[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE STATE OF RELIGIOUS
LIBERTY IN AMERICA
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 16, 2017
__________
Serial No. 115-5
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
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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 SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
STEVE KING, Iowa, Chairman
RON DeSANTIS, Florida, Vice-Chairman
TRENT FRANKS, Arizona STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas JAMIE RASKIN, Maryland
TREY GOWDY, South Carolina JERROLD NADLER, New York
C O N T E N T S
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FEBRUARY 16, 2017
OPENING STATEMENTS
Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, Tennessee, Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 3
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 5
WITNESSES
Kim Colby, Director, Christian Legal Society's Center for Law and
Religious Freedom:
Oral Statement............................................... 7
Hannah Smith, Senior Counsel, Becket:
Oral Statement............................................... 8
Rabbi David Saperstein, Former United States Ambassador-at-Large
for International Religious Freedom:
Oral Statement............................................... 10
Casey Mattox, Senior Counsel, Alliance Defending Freedom's Center
for Academic Freedom:
Oral Statement............................................... 12
OFFICIAL HEARING RECORD
Responses to Questions for the Record from Rabbi David
Saperstein, Former United States Ambassador-at-Large for
International Religious Freedom................................
ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
Statement submitted by the Family Research Council. This material is
available at the Committee and can be accessed on the committee
repository at:
http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10-
20170216-SD004.pdf
Statement submitted by the Honorable John Conyers, Jr., Michigan,
Ranking Member, Committee on the Judiciary. This material is
available at the Committee and can be accessed on the committee
repository at:
http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10-
MState-C000714-20170216.pdf
Letters submitted by the Honorable Steven Cohen, Tennessee, Ranking
Member, Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on the
committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10-
20170216-SD003.pdf
THE STATE OF RELIGIOUS LIBERTY IN AMERICA
THURSDAY, FEBRUARY 16, 2017
House of Representatives,
Subcommittee on the Constitution
and Civil Justice,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 1:07 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve King
[chairman of the subcommittee] presiding.
Present: Representatives King, Goodlatte, DeSantis, Franks,
Gohmert, Gowdy, Cohen, Nadler, and Raskin.
Staff Present: John Coleman, Counsel; Jake Glancy, Clerk;
James Park, Minority Chief Counsel, Subcommittee on the
Constitution and Civil Justice; Veronica Eligan, Minority
Professional Staff; and Matthew Morgan, Minority Professional
Staff.
Mr. King. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time.
We welcome everyone to today's hearing on the state of
religious liberty in America.
I now recognize myself for an opening statement.
James Madison's writings made clear he believed that the
United States Constitution, by design, would protect religious
liberty. Expressing this view in the Federalist No. 10, Madison
stated that, ``The inference to which we are brought is that
the causes of faction among people cannot be removed, and that
relief is only to be sought in the means of controlling its
effects''--meaning the effects of factions. ``Indeed, by
design, our system of government was intended to take mankind
as it is, not as those in government often just want it to
be.''
In his influential document titled, Memorial and the
Remonstrance Against Religious Assessments, Madison pointed out
that, ``The failed attempts by past governments to regulate
religious thought,'' and Madison stated that, ``Torrents of
blood have been spilled in the old world, by vain attempts of
the secular arm, to extinguish religious discord by proscribing
all difference in religious opinion,'' close quote.
Madison proposed that only equal and complete liberty would
ensure that religious discord among factions did not harm the
health and prosperity of the State. This idea would later be
enshrined in the establishment and free exercise clauses of the
First Amendment, which state that, quote, ``Congress shall make
no law respecting an establishment of religion or prohibit the
free exercise thereof,'' close quote, which just means Congress
will not establish a State religion.
Despite the protections afforded the American people under
the First Amendment, religious liberty is threatened today.
This is, in part, a result of Supreme Court precedent that has
twisted the original meaning of the religion clauses. The free
exercise clause, for example, after the much criticized
Employment Division v. Smith, has been interpreted so narrowly
that Congress saw a need to pass the Religious Freedom Act of
1993, known as RFRA, to restore the most robust, compelling
interest standard found in earlier decisions. RFRA, which was
introduced by Congressman Chuck Schumer--seems interesting to
note that at this point, in retrospect--received overwhelming
bipartisan support from a broad coalition of over 50
organizations that included the American Civil Liberties Union,
Americans United for the Separation of Church and State, the
Home School Legal Defense Association, Concerned Women for
America, and the Christian Life Commission of the Southern
Baptist Convention.
