[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]



 
                 RELIGIOUS FREEDOM RESTORATION ACT AND
                       THE RELIGIOUS LAND USE AND
                     INSTITUTIONALIZED PERSONS ACT
=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 13, 2015

                               __________

                            Serial No. 114-9

                               __________

         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
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   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
RAUUL LABRADOR, Idaho                HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           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

                  RON DeSANTIS, Florida, Vice-Chairman

STEVE KING, Iowa                     STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
JIM JORDAN, Ohio                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel
                            C O N T E N T S

                              ----------                              

                           FEBRUARY 13, 2015

                                                                   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 John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3
The Honorable Bob Goodlatte, Jr., a Representative in Congress 
  from the State of Virginia, and Chairman Member, Committee on 
  the Judiciary..................................................     4
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     5

                               WITNESSES

Lori Windham, Senior Counsel, The Becket Fund for Religious 
  Liberty
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom
  Oral Testimony.................................................    22
  Prepared Statement.............................................    24
Nelson Tebbe, Professor of Law, Brooklyn Law School
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38
Craig L. Parshall, Special Counsel, American Center for Law & 
  Justice
  Oral Testimony.................................................    46
  Prepared Statement.............................................    48

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material 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.............    75

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from the Anti-Demation League (ADL).......................    90
Prepared Statement of Kimberlee Wood Colby, Director, Center for 
  Law and Religious Freedom, Christian Legal Society.............    96
Prepared Statement of Carl H. Esbeck, R.B. Price Professor and 
  Isabelle Wade & Paul C. Lyda Professor Emeritus, School of Law, 
  University of Missouri.........................................   111
Prepared Statement of Rachel Laser, Deputy Director, Religious 
  Action Center of Reform Judaism................................   123
                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Material for the Record submitted by the Honorable Steve Cohen, a 
    Representative in Congress from the State of Tennessee, and Member, 
    Committee on the Judiciary. This material is available at the 
    Subcommittee and can also be accessed at:

     http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=102957

Laycock Amicus Brief:

