[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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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.]
A P P E N D I X
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