Other cases, however, continue to leave an ugly stain on
American jurisprudence. One such case is Everson v. Board of
Education of Ewing, which was authored by Justice Hugo Black in
1947. Appropriating the phrase, quote, ``wall of separation
between church and State,'' close quote, from Thomas
Jefferson's 1802 letter to the Danbury Baptist Association,
Justice Black redefined the establishment clause despite the
fact that his metaphorical wall appears nowhere in our
Constitution. Moreover, in his book titled, ``Separation of
Church and State,'' legal historian, Philip Hamburger
meticulously documents a strong connection between the phrases
originally used in the Everson case and the anti-Catholic
ideology of the Ku Klux Klan, though Justice Black himself was
a former Klansman.
More recently, Americans' religious liberty was threatened
by executive action under the previous administration. I think
of Little Sisters of the Poor, Hobby Lobby, Hossana-Tabor and
many others who have spent years of their life defending
themselves in court only to win in the Supreme Court and be
rewarded with the obvious conclusion that our body of laws
cannot regulate our conscience. And our Founders recognize our
Nation and the human race as a whole has drawn strength from a
diversity of ideas and beliefs.
My hope is that today's hearing will shed some light about
the challenges now facing religious liberty in the United
States. I want to thank the witnesses for your testimony.
And before I recognize the ranking member for his opening
statement, I first would like to submit a letter from the
Family Research Council regarding today's hearing.
Without objection, the statement will be entered into the
record.
STATEMENT SUBMITTED BY THE FAMILY RESEARCH COUNCIL
This material is available at the Committee and can be
accessed on the committee repository at: http://docs.house.gov/
meetings/JU/JU10/20170216/105593/HHRG-115-JU10-20170216-
SD004.pdf.
Mr. King. The chair now recognizes the ranking member of
the Subcommittee on the Constitution and Civil Justice, Mr.
Cohen of Tennessee, for his opening statement.
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
Today's hearing is the first hearing of this subcommittee,
the Constitution and Civil Justice Subcommittee of the 115th
Congress. And we look forward to working with Mr. King. We have
traveled together and we have served together and we have had
committees together, and I look forward to this one.
I had the pleasure of working with the chairman when he was
chairman and I was ranking member of the Executive Overreach
Task Force in the last Congress. The Task Force, which we ought
to revive for, indeed, we have an executive in need of
scrutiny. Executive in need of scrutiny. We certainly have that
situation. So I look forward and hope we will continue that
work in this 115th Congress.
Today's hearing on the state of religious liberty in
America is very timely. And I am sorry that the state of
religious freedom is not so good at the moment, for our Nation
seems to have entered a dark zeitgeist. When it comes to
religious freedom, our most fundamental values as embodied in
the First Amendment's religion clause are under threat.
I heard, it was on television, I guess, of President
Obama's executive order banning all refugees--President Trump.
Sorry. Wrong President--wishful thinking. I channel myself back
to the good old days. When I heard President Trump's executive
order banning all refugees and all travelers from seven
majority Muslim countries with what effectively amounted to an
exception that favored Christian refugees for admission, I was
disturbed. I thought, this is not the America that I grew up
in, studied, and revere, and take an oath to uphold.
This executive order must be seen in context for how it
coincides with President Trump's campaign promise of a, quote,
``total and complete shutdown of Muslims entering the United
States.''
Rudy Giuliani, a prominent Trump supporter, said the
President wanted a, quote, ``Muslim ban,'' unquote, and asked
him for a way, quote, ``to do it legally.'' Good evidence in
the cases that later came forward but terrible for the idea
that our country was looking at a religious test. And President
Trump did on television the same thing in an interview when he
said he wanted to prioritize Christian refugees over those of
other faiths.
Now, I supported a bill I think that we had about Christian
refugees, and I think there might have been a minority of
Democrats on that. There was a lot of Republicans and just a
few of us Democrats. So I understand the fate of the Christian
refugees. But to take our immigration policy and prioritize one
religion is still wrong, whether that was the Christian
minority or Jewish or Buddhist or whoever.