     http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=102957


   RELIGIOUS FREEDOM RESTORATION ACT AND THE RELIGIOUS LAND USE AND 
                     INSTITUTIONALIZED PERSONS ACT

                              ----------                              


                       FRIDAY, FEBRUARY 13, 2015

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 9:37 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Trent 
Franks (Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Goodlatte, DeSantis, 
Gohmert, Jordan, Cohen, Conyers, Nadler and Deutch.
    Staff Present: (Majority) John Coleman, Counsel; Tricia 
White, Clerk; (Minority) James Park, Subcommittee Chief 
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 morning. The quest for true religious freedom is one 
of humanity's greatest and most enduring dreams. Indeed, 
America's forebears fled the tyrannies of religious oppression 
abroad in the longing hope that America would be the place 
where they would find that freedom yearned for in every human 
heart to live according to the convictions of their faith.
    Our Founding Fathers recognized and protected this 
foundational human right by enshrining it forever in the very 
first amendment to the United States Constitution. It states 
very simply and clearly that ``Congress shall make no law 
respecting an establishment of religion or prohibiting the free 
exercise thereof.''
    Those noble, straightforward words, because of their 
enormous meaning and implication, have often been the target of 
distortion and attack. In 1990, the Supreme Court handed down 
the Employment Division v. Smith decision. It set the bar so 
low in allowing for the Government's infringing on religious 
freedom, that in many cases individuals could not successfully 
challenge overreaching laws that contradicted their faith. The 
Smith decision was widely regarded as one of the most radical 
departures from this long-settled Constitutional doctrine in 
American history.
    In response to the Smith decision, with incredibly broad 
bipartisan support, Congress passed the Religious Freedom 
Restoration Act in 1993. That law restored the pre-Smith 
compelling interest standard, and along with it, religious 
liberty in America.
    And in 2000, in direct response to another Supreme Court 
decision that threatened religious liberty, Congress passed the 
Religious Land Use and Institutionalized Persons Act, which 
prohibits the application of neutral and generally applicable 
laws in ways that substantially burden religion related to 
zoning, land marking, and prisons.
    In his written testimony before the Senate Judiciary 
Committee on September 18th, 1992, Professor Douglas Laycock 
stated, ``there is a simple reason why formerly neutral laws 
sometimes lead to religious persecution: because once 
government demands that religious minorities conform their 
behavior to secular standards, there is no logical stopping 
point. Sometimes the government will back off and create an 
exemption, but often the bureaucracy will grind forward, and 
persecution will be the result.''
    These critical statutes exist today because a broad group 
of lawmakers, organizations and Americans from both sides of 
the aisle believe that religious freedom was and is far more 
vital than that afforded by those profoundly flawed Supreme 
Court decisions. Support for religious freedom remains one of 
the very strongest commitments of the American people. 
According to a December 2012 Gallup Poll, nearly 70 percent of 
American adults are very religious or moderately religious, 
based on self-reports of the importance of religion in their 
daily lives and attendance at religious services.
    Despite its critical importance to our Republic and a clear 
message from Congress and the American people, this current 
Administration's attitude toward religious freedom is nothing 
short of alarming. The Obama administration has consistently 
failed to recognize that religious liberty involves much more 
than the freedom to believe in any religion or none at all, 
rather, that religious liberty is exercised both in private and 
in public, informing all areas of an individual's life.
    Religion in the United States has never been forcibly 
confined to one's church or one's home. In spite of the 
Constitution's clear provisions for the accommodation of 
religion, this Administration has repeatedly failed to create 
and honor needed religious exemptions from otherwise neutral 
laws.
    In the last 3 years, the United States Supreme Court has 
ruled in favor of religious plaintiffs and against this 
Administration five times. Indeed, three of those five cases 
have been unanimous. This is stunning evidence of the Obama 
administration's failure to honor religious freedom in America.
    My friends, the central phrase, the central phrase of 
America's Declaration of Independence is itself a statement of 
religious conviction. It states clearly that we are all 
created, and that is what makes us equal, and further, that 
each of us is endowed by our creator with the unalienable 
rights of life, liberty and the pursuit of happiness. It is so 
unfortunate that we must repeatedly remind the Obama 
administration that religious freedom is the very cornerstone 
of all other freedoms and that if it is lost, all other 
freedoms will ultimately be lost with it.
    I look forward to today's examination of the Religious 
Freedom Restoration Act and the Religious Land Use and 
Institutionalized Persons Act. And I would like to thank our 
witnesses for being here.
    And I will now yield to the distinguished Ranking Member of 
the full Committee for an opening statement.
    Mr. Conyers. Thank you, Chairman.
    Members of the Committee, religious freedom, of course, was 
one of the core principles upon which our Nation was founded. 
This freedom was important enough that protections against 
unwarranted government intrusion into religious practice was 
enshrined in the First Amendment to our Constitution, and that 
is also why, after the Supreme Court in Employment Division v. 
Smith eliminated the compelling interest test for scrutinizing 
free exercise clause claims, a bipartisan coalition helped to 
shepherd the Religious Freedom Restoration Act of 1993 into law 
to restore those earlier protections.
    The act has successfully helped to protect religious 
liberty over the last generation, yet recent developments have 
been troubling for those of us who believe that exemptions from 
generally applicable laws shouldn't be used to undermine 
women's health or the guarantee of equal treatment under the 
law. Unfortunately, in my view, the Supreme Court subverted 
congressional intent and undermined the act's purpose in 
Burwell v. Hobby Lobby. In that decision, the court held that 
for-profit corporations were entitled to an exemption under the 
Religious Freedom Restoration Act from the Affordable Care 
Act's contraception mandate because of the corporate owner's 
religious objection to the mandate.
    To reach that holding, the court had to conclude that the 
precedents governing the Free Exercise Clause prior to Smith no 
longer governed interpretations of the Religious Freedom 
Restoration Act. That conclusion, to me, is contrary to what 
Congress intended when it passed the act. Indeed, the statute 
itself unambiguously made clear that its purpose was to restore 
the compelling interest test that applied to governmental 
burdens on the free exercise of religion prior to Smith.
    Pre-Smith law was clear that commercial enterprises were 
not entitled to religious exemptions under the Free Exercise 
Clause. Also, as Justice Ginsburg noted in her strong dissent, 
no Constitutional tradition nor any prior decision interpreting 
this act allowed religious exemptions when such an 
accommodation harmed third parties. Yet that is exactly what 
happened in Hobby Lobby when the court denied contraceptive 
coverage to the company's women employees and shifted the costs 
of Hobby Lobby's religious accommodation onto those women.
    A particularly troubling implication of the court's broad 
and unsupported interpretation of the Religious Freedom 
Restoration Act is that for-profit commercial entities can now 
seek exemptions from other generally applicable laws, including 
anti-discrimination laws. This clear threat to anti-
discrimination laws could include efforts by businesses to 
exempt themselves under State versions of the Religious Freedom 
Restoration Act from State and local laws prohibiting 
discrimination on the basis of sexual orientation or gender.
    It could also manifest itself in efforts by for-profit 
businesses to exempt themselves from any Federal efforts to 
combat discrimination against members of the lesbian, gay, 
bisexual and transgender communities, such as President Obama's 
executive order prohibiting discrimination against such 
individuals who are employees of Federal contractors.
    And notwithstanding the assurances of the court's Hobby 
Lobby majority, it is entirely possible that a business 
claiming a sincerely held religious belief, for example, in 
White supremacy, could justify exemptions from Federal civil 
rights laws.
    At the very least, we in Congress must examine how the 
Religious Freedom Restoration Act can be amended to address the 
very problematic reasoning of the Hobby Lobby decision.
    While there is broad bipartisan support for the Religious 
Freedom Restoration Act and for strong protection of religious 
liberty, we have to acknowledge that we live in a pluralistic 
and religiously diverse society.
    The act was meant to protect all, not to favor some at 
others' expense, and so at a minimum, we here should amend the 
act to address third-party harm to make clear that pre-Smith 
Free Exercise Clause precedents apply and limit the act's 
interpretation.
    I thank you, Mr. Chairman.
    I yield back the balance of my time.
    Mr. Franks. And I thank the gentleman.
    And I now yield to the Chairman of the full Committee, Mr. 
Goodlatte, from Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    In 1777, Thomas Jefferson drafted a bill for establishing 
religious freedom. Introduced in the Virginia General Assembly 
in 1779, it was enacted into law on January 16, 1786, as the 
Virginia Statute for Religious Freedom. Last month we honored 
the Virginia Statute for Religious Freedom's 229th anniversary.
    This Virginia law remains relevant today. In addition to 
being a model for the Free Exercise Clause of the First 
Amendment, its language continues to provide wisdom. The 
statute, for example, states in part, the opinions of men are 
not the object of civil government, nor under its jurisdiction.
    This morning the Subcommittee on the Constitution and Civil 
Justice will examine the Religious Freedom Restoration Act and 
the Religious Land Use and Institutionalized Persons Act. These 
two laws are vitally important means of protecting religious 
liberty in the United States and individuals' opinions from an 
interceding government.
    The Religious Freedom Restoration Act prohibits the Federal 
Government from substantially burdening a person's exercise of 
religion even if the burden results from a rule of general 
applicability. The exception is that the government may burden 
a person's exercise of religion only if it demonstrates that 
application of the burden to the person, one, furthers a 
compelling governmental interest, and two, is the least 
restrictive means of furthering that compelling governmental 
interest.
    I cosponsored this legislation when the Religious Freedom 
Restoration Act passed the House and Senate and was signed by 
the President in the 103rd Congress, and I was amazed at the 
incredible bipartisan support the bill generated. Senator 
Charles Schumer, who was then representing the Ninth District 
of New York in the House and a Member of this Committee, 
introduced the bill. By the time the bill passed by a voice 
vote, it had the support of 170 cosponsors from both sides of 
the aisle.
    A diverse array of organizations formed a bipartisan 
coalition to support this bill. This coalition included over 50 
organizations, including the American Civil Liberties Union, 
Americans United for the Separation of Church and State, the 
Home School Legal Defense Association, the Traditional Values 
Coalition, Concerned Women for America, and the Christian Life 
Commission of the Southern Baptist Convention. It was 
incredible to see all sides come together for such an important 
piece of legislation.
    Reflecting the same language as the Religious Freedom 
Restoration Act, the Religious Land Use and Institutionalized 
Persons Act prohibits any government from imposing or 
implementing a land use regulation in a manner that places a 
substantial burden on the religious exercise of a person, 
including a religious assembly or institution, unless the 
government demonstrates the burden, one, is in furtherance of a 
compelling governmental interest, and two, is the least 
restrictive means of furthering that compelling governmental 
interest.
    It provides a similar religious protection for 
institutionalized persons, including prisoners. Congress made 
it clear that the Federal Government must provide religious 
accommodations in our laws, and any laws passed that infringe 
upon religious freedom must be subject to the strictest 
scrutiny in our courts.
    And while religious liberty remains threatened, I am 
nevertheless encouraged by recent Supreme Court decisions in 
favor of religious plaintiffs. These cases indicate the 
religious protections passed by Congress are working. While not 
determining the outcome of any case, these crucial statutes 
provide individuals with practical and meaningful ways to 
challenge government infringements on their religious beliefs 
in court.
    I want to thank all of our witnesses for coming today and I 
look forward to their testimony.
    Thank you, Mr. Chairman.
    Mr. Franks. And I thank the gentleman.
    And I now yield to the Ranking Member of the Subcommittee, 
Mr. Cohen, from Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman.
    Today is the first hearing of this particular Subcommittee, 
and I am the Ranking Member again, and I appreciate that 
opportunity to serve, and I appreciate serving with Chairman 
Franks. We have served together as Chair and Ranking Member, 
and this is a Committee that gets some very emotional issues 
where people have strong opinions on each side, and yet Mr. 
Franks has always remained civil and respectful toward the--our 
side, despite the fact that his opinions are light years away. 
It is a large universe and we encompass it, but we do it in a 
good manner, and I appreciate that.
    The freedom to practice one's religious free from undue 
governmental influences is particularly special in American 
history, and the First Amendment guarantees the right to 
freedom of religion, along with speech and petition, and our 
First Amendment protections. And Thomas Jefferson, as Mr. 
Goodlatte mentioned, he is a big fan of Jefferson's, as am I, 
has on his resting place in Virginia three things: that he was 
the father of the Constitution, that he was the founder of the 
University of Virginia, and that he was the author of the 
declaration of religious independence or freedoms; nothing 
about being President or Secretary of State or any of those 
things, they were mundane, because it was values and ideas and 
education and liberty and freedom that was so important to him.
    He has on the Jefferson Memorial, of course, he doesn't 
have this, the descendants have this, one of his particular 
quotes is that, ``I swear upon the altar of God eternal 
hostility toward all forms of tyranny over the mind of man.''
    It is important that we understand that as our Founding 
Father's legacy and that we adhere to it, and we did in passing 
the Religious Freedom Restoration Act here. I was not here at 
the time. Mr. Goodlatte was.
    But I was in the Tennessee State Senate, and I passed the 
Tennessee RFRA law and I was proud to do it. And there was that 
great coalition, as he mentioned here, of the ACLU to the 
Southern Baptist Convention, or something associated therewith, 
and all kind of diverse religious groups and folks about the 
First Amendment were all for it. And that was wonderful. And it 
was about, really, Employment Division v. Smith, and it was a 
direct reaction to that case that RFRA was passed with this 
broad bipartisan support and that we passed it in Tennessee as 
well.
    Unfortunately, our Supreme Court, in its corporatization of 
America, which of course has also been part of the work of this 
Congress, took religious freedom from the ideas that were 
really held by Jefferson and others about individuals being 
oppressed by the government and gave it to corporations, and 
nobody had ever envisioned that, like nobody had envisioned 
corporations having the right to have free speech, free speech 
in the thousands and hundreds of thousands and millions of 
dollars to influence legislation and who gets elected and how 
the laws are made so that the tax rates are appropriate for 
those who have much so they could have much more and do much 
more trickle-down.
    So the corporatization of America has taken place, and the 
courts did it in this case, and that is what happened and what 
broke apart that great bipartisan coalition that we were so 
proud of in passing RFRA.
    To be concerned about the Hobby Lobby case, which is part 
of a whole series of cases with the Supreme Court and 
legislative actions that nobody would have envisioned, giving 
corporations rights and worshiping to the altar of the 
corporate god does not mean you are against religion. You can 
still be for religion.
    And I am for religion and I'm for the separation of church 
and state and I'm for the First Amendment and I'm for RFRA as 
it was envisioned when it was passed and restore those pre-
Smith laws, but the Hobby Lobby decision was aberrant, and 
that's why I and many other people who have deep--thought and 
felt commitments to religious liberty oppose Hobby Lobby 
decision, they still believe in RFRA, and they just think RFRA 
went too long.
    It was an activist court, activist in the worst way, 
activists that gave powers to people that we never envisioned; 
not activists that went far to give minorities opportunity and 
minorities rights. It went far to give corporations rights. 
That's the wrong type of activism, in my opinion.
    But I look forward to this hearing and listening to all of 
the witnesses and working with Mr. Franks as we go forward.
    Mr. Goodlatte. Would the gentleman yield?
    Mr. Cohen. Yes, sir.
    Mr. Goodlatte. I thank the gentleman for yielding.
    I appreciate his admiration of Thomas Jefferson, as I have.
    I do want to get his tombstone correct, though. He did--he 
is identified on his tombstone as the author of the Declaration 
of Independence and the Virginia Statute for Religious Freedom, 
but he did not have any involvement in the writing of our 
Constitution. He was our ambassador to France. Instead, the 
third item is the establishment----
    Mr. Cohen. University of Virginia.
    Mr. Goodlatte [continuing]. Of the University of Virginia.
    Mr. Cohen. I thought I said that. Let's take a vote. How 
many of you think I said University of Virginia? Raise your 
hand. You're right. Vote's over.
    Thank you, though.
    Mr. Goodlatte. I thank the gentleman.
    Mr. Franks. The man is from Virginia.
    Let me now introduce our witnesses. Our first witness is 
Lori Windham, senior counsel at the Becket Fund For Religious 
Freedom--for Religious Liberty. Ms. Windham has represented a 
variety of religious groups at every level, from the district 
courts to the Supreme Court. Her work includes the cases under 
the Free Exercise Clause, Establishment Clause, RFRA, and 
RLUIPA. We're glad you're here.
    Our second witness is Gregory 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.
    Our third witness, Professor Nelson Tebbe, teaches courses 
on Constitutional law, religious freedom, legal theory, and 
professional responsibility at Brooklyn Law School. Professor 
Tebbe is a co-organizer of the annual Law and Religion 
Roundtable and has previously served as the chair of the Law 
and Religion section of the Association of American Law 
Schools.
    Our fourth and final witness, Craig Parshall, is special 
counsel to the American Center for Law and Justice. In addition 
to being a senior law and policy advisor to Washington, D.C.-
based groups, Mr. Parshall writes and speaks about trends in 
Constitutional issues, culture, religion and media technology. 
He previously served as senior vice-president and general 
counsel at National Religious Broadcasters and was the founding 
director of the John Milton Project for Free Speech. Welcome, 
sir.
    Now, each of the witness' written statements will be 
entered into the record in its entirety, and I would ask each 
witness to summarize his or her testimony within 5 minutes or 
less. To help you stay within that time, there is a timing 
light in front of you. The lights will switch from green to 
yellow in concluding, indicating that you have 1 minute to 
conclude your testimony. When the light turns red, it indicates 
that the witness' 5 minutes have expired.
    Before I recognize the witness, it is the tradition of the 
Subcommittee that they be sworn. So if you'd please stand to be 
sworn.
    Do you solemnly swear that the testimony that you are about 
to give will be the truth, the whole truth and nothing but the 
truth, so help you God?
    You may be seated.
    Let the record reflect that the witnesses answered in the 
affirmative.
    I now recognize our first witness, Ms. Windham. And, Ms. 
Windham, if you want to make sure we turn on that microphone 
before you start. Yes, ma'am.

