereof,' thus building a wall of separation between Church 
and State.''
    It is because religious freedom is so fundamental that it is 
protected in the very first Amendment in the Bill of Rights.
    It is also why I was the sponsor of Tennessee's Religious Freedom 
Restoration Act back in January 1998, when I was a member of the 
Tennessee Senate.
    Like the federal RFRA, the Tennessee RFRA protects religious 
liberty by ensuring that any governmental action that substantially 
burdens the free exercise of religion is prohibited unless there is a 
compelling state interest.
    Tennessee's RFRA, like the federal RFRA, seeks to strike a balance 
between the fundamental right to practice one's religion free from 
government interference and the ability of the government to perform 
its basic duties, including the protection of public health and safety 
and fighting discrimination.
    Any discussion of religious liberty must also include a discussion 
of the threats--both governmental and non-governmental--to members of 
minority religions.
    For example, as Reverend Barry Lynn, one of our witnesses, notes in 
his written testimony, a Muslim congregation in Murfreesboro, Tennessee 
faced intimidation and threats of violence from the local community 
when it attempted to construct a new mosque. While the mosque 
ultimately was built, the legal fight over its construction ended only 
recently, at great cost to the congregation for a fight that it should 
never have had to fight.
    This example, which, unfortunately, is only one of many, reminds us 
that the Bill of Rights' fundamental purpose is to protect the 
minority, the unpopular, and the non-mainstream from majority tyranny.
    Where one's right to free exercise of religion ends and majority 
tyranny begins will be the crux of our discussion today.
    Seven years ago, this Committee heard from Monica Goodling, who at 
that time had just resigned as a Justice Department official, 
concerning hiring practices at the Department during the Bush 
Administration.
    Ms. Goodling was a graduate of Regent University Law School, which, 
according to its website, seeks to provide legal training with ``the 
added benefit of a Christian perspective through which to view the 
law.''
    There was evidence at the time that Ms. Goodling and others 
screened job candidates for career positions at the Justice Department 
based on their partisan affiliations. Although she denied it when I 
asked her, it stands to reason that religious belief could have also 
played a role in hiring decisions.
    A religious litmus test for public office or for career public 
service positions has no place in a society that values religious 
liberty.
    More broadly, attempts to re-make our Nation's longstanding 
political and legal culture so as to give already-dominant religious 
groups more of the coercive power of government must be confronted, for 
if such attempts are successful, the outcome would represent a threat 
to a free society.
    I look forward to a vibrant discussion.

                                

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    Religious freedom was one of the core principles upon which our 
Nation was founded.
    The First Amendment protects this fundamental freedom through two 
prohibitions. The Establishment Clause prohibits the federal government 
from issuing a law respecting the establishment of religion and the 
Free Exercise Clause prohibits the government from affecting the free 
exercise thereof.
    When discussing the government's compliance with these 
prohibitions, we should keep in mind several points.
    To begin with, the real threat to religious liberty is continuing 
religious bias or intolerance against members of minority religions.
    For example, American Muslim communities across the United States 
since September 11, 2001 have been targets of often hostile communities 
and sometimes even government actions.
    There have been numerous well-founded complaints of religious 
profiling by federal, state, and local law enforcement agencies. In 
fact, bills have been introduced in Congress as well in various state 
legislatures targeting Islam.
    It was recently reported that the Transportation Security Agency is 
using a ``behavioral detection program'' that appears to focus on the 
race, ethnicity and religion of passengers.
    As many of you may know, I represent Michigan's 13th District, 
which is home to one of America's largest Muslim communities. So, I am 
particularly disheartened by the overt challenges these communities 
face.
    Targeting American Muslims for scrutiny based on their religion 
violates the core principles of religious freedom and equal protection 
under the law. All Americans--regardless of their religious beliefs--
should know that their government will lead the effort in fostering an 
open climate of understanding and cooperation.
    Yet in the name of religious freedom we cannot undermine the 
government's fundamental role with respect to protecting public health 
and ensuring equal treatment under the law.
    Currently pending before the United States Supreme Court are two 
cases--Sebelius v. Hobby Lobby Stores and Consestoga Wood Specialities 
v. Sebelius--that will hopefully clarify this issue.
    The issue in those cases is whether the government can require can 
require for-profit corporations that provide group health plans for 
their employees to provide female employees with plans that cover birth 
control and other contraceptive services as required by the Affordable 
Care Act, notwithstanding the religious objections of the corporations' 
owners to contraceptives.
    I along with 90 of my colleagues in the House filed an amicus brief 
in those cases disputing that the claim that corporate plaintiffs are 
``persons'' for the purposes of the Free Exercise Clause.
    And, even if they are capable of having religious beliefs, those 
corporations are not entitled to relief under the Religious Freedom 
Restoration Act.
    Moreover, the Affordable Care Act's mandate, we argue, serves two 
compelling governmental interests--namely, the protection of public 
health and welfare and the promotion of gender equality--that outweigh 
whatever attenuated burden the mandate might place on the corporations' 
free exercise rights.
    Finally, as even some of the Majority witnesses acknowledge, the 
Obama Administration's enforcement efforts with regard to protecting 
religious freedom--in the workplace and elsewhere--are to be commended.
    On various fronts, the Administration has striven to take a 
balanced approach to this issue. For example, it added a religious 
employer exemption to the HHS contraceptive mandate in response to 
objections from religious employers.
    These efforts ensure that America continues to foster a safe and 
welcoming environment for all religious practices and communities 
without sacrificing our other freedoms and needs.




                                

    Material from the Anti-Defamation League (ADL) submitted by the 
 Honorable Steve Cohen, a Representative in Congress from the State of 
  Tennessee, and Ranking Member, Subcommittee on the Constitution and 
                             Civil Justice



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