I cannot believe our country, which has a history of being
a haven for religious freedom going all the way back to the
pilgrims, John Winthrop talking about our shining city upon a
hill, which I think Reagan then played upon, would engage in
such an act of religious intolerance.
The freedom to worship one's God or no God is fundamental
to our national identity and our essential character as a large
and diverse society and central to our values. If religious
freedom means anything, it means that all religions and not
just those of the majority culture have a right to be free from
discrimination by our government.
There has, lately, kind of been a group in America that had
been saying that this is a Christian Nation, and that is not
true. We are not a Christian Nation or a Judeo-Christian
Nation. We are the United States of America, and we welcome all
religions and put none over another, and that is why we have a
First Amendment.
Casting suspicion on Muslims because they are Muslims is
not an American value. Unfortunately, denigrating Islam and its
followers seems to have become the latest form of dog whistle
politics, and innocent people are paying the price. Hopefully,
they won't be paying the price as greatly as we fear they will
be as American troops might have people turn on them in Iraq
where we suspended immigration, yet we are fighting with those
people against ISIL.
Just yesterday, the Southern Poverty Law Center issued a
report finding that the number of anti-Muslim hate groups in
America rose sharply from 2015 to 2016, tripling from 34 to
101, a rise which coincided with the 2016 Presidential campaign
and much anti-Muslim rhetoric.
A coalition of 24 civil rights and religious organizations
wrote to this subcommittee, quote, ``Treating one's faith as a
second class and favoring others as the executive order does
threatens all faiths and the religious freedom that protects us
all,'' end quote. It is no argument to say that we need this
order for national security reasons. Indeed, we have done
nothing in the last 4 days--6 days, I guess, since the order
was--the Ninth Circuit ruled on the order, and we were told
that terrorists and bad hombres were rushing into our country
by the hour and, yet we have done nothing Saturday, Monday,
Tuesday, Wednesday, Thursday. No action.
It is not nearly tailored to countries with a history of
terrorist attacks in America. In fact, those seven countries
had little to no immigrants who committed a terrorist act. They
were Americans with ancestry from Somalia. But the 9/11 folks,
of course, were Saudi Arabia, and Egypt, and I think maybe the
UAE, I am not sure, but certainly countries that weren't on
that list, and that was unfortunate.
It brushes broadly, impugning entire countries and entire
religion. Indeed, this is why Federal courts have found that,
at least in these initial matters and district courts and in
the Ninth Circuit, that the TRO should have been issued because
there was a likelihood of irreparable harm and immediate
damage, and then apparently that it likely violates the
Constitution. Silence is not an option.
As the late, great Nobel Laureate and Holocaust survivor
Elie Wiesel said, ``We must take sides. Neutrality helps the
oppressor, never the victim. Silence encourages the tormentor,
never the tormented. We must speak out.''
And I yield back the balance of my time.
Mr. King. I thank the gentleman for his statement.
And the chair now recognizes the chairman of the full
Judiciary Committee, Mr. Bob Goodlatte of Virginia, for his
opening statement.
Chairman Goodlatte. Thank you, Mr. Chairman. I want to
thank you for holding this hearing.
I want to thank the witnesses for the testimony they are
going to offer.
Since the birth of our Nation, debates about religious
liberty have been centered on the relationship between religion
and government. Indeed, the Founding Fathers feared the effect
of government on religion. In a letter dated June 12, 1812, to
Benjamin Rush, John Adams stated that, ``Nothing is more
dreaded than the national government meddling with religion.''
Many Americans today know all too well this dread. The policies
and regulations implemented under the previous administration
were in many cases hostile to the religious protections
afforded by our Constitution. Thankfully, several of these
policies were struck down by the United States Supreme Court.
In 2012, for example, the justices of the Supreme Court
unanimously rejected the government's argument in Hosanna-
Tabor. To the surprise of many, the administration's lawyers
argue that the First Amendment had little application to the
employment relationship between a church and its ministers. The
court stated that requiring a church to accept or retain an
unwanted minister or punishing a church for failing to do so
intrudes upon more than a mere employment decision. The
decision described by the administration--the decision
described the administration's lawyers' position as extreme.
As this committee today examines current threats to
religious liberty, my hope is that we approach this examination
in the same spirit as when Congress passed the Religious
Freedom Restoration Act in the 103rd Congress and was signed
into law. I cosponsored that legislation, and I was amazed at
the incredible bipartisan support it generated. By the time the
bill passed by a voice vote, it had the support of 170
cosponsors from both sides of the aisle and overwhelming
support from a variety of organizations across the political
spectrum.