          TESTIMONY OF LORI WINDHAM, SENIOR COUNSEL, 
             THE BECKET FUND FOR RELIGIOUS LIBERTY

    Ms. Windham. Thank you, Chairman Franks, vice-chairman 
DeSantis, and other distinguished Members of the Subcommittee. 
Good morning.
    Thank you for the invitation and opportunity to testify on 
the importance of the Religious Freedom Restoration Act and the 
Religious Land Use and Institutionalized Persons Act.
    I represent the Becket Fund for Religious Liberty, where I 
serve as senior counsel. The Becket Fund is a non-profit public 
interest law firm dedicated to protecting the free expression 
of all religious traditions. For over 20 years, it has defended 
clients of all faiths, including Buddhists, Christians, Jews, 
Hindus, Muslims, Native Americans, Sikhs and other faith 
groups.
    Its recent cases include three major Supreme Court 
victories: a unanimous ruling in a RLUIPA case, Holt v. Hobbs; 
the RFRA case of Burwell v. Hobby Lobby; and another unanimous 
ruling in Hosanna-Tabor v. EEOC.
    Today I'd like to highlight the positive impacts of RFRA 
and RLUIPA for protecting the rights of Americans of all 
faiths, well known and little known, large and small. One 
example. According to documents released by the Department of 
the Interior, the department had an operation called Operation 
Pow-Wow.
    Under Operation Pow-Wow, the department sent an undercover 
Federal agent to covertly enter a sacred Native American 
religious ceremony. While there, he questioned the 
participants, observed the ceremony, refused to leave after 
being asked to do so. The reason for this, the department was 
looking to see if the Native Americans in their religious 
ceremony were using permitted or non-permitted eagle feathers. 
The Becket Fund now represents Robert Soto, a renowned feather 
dancer and ordained religious leader in the Lipan Apache tribe, 
a tribe that has used eagle feathers as sacred emblems for 
centuries.
    Federal law grants eagle feather permits to museums, 
scientists, zoos, farmers and other interests. It even allows 
wind farms to kill eagles. The Federal Government grants 
permits for some religious uses, but only if the person is a 
member of a federally-recognized tribe. Mr. Soto's tribe is 
recognized by historians, sociologists and the State of Texas, 
but not by the Federal Government. He is not even allowed to 
use loose eagle feathers picked up off the ground.
    Applying RFRA and Hobby Lobby precedent, the Fifth Circuit 
ruled against Operation Pow-Wow and for Mr. Soto. Mr. Soto is 
currently continuing his case in Federal court. As this case 
shows, RLUIPA's protections, RFRA's protections are still vital 
today.
    When RFRA was passed in 1993, the bill was supported by one 
of the broadest coalitions in recent political history, with 66 
religious and civil liberties groups, including Christians, 
Jews, Muslims, Sikhs, humanists, and secular civil liberties 
organizations. RFRA passed with unanimous support in the House 
and virtually unanimous support in the Senate.
    RLUIPA, like RFRA, was enacted with overwhelming bipartisan 
support. It passed both the House and Senate by unanimous 
consent. In his signing statement, President Clinton noted that 
RLUIPA once again demonstrates that people of all political 
bents and faiths can work together for a common purpose that 
benefits all Americans.
    RLUIPA has provided critical protections for religious 
exercise. The Supreme Court's recent decision in Holt v. Hobbs, 
another Becket Fund case, is an excellent example. There, the 
Supreme Court used RLUIPA to protect a Muslim prison inmate who 
sought to grow a religiously mandated half-inch beard. The 
Court recognized that government bureaucrats cannot use 
arbitrary double standards granting secular exemptions but not 
similar religious exemptions.
    The unanimous Supreme Court explained that RLUIPA affords 
prison officials ample ability to maintain security. At the 
same time, RLUIPA requires government officials to scrutinize 
the asserted harm of granting specific exemptions to particular 
religious claimants. This is consistent with the statement made 
by RLUIPA's sponsors, Senators Hatch and Kennedy, who 
emphasized that inadequately formulated prison regulations and 
policies grounded on mere speculation, exaggerated fears, or 
post hoc rationalizations will not suffice to meet the act's 
requirements.
    RLUIPA's land use provisions have allowed houses of worship 
across the Nation to escape discriminatory or substantially 
burdensome land use restrictions. RLUIPA protected a Muslim 
congregation in New Jersey after the City labeled the proposed 
mosque a public nuisance and tried to seize its land.
    One of the earliest RLUIPA victories was for a Christian 
church in California when the City attempted to seize its land 
and build a Costco in its place. RLUIPA also protected a Sikh 
temple when a local government repeatedly gave contradictory 
reasons for denying its land use applications.
    Protection for religious freedom, even when religious 
practices conflict with otherwise applicable law, is an 
important part of our Nation's history. We applaud Congress' 
commitment to the principle that religious freedom is 
fundamental human freedom and human dignity.
    I thank you for your time and I look forward to answering 
your questions.
    Mr. Franks. Well, thank you, Ms. Windham.
    [The prepared statement of Ms. Windham follows:]
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                                 __________
                               
    Mr. Franks. And I would now recognize our second witness, 
Mr. Baylor. And, sir, please turn on your microphone. You got 
it.

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

    Mr. Baylor. Thank you. 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, marriage and the family through strategy, 
funding, training and litigation.
    I appreciate very much the opportunity to testify today 
regarding the Religious Freedom Restoration Act and the 
Religious Land Use and Institutionalized Persons Act. I will 
focus my testimony on RFRA.
    In response to a damaging and unexpected Supreme Court 
decision, Congress restored robust legal protection for 
religious exercise when it enacted the Religious Freedom 
Restoration Act in 1993. The coalition supporting RFRA and the 
foundational principles underlying it was remarkably broad and 
diverse.
    Over 20 years later, support for those principles and 
perhaps for RFRA itself has notably waned in some quarters. 
Given this unfortunate development, I think, I believe that a 
look back at RFRA's enactment and the circumstances surrounding 
it is warranted.
    Beginning in 1963, the United States Supreme Court held 
that government burdens on religious exercise violate the First 
Amendment's Free Exercise Clause unless those burdens are 
justified by interests of the highest order. Under this 
approach, the court protected, for example, the rights of a 
Seventh Day Adventist who declined work on her sabbath, and it 
protected the rights of Old Order Amish families to make 
religiously-based decisions about the schooling of their 
children.
    In each case, the court understood that most government 
burdens on religious exercise come from facially neutral and 
generally applicable laws, ones that do not single out religion 
for especially disfavored treatment. The court acknowledged 
also that although important government interests were behind 
the laws in question in these cases, the State failed to prove 
that exempting these claimants would unacceptably danger what 
the court called paramount interests. The court also indicated 
that government could use other, less restrictive means to 
pursue its stated goals.
    The Supreme Court, of course, unexpectedly abandoned this 
approach to free exercise in 1990 in Employment Division v. 
Smith, as has been said. The court concluded that facially 
neutral laws of general applicability burdening religious 
exercise generally require no special justifications to satisfy 
Free Exercise Clause scrutiny.
    A large number of religious and civil rights organizations 
promptly formed the Coalition for the Free Exercise of Religion 
to urge Congress to restore strong legal protections for 
religious liberty. The 68-member, or 66- or 54-, I've heard 
different numbers, member coalition included the Baptist Joint 
Committee for Religious Liberty, the American Jewish Congress, 
Americans United for Separation of Church and State, Christian 
Legal Society, the American Civil Liberties Union, Agudath 
Israel of America, and the National Association of 
Evangelicals. The coalition drafted and advocated for 
legislation designed to restore strict scrutiny to Free 
Exercise cases. Large numbers of Congressmen and Senators from 
both sides of the aisle co-sponsored RFRA.
    Lawmakers and advocates for the bill emphasized a number of 
key themes. First, they observed that pervasive governmental 
regulation adversely affects adherents of all faiths, large or 
small.
    Second, they stressed that RFRA merely set forth the 
relevant test that judges and other government officials should 
apply when examining claims of free exercise. RFRA didn't 
dictate the results in particular cases.
    Third, and relatedly, and I think this goes to some of the 
comments that have already been made, Congress and RFRA's 
diverse supporters were well aware that the statute's 
protections might be relevant in cases involving emotionally 
charged, so-called culture war issues.
    Congress subsequently voted overwhelmingly to enact RFRA. 
It passed the Senate, as has been said, by a vote of 97 to 3, 
and it passed the House by unanimous voice vote.
    Now, recounting this history I hope will help serve as a 
corrective to the current impulse to doubt the wisdom of that 
Congress and of the very broad spectrum of individuals and 
organizations who labored to restore adequate legal protection 
of religious exercise.
    That impulse is driven in no small part by the Supreme 
Court's relatively recent decision in Burwell v. Hobby Lobby 
Stores. In that case, of course, the court held that the 
Federal Government violated RFRA by threatening to impose 
crippling fines upon family business owners who refused, for 
reasons of conscience, to include abortion-inducing drugs and 
devices in their employee health plans.
    Unhappiness with the outcome of that case has contributed 
to a growing skepticism, even hostility, toward RFRA and its 
underlying principles; indeed, those that have--that would have 
partially repealed RFRA were introduced last summer in the wake 
of the Hobby Lobby decision. Thankfully, RFRA survived.
    I urge Congress to resist any further efforts to undermine 
the Religious Freedom Restoration's Act indispensable 
protection of our first freedom.
    Thank you again for the opportunity to testify. I look 
forward to addressing any questions Members of the Subcommittee 
may have.
    Mr. Franks. And thank you, Mr. Baylor.
    [The prepared statement of Mr. Baylor follows:]
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                      __________
    Mr. Franks. And I would now recognize our third witness, 
Mr. Tebbe.
    Mr. Tebbe, please turn your microphone on.

   TESTIMONY OF NELSON TEBBE, PROFESSOR OF LAW, BROOKLYN LAW 
                             SCHOOL

    Mr. Tebbe. Good morning, Chairman Franks and distinguished 
Members of the Subcommittee.
    Thank you for the opportunity, for allowing me to testify 
on these important questions of religious freedom and equality 
law. It's an honor to be here, and I look forward to answering 
your questions.
    At least since the Supreme Court's recent decisions in 
Hobby Lobby and Holt v. Hobbs, debate has been intensifying 
concerning the two statutes that we are discussing today, the 
Religious Freedom Restoration Act, or RFRA, and the Religious 
Land Use and Institutionalized Persons Act, or RLUIPA.
    In my testimony, I would like to highlight one problem with 
how RFRA has been applied, namely, the Hobby Lobby court 
shifted the cost of accommodating the employer's religious 
beliefs onto the employees, who may not share those beliefs. 
That violated a core principle of Constitutional law. While 
ordinarily the costs of accommodating religious citizens are 
borne by the government or by the public, here those costs were 
shifted onto the shoulders of other private citizens.
    Protecting religious freedom is critically important, but 
it cannot come at the cost of meaningful harm to identifiable 
third parties. Not only should doing that be avoided as a 
policy matter, but it also violates the religion clauses of the 
Constitution.
    There are at least three ways that the Congress could 
address this problem. First, it could amend RFRA and RLUIPA to 
make them inapplicable when accommodating religious actors 
shifts meaningful harm to identifiable private citizens.
    Second, it could amend the statutes to make them 
inapplicable to commercial actors, which tend to have 
significant impact on individuals and on the public.
    Third, Congress could clarify that it did not intend RFRA 
and RLUIPA to break completely with judicial precedence under 
the Free Exercise Clause, case law that embodies the 
Constitutional principle I have been describing.
    Each of these changes would improve the statutes by 
ensuring that their application conforms with Constitutional 
principle against shifting costs of religious freedom for some 
private citizens onto the shoulders of other private citizens.
    In its Establishment Clause cases, the Court has 
invalidated laws that accommodate religious people by shifting 
costs to others. For example, the court invalidated a 
Connecticut statute that required all employers to allow 
employees who observe a sabbath to take that holiday off. The 
court held that Connecticut law ``contravenes a fundamental 
principle of the religion clauses, namely, that the First 
Amendment gives no one the right to insist that in pursuit of 
their own interests, others must conform their conduct to his 
own religious necessities.''
    In its Free Exercise cases, similarly, the court has denied 
relief that would mean harming other private citizens. For 
example, the court refused to grant an exemption to an Amish 
employer who is theologically opposed to paying Social Security 
taxes on behalf of his employees. The court held that granting 
the exemption would impose an unacceptable cost on the third-
party employees.
    So this legal rule is grounded both in the Establishment 
Clause and in the Free Exercise Clause, and it's properly part 
of RFRA and RLUIPA.
    The principal difficulty with the court's landmark decision 
in Hobby Lobby is that it did not do enough to protect the 
company's 13,000 employees and their dependents. Doctrinally, 
the court reaffirmed the principle I have been describing, but 
nothing in the decision made its ruling contingent on the 
employees not being harmed, and, in fact, those employees are 
being harmed right now as we hold this hearing.
    Although the Obama administration is working on 
implementing the solution that the court suggested in its 
opinion, that solution has not yet been put in place. Not only 
employees at Hobby Lobby itself, but the employees at other 
companies affected by the decision are therefore currently 
without contraception coverage. These thousands of people have 
suffered harm that may well be irreparable, including unwanted 
pregnancies and other health problems that medical experts 
sought to address in the regulation.
    Importantly, not every accommodation of religion imposes 
harm on third parties; therefore, this limitation will not 
frustrate religious freedom writ large. A good example is the 
court's recent decision in Holt v. Hobbs, which I applaud. 
There, a unanimous court held that RLUIPA required a prison to 
accommodate an inmate, who wished to grow a short beard for 
religious reasons. Allowing him to do that, despite the 
prison's grooming policies, shifted no security risks to other 
fellow inmates. Justice Ginsburg, joined by Justice Sotomayor, 
wrote separately in Holt to emphasize both that third parties 
were harmed in the Hobby Lobby decision and that no one would 
be harmed by the decision in Holt v. Hobbs.
    As I mentioned, there are at least three ways that Congress 
could address this problem. The most direct way would be the 
one that Representative Conyers suggested: to amend RFRA and 
RLUIPA to clarify that religion accommodations are not 
available where extending them would shift meaningful harm to 
identifiable third parties. RFRA itself is in need of a 
restoration. This amendment would return its meaning to 
something that can claim much wider public and bipartisan 
support than the interpretation that the Supreme Court has 
given it in Hobby Lobby.
    Thanks very much for your time.
    Mr. Franks. And thank you, Mr. Tebbe.
    [The prepared statement of Mr. Tebbe follows:]
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                   __________
    Mr. Franks. And I would now recognize our fourth and final 
witness, Mr. Parshall.

   TESTIMONY OF CRAIG L. PARSHALL, SPECIAL COUNSEL, AMERICAN 
                    CENTER FOR LAW & JUSTICE

    Mr. Parshall. And thank you, Mr. Chairman, and Ranking 
Member Mr. Cohen, and distinguished Members of the 
Subcommittee.
    On behalf of the American Center for Law and Justice, thank 
you for allowing me to address this very important subject of 
religious freedom under the Religious Freedom Restoration Act, 
RFRA. Like my colleague, I will focus specifically on RFRA in 
my testimony.
    I make three primary points. First of all, the language of 
RFRA must not be diminished. If anything, it ought to be 
expanded to apply to other situations, some of which I have 
mentioned in my written testimony. I believe, with all due 
respect, that all three of the suggestions of Professor Tebbe 
to amend RFRA would not only diminish, but probably 
substantially undermine the religious liberty rights recognized 
by RFRA. I'd be glad to address those in any questions that 
you've got.
    Second of all, the success of RFRA itself is proven in a 
number of different ways; first of all, by the cases that have 
been mentioned by my colleagues at the dais today, but also, of 
course, by the Hobby Lobby decision by the Supreme Court, but 
the necessity, the necessity of RFRA is proven by the Olympian, 
near impossible legal hurdle that a person has to pass in order 
to vindicate their religious rights without RFRA, ever since 
the Smith decision of the Supreme Court. And I'd just mention 
one case to prove my point about how high that hurdle would be, 
but for RFRA. The case was LeBlanc-Sternberg v. Fletcher, a 
Second Circuit Court of Appeals decision.
    Now, while RFRA was being debated in Congress, a village in 
New York state was being formed and a zoning code was being 
created, the evidence showed, for the specific purpose of 
keeping Orthodox Jewish citizens out of that area. Despite 
that, the U.S. District Court entered a judgment as a matter of 
law against the Orthodox Jewish plaintiffs. I was retained to 
argue the appeal in the Second Circuit Court of Appeals. We 
were fortunate to get that decision reversed and the religious 
rights of those Orthodox Jewish citizens were vindicated.
    But it was decided on a Free Exercise claim, not RFRA, 
because RFRA was not applied in that case. But the only reason 
that we prevailed is because the village officials made the 
mistake tactically of having a flood tide of anti-Semitic 
evidence in the record and then corroborated by the way in 
which they gerrymandered their zoning code to make sure that 
Jewish citizens could not have in-home synagogue worship.
    But that kind of a situation, individual specific targeting 
of religious groups, is very, very rare. Invidious anti-
religious discrimination is usually much more covert than that, 
and without RFRA, religious rights in those situations would 
have absolutely no method of redress since the Smith case. In 
those cases, like the Holt case, the prison beard case, where 
there's no evidence that there was intentional hostility 
against religious belief, more like a thoughtless bureaucratic 
decision-making that simply failed to understand the high value 
of religious freedom.
    And that brings me to my third point. RFRA, under the 
rubric of the statute, as correctly interpreted by the Supreme 
Court, simply says this: if a Federal regulation, statute or 
action impinges or substantially burdens the sincerely held 
religious beliefs of individuals, then the burden shifts to the 
government to prove, number one, that it has a compelling 
government interest, a very high standard, of an interest, a 
compelling interest that must overcome that religious burden on 
the individuals, and then number two, that there are no lesser 
burdensome alternatives that are available.
    Now, why is that burden-shifting appropriate? It's 
appropriate only if you take a high view of religious liberty. 
If you take a low view, then you will shift, as Professor Tebbe 
has suggested, you will shift the burden on the religious 
person to defend themselves. And I don't think that's what the 
founders intended, and certainly that's not what RFRA was all 
about.
    I pointed out in my written testimony the research data 
that shows how Nations globally around the world that have a 
high value placed on religious liberty have flourished, not 
only in terms of their economies, but in terms of innovation. 
I've also cited some of the clear data that indicates that 
religious America supports an entire private sphere of 
charitable giving that benefits local communities as a result 
of the religious liberty climate thus far, as we have allowed 
it to flourish.
    But, then, that should not come as any surprise. Our 
founders knew how preeminent religious freedom was and ought to 
be. They, in effect, have given us a sacred trust to protect 
it. Now the question is, will we honor that trust?
    Thank you.
    Mr. Franks. Well, thank you, Mr. Parshall.
    [The prepared statement of Mr. Parshall follows:]
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                    __________
    Mr. Franks. And thank you all for your testimony.
    We will now proceed under the 5-minute rule with questions, 
and I will begin by recognizing myself for 5 minutes.
    Mr. Baylor, some have portrayed religious liberty recently 
as a conservative issue, and this was certainly the case after 
the Supreme Court's decision in Hobby Lobby, and much of the 
written testimony here conversely focuses on the bipartisan 
efforts that passed RFRA. And so I'm wondering what, if 
anything, has changed? I mean, isn't religious liberty a 
principle that every American should advocate for?
    What is the reason for the shift since the Hobby Lobby 
case?
    Mr. Baylor. Well, religious liberty absolutely is an issue 
that goes across the aisle and it goes across the ideological 
and religious spectrums. Professor Eugene Volokh recently 
published a piece in the Washington Post where he reminded us 
of the political history of religious exemptions, and he 
pointed out that in the 1960's, when Justice William Brennan 
wrote the Sherbert v. Verner decision, this was essentially a--
what might be characterized as a liberal project to put 
exemptions, to interpret the Free Exercise Clause to provide 
for exemptions from facially neutral, generally applicable 
laws.
    Second, and more fundamentally, as I said before, 
government regulation affects everybody. When you have a 
pervasive Federal Government, State government, local 
government, you can't say that this regulation 
disproportionately affects Republicans rather than Democrats, 
conservatives rather than liberals, Christians rather than 
Jews, Muslims, Sikhs or whoever. That is not true. And that is 
an empirical reality.
    If you go and look at the cases in the reporters, it is 
simply not the case that most RFRA and RLUIPA cases are ones 
that are brought by people on one particular side of the 
spectrum. Just to give some examples, there was recently a law 
in Alabama that prohibited everyone, including churches, 
including the Archdiocese, in--the Catholic Archdiocese in 
Alabama from serving the needs of illegal immigrants. Well, 
they asserted a religious liberty defense to that law. And I 
don't think one would characterize it as a conservative or 
right-wing issue.
    The other RFRA case that reached the Supreme Court prior to 
Hobby Lobby was the O Centro case, which involved a minority 
religion and its use of a scheduled drug in its religious 
ceremonies.
    And, finally, I think it's worth noting, as Professor 
Gregory Sisk has pointed out, that members of minority 
religions tend to do better in RFRA cases than the larger 
religions in this country. So I don't think that this is a 
right-left culture war kind of issue, and I think the 
bipartisan coalition that came together reflects that.
    Now, what has changed? I think the short answer is that 
some folks who were back in the coalition in 1993 have simply 
subordinated religious liberty to other interests and 
objectives.
    Mr. Franks. Well, thank you, sir.
    Mr. Parshall, as we've heard today, both the RFRA and 
RLUIPA have received the overwhelming bipartisan support at the 
time that they were enacted, and I think it's important that we 
not lose sight of the reasons why. In your written testimony, 
you cite data that shows a variety of economic benefits flowing 
to America, and that is if we protect religious freedom in a 
substantial way.
    Now, you're not suggesting that recognizing religious 
freedom is a just a matter of dollar and cents, I know that, 
but is there a greater economic factor? Is this economic factor 
just part of really a bigger set of benefits that are 
recognized when a Nation defends religious freedom?
    Mr. Parshall. Thank you, Mr. Chairman.
    Yes. I think that you've--I think you've hit the nail on 
the head in the sense that while it isn't just a matter of 
dollars and cents in terms of protecting religious liberty, we 
need to know the downside consequences when we diminish year 
after year the rights of religious people and religious 
organizations. Likewise, if we support--with the original 
vision that our founders had the full gamut of religious 
liberties, there are tremendous blessings, tremendous benefits 
that are going to accrue to our Republic. One of them--and I've 
mentioned the economic aspect in my written testimony, but one 
of them is also the happy consequence to other civil liberties.
    As a matter of fact, when you look at the speeches of the 
clergy who supported the move to independence in the 1700's, 
people like John Witherspoon and others, they were absolutely 
convinced that religious liberty and civil liberty were so 
intertwined intrinsically, that if you denied one, you were 
automatically going to deny the other.
    So, as you look at the data about how unfortunately much of 
the American public has lost sight of the history and the 
meaning and the parameters of the Bill of Rights, I think 
there's also a blessing and a benefit to America, not just in 
fortifying religious liberty when we stand for that principle, 
but it will enlighten the fact that, as I've indicated by--
Professor Cox once said, you look at it, the history of the 
Bill of Rights, it started with a spiritual core and moved out 
from there.
    Mr. Franks. Well, thank you, Mr. Parshall.
    And I would now recognize Mr. Cohen for 5 minutes.
    Mr. Cohen. Thank you, Mr. Chairman.
    Since, as I understand it, there's no legislation filed 
that's particularly relevant to the subjects on which we're 
talking, this is more of an academic, intellectual exercise 
rather than a legislative hearing for the purpose of producing 
legislation and changing the law, so I will pursue it in that 
manner.
    First, I want to correct the record, if it needs to be 
corrected, because I think the record ought to be correct. If I 
said author of the Constitution, which if I check with my 
staff, I might have said that, he was obviously the author of 
the Declaration of Independence. And Mr. Goodlatte was in the 
right church, but the wrong pew when he corrected me. If I 
didn't say that, he was just in the wrong church. But I 
definitely had University of Virginia down.
    I'd like to compliment Ms. Windham. You graduated Abilene 
Christian. Is that correct?
    Ms. Windham. Yes, that's correct.
    Mr. Cohen. And then you went to Harvard Law School, right?
    Ms. Windham. Yes, that's correct.
    Mr. Cohen. Is there any other person in the universe with 
that combination of degrees?
    Ms. Windham. Thank you, sir. There have been a few.
    Mr. Cohen. Have there really? Well, great. I knew Abilene 
Christian, but I never knew it reached to Harvard, and you're a 
proud alumna. I'm sure they're very proud of you.
    Mr. Baylor, you've got a lot of Texas history, but it 
didn't tell me where you went to undergraduate school. Where 
did you go to school?
    Mr. Baylor. To Dartmouth College and Duke Law School.
    Mr. Cohen. Duke. I was afraid you were going to say Baylor 
and you were right down----
    Mr. Baylor. We claim we own it, even though we don't.
    Mr. Cohen. But you're from Texas, I take it.
    Mr. Baylor. I'm not, actually.
    Mr. Cohen. You just practiced years there.
    Mr. Baylor. I'm from New York.
    Mr. Cohen. Okay. You practiced a lot there.
    Your group is for the defense of marriage. Is that right?
    Mr. Baylor. Yes.
    Mr. Cohen. That is one of the things you do? The biggest--
the biggest assault on marriage, from time immemorial has been 
adultery. What have--has your group done to attack adultery?
    Mr. Baylor. What was my group done to attack adultery?
    Mr. Cohen. Yeah, because adultery is the root problem with 
marriage. That's what breaks up more marriages than anything, 
is adultery. And if you want to protect marriage, you've really 
got to get to the core, and that's fight adultery.
    Mr. Baylor. I----
    Mr. Cohen. What have you all done to fight adultery?
    Mr. Baylor. I would agree with you, sir, that adultery 
certainly undermines the institution of marriage.
    Mr. Cohen. Right.
    Mr. Baylor. I don't think it's the case that we're in a 
political environment right now where someone could seek to 
criminalize adultery, but ADF does support the family. We work 
with allied organizations that do all that they can to keep 
marriages together, to keep marriages together for the benefit 
of the children and for the folks who are in those marriages.
    Now, ADF as a matter of its own institutional policies 
tries to encourage those who are married to have strong 
marriages.
    Mr. Cohen. What do you think is--what do you think or your 
group thinks is the biggest threat to marriage?
    Mr. Baylor. Well, we haven't published a list of all the 
threats to marriage and ranked them in any form or fashion.
    Mr. Cohen. Well, would you----
    Mr. Baylor. We're dealing--we're dealing with the cultural 
moment. I don't happen to be on the marriage team at ADF, but 
we protect the institution of marriage. We think it's important 
for the upbringing of children. That's why the institution 
exists, is to create an environment in which children can best 
be raised.
    Mr. Cohen. So you're saying that since I'm--I'm 65, and 
I've never married. I've thought about it and I've thought 
about--even this morning, I thought about it, but I haven't 
thought about having children. And so are you suggesting to me 
I should--don't need to get married because I'm not going to 
have children?
    Mr. Baylor. No, not at all. I think you--I encourage you to 
read a book that was published by Professor Robert George at 
Princeton, and his coauthors Ryan Anderson and Sherif Girgis 
where they lay out the case for marriage. And one of the points 
that they make is that sort of the template, the model, the 
ideal of marriage can be one thing, and it doesn't necessarily 
mean that every single marriage has to be geared toward 
procreation and toward protection of children. We're talking 
about setting an ideal setting, a model setting.
    Mr. Cohen. Right. So it's sharing in life and getting 
through the senior years with somebody that you can--who can 
remember what you remembered and, you know, who knows who 
Steely Dan was and all those things.
    Mr. Baylor. Well, I would--I would not agree, and I think 
the authors of that book and other advocates for marriage would 
say that that is not in and of itself the government's interest 
in regulating the institution of marriage. The government does 
not have a particular interest in relationships per se. It has 
an interest in how children are raised, and that's the reason 
why what they call conjugal marriage. I encourage you to read 
that resource. It's very useful.
    Mr. Cohen. Well, life, liberty and the pursuit of 
happiness. The pursuit of happiness could be children, and a 
lot of people it is, I think for our parents hopefully it was, 
and I know a lot of others, but--but pursuit of happiness can 
be just knowing Steely Dan and kind of getting through it all.
    Mr. Baylor. Well, there's been some interesting scholarship 
about what the framers meant when they said ``happiness,'' and 
I suspect it meant something more profound than enjoying a 
Steely Dan concert.
    Mr. Cohen. They certainly weren't like the Beatles, and 
thought happiness was a warm gun, like some people, my 
colleagues think.
    Mr. Baylor. I doubt that.
    Mr. Cohen. Yeah.
    Mr. Baylor. But I think many of the clients that Craig and 
Lori and I represent pursue happiness through their religious 
exercise, and they want protection from the government to be 
able to do that without undue interference. And my concern is 
that without a statute like RFRA that protects us at least from 
the Federal Government, we won't be able, our clients won't be 
able to pursue happiness in the manner they deem fit.
    Mr. Cohen. Mr. Baylor, I appreciate it and I appreciate 
your group.
    And I don't know if you all have suggested that the 
expansion of the definition of marriage to people of the same 
gender would be something that is a threat to marriage, but if 
you have, I would suggest working on adultery, because I think 
there's more of a history there.
    I yield back the balance of my time.
    Mr. Franks. I now recognize the gentleman from Texas, Mr. 
Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I would like to correct the record. And no number of 
votes taken by the gallery will change the facts. But the 
gentleman from Tennessee did say he attributed that one of the 
three things Jefferson wished to be remembered by, as part of 
his memorial or gravestone, was that he was the father of the 
Constitution. That was the gentleman's words. I didn't hear 
which two things he left out.
    But I'm a bit surprised, since all of us are not immune 
from having slips of the tongue, that the gentleman would be so 
contemptuous of Mr. Goodlatte, because the gentleman did say 
that----
    Mr. Cohen. Could I----
    Mr. Gohmert [continuing]. Attribute to Jefferson as being 
father of the Constitution. He wasn't there.
    And I kind of like one of his suggestions when he wrote 
back and said, you know, if I'd been at the Constitution's 
writing, I would have liked to have seen a proposal that no law 
could be passed that had not been on file for a year. And I 
would suggest that might not be a bad rule.
    Mr. Cohen. May I ask the gentleman to yield for a moment?
    Mr. Gohmert. So--and I will not. The gentleman has had over 
10 minutes, and I have had about 2.
    Mr. Cohen. Could I ask the Chair to correct a point?
    Mr. Gohmert. So, at this point----
    Mr. Cohen. I was not contemptuous of Mr. Goodlatte.
    Mr. Gohmert. Mr.----
    Mr. Cohen. I was expressing my fault and saying Mr. 
Goodlatte might have been right. I would not express any----
    Mr. Gohmert. The Chairman needs to get regular order going.
    Mr. Cohen. Well, if we are going to----
    Mr. Gohmert. It is not enough to condemn Mr. Goodlatte or 
belittle him----
    Mr. Franks. The gentleman from Texas is recognized.
    Mr. Gohmert [continuing]. Stealing my time.
    In any event, let me go to what is panel three of the 
Jefferson memorial. ``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 and that 
his justice cannot sleep forever.'' He didn't use the word 
``and.'' I slipped that in.
    Now, Mr. Parshall, you indicated a similar belief, so let 
me ask Mr. Tebbe.
    Do you believe Jefferson and Mr. Parshall, that when you 
threaten religious liberty that you actually are threatening 
civil liberties as well?
    Mr. Tebbe. Yes. I believe that religious freedom is an 
important civil liberty. I think that's common ground among 
many of us here in this room today.
    What disturbs me slightly is the way the story has been 
told, though, of RFRA and RLUIPA by some of my colleagues on 
the----
    Mr. Gohmert. Well, that goes beyond the extent of my 
question. Thank you for wanting to get into that.
    Mr. Baylor, do you have a succinct answer to whether or not 
the threat to religious liberty threatens everyone's civil 
liberty?
    Mr. Baylor. Absolutely. As Chairman Franks said in his 
opening remarks, religious liberty is our first freedom and it 
is the foundation on which all of our freedoms rest. It 
presupposes that there is a God and that we have a duty----
    Mr. Gohmert. Well--and in the First Amendment, do you think 
one portion of the first two clauses is more important than the 
other?
    Mr. Baylor. I do not. I think that the Framers of the First 
Amendment recognized the importance of all parts of the First 
Amendment. They had their own purposes----
    Mr. Gohmert. But you understand the two parts I'm talking 
about, the first two, that----
    Mr. Baylor. Are you referring to Free Exercise and 
Establishment?
    Mr. Gohmert. Yes.
    Mr. Baylor. Yes. Yeah, they are both important to 
protecting liberty----
    Mr. Gohmert. Is one more important than the other? Because 
it seems like the Supreme Court, in more recent times, has 
almost eliminated ``or prohibiting the free exercise thereof.'' 
It seems like that has taken a second seat to this Supreme 
Court.
    Mr. Baylor. Well, obviously, the Employment Division v. 
Smith case was a grave disappointment. And we are grateful that 
Congress responded with the Religious Freedom Restoration Act. 
And they have interpreted correctly, I believe, in the O Centro 
case, 8 to nothing; the Hobby Lobby case, 5-4, a little bit 
closer.
    I would submit, if you're asking about this, that there are 
certain Establishment Clause cases, particularly in the '70s 
and the '80s, that were wrongly decided, and there are still 
some problems out there in Establishment Clause jurisprudence. 
But I think the Court has done some things to correct some of 
its prior errors from the '70s and the '80s.
    Mr. Gohmert. Yeah.
    Ms. Windham, do you have thoughts about religious liberty 
and whether or not infringements on religious liability are a 
real threat to civil liberty?
    Ms. Windham. I believe they are a real threat to civil 
liberty. Religious liberty is a critical component of human 
dignity. It also promotes both diversity and peace in our large 
Nation made up of many faiths.
    Mr. Gohmert. Okay. Thank you.
    My time has expired.
    Mr. Franks. I now recognize the Ranking Member of the full 
Committee, Mr. Conyers, for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    Attorney Tebbe, do you agree that the Religious Freedom 
Restoration Act should not be used to carve out exemptions to 
our Nation's nondiscrimination laws?
    Mr. Tebbe. I do think that's correct, on the whole.
    As I was saying a moment ago, what disturbs me a little bit 
about the way that the story of RFRA and RLUIPA has been told 
by other members of the panel today is that it has not been 
simply a story of unanimous support for those two statutes over 
time, and it is not the case that dissent over how RFRA has 
been applied is a new thing or originated with the Hobby Lobby 
decision.
    Rather, as they well know, the coalition supporting RFRA 
disintegrated in the mid and late 1990's precisely because of 
concerns over civil liberties. Civil rights groups became aware 
that RFRA and RLUIPA, or RFRA in particular, could be used to 
chip away at important civil rights protections, and, at that 
time, particularly concerning housing discrimination. And 
attempts to repass RFRA after it was struck down as applied to 
the States in City of Boerne failed in Congress. It's not that 
the votes weren't unanimous; it's that those attempts failed 
because of these concerns about civil liberties.
    So I think telling the story--it's at least important to 
acknowledge that that happened. Right? If the point of this 
hearing is to build up bipartisan support for these statutes, I 
think it does not help to tell the story in a way that doesn't 
even acknowledge the fact that there was serious concern about 
the impact of these statutes on civil liberties in the 1990's.
    Mr. Conyers. Uh-huh.
    Let me turn to the three ways that were suggested to 
address deficiencies. ``Make RFRA inapplicable to commercial 
action'' is one of them.
    Could you explain if it would help to ameliorate harm to 
third parties but acknowledge that this may be an incomplete 
solution?
    Mr. Tebbe. Sure. I'd be happy to do that.
    One of the unprecedented aspects of the Hobby Lobby 
decision was that it granted an exemption to a corporate actor 
on religious grounds. That had never been done before by the 
United States Supreme Court. It was entirely unprecedented.
    The reason it had never been done before was not because 
the Free Exercise Clause didn't apply to corporate actors or to 
business actors. It did. But the Supreme Court was worried, in 
case after case, in specific circumstances, that the impact of 
exempting corporate actors and commercial actors on third 
parties would be very grave. Those third parties are chiefly 
often employees but could also be customers, investors, and a 
host of other constituents that corporations affect in their 
daily operations.
    Mr. Conyers. Thank you.
    Mr. Baylor, I wanted to ask you about whether a domestic 
violence shelter funded by taxpayer dollars and run by a 
religious institution would be permitted to deny services to a 
lesbian woman.
    Mr. Baylor. You know, your question raises precisely the 
analysis that RFRA was designed for.
    Now, I don't know. Your premise is that this clinic, or 
this shelter, would for some reason refuse to provide services 
to lesbians. That has not been what we have seen in the United 
States in recent history.
    What we have seen is individuals who are operating in 
commerce not refuse to serve gays and lesbians but rather to be 
coerced by the government to participate in the celebration of 
a marriage ceremony that they object to. So I think the premise 
does not really reflect what is happening in reality.
    But the next questions would be: What burden is the 
operator of the shelter articulating, and is it sufficiently 
substantial? Then, if they proved that, it would turn to the 
government to prove that it's necessary to force this shelter 
to provide those services, and a judge would decide that.
    Mr. Conyers. Thank you very much. That was a very 
insightful response.
    And I yield back the balance of my time.
    Mr. Franks. I thank the gentleman.
    And I now yield to the distinguished Vice-Chairman of the 
Constitution Subcommittee, Mr. DeSantis.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Thank you, for the witnesses, for your testimony.
    Mr. Tebbe, if I understand you correctly, your objection to 
Hobby Lobby was that the price of giving Hobby Lobby an 
exemption from the regulatory mandate was that the employees of 
Hobby Lobby were made worse off as a result?
    Mr. Tebbe. That's right. And I think the Supreme Court 
didn't do enough in its opinion to make sure that wouldn't 
happen.
    Mr. DeSantis. But here's the problem I have with that 
point, is that, wouldn't the outcome have been, if that 
regulatory edict was upheld, that Hobby Lobby, per the advice 
of Justice Kagan and Sotomayor during the early arguments, 
Hobby Lobby would have simply gotten out of the health 
insurance business, perhaps, and ended up paying the tax, which 
Justice Kagan correctly pointed out was actually cheaper than 
offering the insurance?
    So Hobby Lobby still would have maintained its religious 
commitment. Those employees would have ended up in exchanges, 
which would have been more costly and given them, actually, 
worse coverage, in many respects.
    So wouldn't they have been made worse off had the case gone 
the other way?
    Mr. Tebbe. Yeah, that's an interesting point. And I want to 
acknowledge Professor Marty Lederman, who started to raise that 
argument, that Hobby Lobby could simply get out of the 
business, if it didn't want to be burdened, of providing health 
insurance at all.
    Unfortunately, that argument was raised late in the 
litigation, and there was not a record on how much it would 
actually cost. So whether that----
    Mr. DeSantis. Well, let's just assume that the tax penalty 
for not providing insurance is substantially cheaper. And, 
obviously, Hobby Lobby would be in a position where they 
wouldn't be complicit in something that violates their 
conscience. I think it's questionable whether the employees 
would--I think they would have been a lot worse off under that 
situation.
    Let me ask you this, though. I'm trying to figure out, kind 
of, where the boundaries are here in terms of how you 
understand religious liberty. Could Congress enact a statute to 
require churches, like a Catholic parish, to pay for late-term 
abortions for its employees?
    Mr. Tebbe. I think that would be a difficult question I'm 
not prepared to answer right now, but----
    Mr. DeSantis. But, I mean, if under the analysis, I think, 
that you're proposing, if that parish were to go and ask for, 
hey, RFRA, this is a burden on my faith, not least restrictive 
means, under your analysis, those employees who happen to work 
for that parish would be worse off because they would not be 
getting a regulatory benefit, or maybe even Congress would do a 
statutory benefit.
    And so wouldn't you have to then say that that regulation 
would have to be imposed on the church?
    Mr. Tebbe. I see where you're going with this. No. And I 
believe----
    Mr. DeSantis. Why?
    Mr. Tebbe. The reason is because churches and their 
relationships with their employees are a special case, and the 
Supreme Court has recognized----
    Mr. DeSantis. Okay. What about Catholic Charities? So this 
is a big organization. It's not a church. It's based on 
Catholic principles. Would that mandate apply to Catholic 
Charities? Would they have to fund late-term abortion coverage 
for their employees?
    Mr. Tebbe. I'm reluctant to speak on that question because 
I haven't thought it through carefully enough. But I do think 
that Catholic Charities would be required by general laws, for 
example, to provide adoption services to all couples in----
    Mr. DeSantis. Well, that's a different--so what do you 
think, Mr. Baylor? I mean, in this situation, under that 
analysis--well, let's even go further, more into the commercial 
realm. EWTN, a Catholic station, it's commercial, but clearly 
they have a religious mission that's core.
    Would that analysis mean that EWTN would have to provide 
the late-term abortion coverage, which is obviously something 
that the people who are participating in running that 
organization very much would disagree with?
    Mr. Baylor. I think it does. And that's what's really 
disturbing about some of these arguments that are being made 
about Hobby Lobby, is, you know, we tend to think it's about 
contraception, but, actually, the objection that was made by 
Hobby Lobby and by Conestoga and by many of the over 300 
plaintiffs that have challenged the mandate is that they don't 
want to facilitate access to abortion.
    And this hypothetical that you have spun out is not a 
hypothetical. It is a reality. The District of Columbia now has 
adopted a law that will require all employers, including the 
Catholic Archdiocese, including Catholic University, including 
Alliance Defending Freedom, to pay for all elective abortions. 
California has done the same thing. So we need protection from 
it.
    Mr. DeSantis. Let me--my time is about to expire. There are 
sometimes distinctions drawn between a corporate actor or a 
commercial actor versus a non-. I mean, I think if you had a 
sole proprietor who was running an orthodox Jewish deli, there 
would be religious protections for that sole proprietor. I 
mean, do people dispute that?
    And if they don't, then simply the fact that he decides to 
incorporate his business, he would essentially be forfeiting 
his right to run his business as a--I just--I'm trying to 
figure out where this would go. So can you speak to that issue?
    Mr. Baylor. Well, there was a lot of difficult line-drawing 
that folks on the other side of the Hobby Lobby case were 
trying to engage in during that litigation. And it was pointed 
out that corporations--I think everyone agrees that at least 
some corporations have religious liberty. Many churches are 
incorporated. The Christian school that my daughters go to is 
incorporated. So you can't say that all corporations don't have 
religious liberty.
    And then you have this prospect, as you talked about, of 
sole proprietorships. And is it really the case that we're 
going to say that someone who incorporates or has a sole 
proprietorship as a Kosher deli can be forced by the government 
to do things that violate their religious convictions?
    The lines just don't hold up. We should keep it as it is.
    There was an amicus brief in Hobby Lobby that explained 
that when RLUIPA--I'm sorry--when RLPA, the predecessor 
statute, was considered, Congress understood that RFRA 
protected commercial entities. They tried to change that and 
failed.
    Mr. DeSantis. Thank you.
    My time has expired.
    Mr. Franks. And I thank the gentleman.
    And I now recognize Mr. Nadler from New York for 5 minutes.
    Mr. Nadler. I thank the Chairman.
    I want to go into a little of the history here, first of 
all. I was one of the leaders in the fight for RFRA back in 
1993. And along with former Congressman, now Florida Supreme 
Court Justice Charles Canaday, I was the principal author, 
along with Charles, of RLUIPA. And the congressional intent at 
that time--and we did pass it by UC on the floor, with only 
Charles and I being on the floor at the time, as the last act 
before we adjourned in 2000.
    The U.S. Supreme Court's ruling in Hobby Lobby essentially 
punched a hole in the Constitution, in my opinion. It took the 
principle of religious liberty, enshrined in our First 
Amendment and in RFRA and RLUIPA, and turned it on its head.
    The Religious Freedom Restoration Act was intended to be 
used as a shield, not a sword. It was designed to protect 
individuals' ability to exercise their religion. It was not 
intended to allow any of us to impose our religious beliefs on 
someone else or to use our religion to harm other people.
    And I think Mr. Tebbe's distinction between who pays the 
price, the government or a third-party individual, is exactly 
apropos.
    When we passed RFRA in 1993, it was not intended to excuse 
for-profit businesses from complying with our laws. Religious 
belief was not understood to excuse restaurants or hotels from 
following our civil rights laws enacted in the 1960's or an 
Amish employer from having to pay into the Social Security 
system in the 1980's, and I think Ms. Windham mentioned that 
case.
    No matter how sincerely held the religious belief, 
employers should not be allowed to use their beliefs as a 
reason to refuse to hire people of the ``wrong,'' in quotes, 
race or religion or to deny employees access to critical 
preventative healthcare services required to be provided by 
law.
    Now, let me ask a couple of questions here.
    By the way, let me mention that all the cases mentioned by 
Ms. Windham as RLUIPA cases--the prison beard case, the eagle 
feather case, the land use cases that were mentioned--all of 
them, I certainly agree with the outcome. And all of them were 
well within the purpose--they were exactly why we passed RFRA 
and why we passed RLUIPA.
    The Hobby Lobby case, which is the first case that imposes 
a burden on third parties, is the exception--not the exception. 
It's the new--it's an extension of the law, because we never 
intended that third parties should bear the burden. And Mr. 
Tebbe made that distinction.
    Let me ask you this. We generally provide exemptions in the 
law. We say that a church--you can't discriminate on religion 
in hiring, for example. But if you're a church, you can 
discriminate in hiring as long as the person has to do with the 
ministry. In other words, you can say, ``We insist on Catholics 
to be priests.'' You can't say, ``We insist on Catholics to be 
the janitor.''
    Where does that end?
    Mr. Tebbe. I think it ends at the church walls. That is, in 
the Amos case, the United States Supreme Court addressed that 
question. And that very exemption that you are mentioning to 
Title 7 that allows religious employers, churches in 
particular, to discriminate in employment in favor of co-
religionists--right? It allows a church to hire only people of 
the same faith for all positions within the church. As applied 
in that case, it did impose a harm on a third party, namely the 
janitor--right?--who was not of the same faith as the church.
    But that's a very special situation. You know, the Supreme 
Court has recognized, and I think a lot of people have, that 
churches have special ability to----
    Mr. Nadler. And the statute recognizes that. If the statute 
did not recognize that, would that be a constitutional 
requirement?
    Mr. Tebbe. Well, there's debate about that. I'm not sure I 
would want to take a position on it here. But the statute 
requires it, and the Supreme Court has acknowledged it in the 
Hosanna-Tabor case, I think rightly, although maybe that case 
goes a little bit further than it should.
    Mr. Nadler. Now, let me ask you a different question.
    Mr. Tebbe. Yeah.
    Mr. Nadler. We would certainly say that the corner bakery 
or--let's be bigger--the large bakery could not refuse to hire 
a Black person or a Jewish person or anybody on the basis of 
race, color, religion, creed, faith, et cetera.
    Could they refuse--the bakery--could they refuse to sell a 
wedding cake to a couple of whose marriage they disapprove, 
let's say a same-sex couple? If so, why? If not, how do you 
distinguish that from--or, if so, how do you distinguish that 
from the refusal to hire the wrong person?
    Mr. Tebbe. So State and local antidiscrimination laws would 
prohibit that kind of discrimination even on the basis of 
religion, and there would not be a religion exception.
    There was recently a New Mexico Supreme Court decision that 
held as much in a case to do with a wedding photographer that 
declined to photograph the civil union ceremony of a gay 
couple. And the Supreme Court of that State said that the 
antidiscrimination law could be applied against the wedding 
photographer.
    And there are cases pending now in different parts of the 
country concerning bakeries, and they're coming out the same 
way.
    Mr. Nadler. And would the Hobby Lobby doctrine, if Hobby 
Lobby were applied, would you think that would change that 
result?
    Mr. Tebbe. It could be a problem, right? So there are 
State-level RFRAs. One of the dangers with Hobby Lobby and the 
way it eviscerated the principle against shifting harms to 
third parties is that it could be mimicked by State-level 
religious freedom restoration acts by State courts. And if that 
started to happen--it didn't happen in New Mexico, but if it 
starts to happen, that could be a problem for State and local 
laws that protect LGBT people against discrimination.
    Mr. Nadler. That's another problem.
    My last question: Mr. Baylor, I don't remember if it was 
you or Ms. Windham or somebody cited a number of the zoning 
cases designed to exclude orthodox Jewish institutions from 
certain areas and that they were rejected on the basis of 
RLUIPA, quite properly. Maybe it was Mr. Parshall who cited 
those cases and Ms. Windham.
    And those kinds of cases were one of the reasons we passed 
RLUIPA in advance. And I think the Court decisions saying you 
can't do that were quite proper and correct. And I congratulate 
any of you sitting here who had anything to do with those 
cases.
    Now, Mr. Parshall, several years ago, a developer announced 
plans to build a Muslim community center named Park51 in New 
York City near Ground Zero in my district. The project 
satisfied all zoning requirements and was legally authorized to 
move forward with construction, but there was significant 
backlash to the project, specifically because it was a building 
to be used by Muslims, and some people said that's a terrible 
thing. You know, given its proximity to Ground Zero, it is 
terrible because, after all, it was Muslims who destroyed the 
World Trade Center, and it's bad to have a Muslim mosque or 
whatever close to it.
    Although your organization usually argues that zoning and 
historic landmark laws may not be used to stop the building of 
religious structures, in that case it filed a lawsuit arguing 
that zoning and landmark laws should be used to bar the 
construction of the Muslim community center. In fact, you filed 
a lawsuit to prevent the structure from being built.
    Now, this is the very scenario that RLUIPA was meant to 
protect. A building project was being contested simply because 
of the religious belief of those who would use it. What was 
unusual in this case is that, usually, when someone opposes a 
religious building project, they're not honest enough to admit 
the reason is that it's religious. They find some other excuse, 
density or whatever. Here they were very clear about it; we 
don't want a Muslim----
    Mr. Franks. The gentleman's time has expired here, but go 
ahead and finish the question, and let him answer.
    Mr. Nadler. We don't want a Muslim structure nearby.
    RLUIPA is there to ensure that this minority religious 
group is not treated differently because of what they believe, 
et cetera. But the ACLJ not only refused to----
    Mr. Franks. The gentleman's time has expired.
    Mr. Nadler. I'm almost finished. I have one more sentence 
to the question--but actively sought to prevent their use of 
the property.
    How is blocking the building of a Muslim community center 
supporting religious freedom? And why would you think that 
RLUIPA did not protect the religious group in this case?
    Mr. Parshall. Well, first of all, as you know, the Court 
ruled in a way that affirmed the ACLJ's legal position that we 
had argued in that case.
    Zoning codes--and I've done zoning work. I'm not a 
specialist in it, but those of us who do religious liberty work 
run into these zoning cases quite a bit. Zoning codes and 
zoning authorities have the right to use a number of criteria 
that are religion-neutral.
    And, in this case, the reason that the Court ruled and the 
reason that ACLJ argued was not because of public outcry. This 
wasn't a mob effort. This was a reasoned effort in line with 
the criteria that zoning boards and zoning ordinances and 
zoning laws can apply--things like aesthetics and history, 
legacy. And, in this case, we all have to admit that there was 
a particular history surrounding the 9/11 tragedy in that part 
of New York City, very much like the landmarking laws that are 
often--in fact, the Flores case addressed the competing 
interests between religious liberty and landmarking.
    So, in a sense, I look at this as a landmarking issue and 
not a targeting-of-religion issue.
    Mr. Franks. I want to thank all of you today for this very 
important discussion.
    You know, I am reminded of a--if I can paraphrase and sort 
of condense a quote from a great statesman some years ago when 
he said that, out of fervent, religious, and committed faith 
arises--you know, from bondage sometimes arises great, fervent 
faith, and that faith often leads to great courage, and the 
courage leads to freedom, and freedom leads to abundance, and 
abundance leads to apathy, and apathy leads to dependence, and 
dependence can lead back to bondage.
    And I think it's a great admonition on the part of all of 
us that, when we are in times of abundance, to make sure we 
protect our foundational freedoms, none of which is more 
foundational than the freedom of religion.
    And I thank all of you and----
    Mr. Cohen. Mr. Chair, before you close, I have a statement 
to enter in the record, without objection.
    Mr. Franks. Without objection.
    [The information referred to follows:]
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    Mr. Cohen. And I would like to take the brief time to say I 
was wrong, Mr. Goodlatte was right. I think he was correcting 
me on the author of the Declaration of Independence.
    Mr. Goodlatte is a gentleman. He is my friend. He is a 
scholar. I pre-anticipated his question incorrectly, and I 
would have been eliminated from a game show.
    Thank you.
    Mr. Franks. I thank the gentleman.
    So, without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses 
or additional written materials for the record.
    Again, I thank all of you, and I thank the members in the 
audience.
    And this hearing is adjourned.
    [Whereupon, at 11 a.m., the Subcommittee was adjourned.]
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