One key to the--to RFRA's success is that it was carefully
crafted to avoid being outcome determinative. No carve-outs
were added, which ensure that courts would have the ability to
look at all the circumstances on a case-by-case basis and make
a decision particular to each case.
By passing this law, 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.
I want to thank all of our witnesses for coming today, and
I look forward to your testimony.
I yield back.
Mr. King. Thank you, Mr. Chairman. And I appreciate your
opening statement.
And now I would recognize the ranking member for an opening
statement.
Mr. Cohen. The ranking member is not here, but he does have
a statement that I would like to enter into the record, without
objection.
Mr. King. Without objection, so ordered.
STATEMENT SUBMITTED BY THE HONORABLE JOHN CONYERS, JR.,
MICHIGAN, RANKING MEMBER, COMMITTEE ON THE JUDICIARY
This material is available at the Committee and can be
accessed on the committee repository at: http://docs.house.gov/
meetings/JU/JU10/20170216/105593/HHRG-115-JU10-MState-C000714-
20170216.pdf.
Mr. Cohen. And I also have some statements that I would
like to enter in response to some of the contentions that
religious freedom requires the government to permit
discrimination against members of the LGBTQ community and
against women's health and reproductive rights as well as
support and consideration--considering the discriminatory
nature of the Muslim travel ban order. I would ask unanimous
consent to allow these records--letters into the record from
Catholics for Choice, the Human Rights Campaign, NARAL, Anti-
Defamation League, and basically, you know, rounding up the
usually suspects.
Mr. King. Hearing no objection, also so ordered.
Mr. Cohen. Thank you.
Mr. King. Thank you, Mr. Cohen. And they will be entered
into the record.
This material is available at the Committee and can be
accessed on the committee repository at: http://docs.house.gov/
meetings/JU/JU10/20170216/105593/HHRG-115-JU10-20170216-
SD003.pdf.
Mr. King. And without objection, other members' opening
statements will be made part of the record. Let me now
introduce our witnesses.
Our first witness is Ms. Kim Colby. Ms. Colby is the
director of the Center For Law and Religious Freedom of the
Christian Legal Society. Our second witness, Ms. Smith, Ms.
Hannah Smith, and she is senior counsel at Becket. And our
third witness is Rabbi David Saperstein, who also served as
director of the Religious Action Center of Reform Judaism and
also former U.S. Ambassador at Large for International
Religious Freedom. And our fourth witness is Mr. Casey Mattox.
Mr. Mattox is a senior counsel and director at the Center for
Academic Freedom.
Welcome to each and all of the witnesses.
And the witnesses' written statements will be entered into
the record in their entirety. I ask that each witness summarize
his or her testimony in 5 minutes or less. To help you stay in
the timeframe, there is a light in front of you. And that light
will switch from green to yellow indicating that you have one
minute left to conclude your testimony. When the light turns
red, your 5 minutes are up, and we also want you to finish your
thoughts however.
And before I recognize the witnesses for their testimony,
it is a tradition here in the subcommittee that the witnesses
be sworn in. So please stand to be sworn.
Do you swear--please. Do you swear that the testimony you
are about to give before this committee is the truth, the whole
truth, and nothing but the truth, so help you God?
You may be seated.
Let the record reflect that all the witnesses responded in
the affirmative.
And I now recognize the first witness, Ms. Colby. Please
turn on your microphone. And you are recognized for your
testimony, Ms. Colby.
TESTIMONY OF KIM COLBY, DIRECTOR, CHRISTIAN LEGAL SOCIETY'S
CENTER FOR LAW AND RELIGIOUS FREEDOM; HANNAH SMITH, SENIOR
COUNSEL, BECKET; RABBI DAVID SAPERSTEIN; AND CASEY MATTOX,
SENIOR COUNSEL, ALLIANCE DEFENDING FREEDOM'S CENTER FOR
ACADEMIC FREEDOM
TESTIMONY OF KIM COLBY
Mr. Colby. Chairman King, Ranking Member Cohen, and members
of the subcommittee, thank you for inviting me to testify at
this hearing on our most important freedom: The free exercise
of religion. I am Kim Colby, director of the Christian Legal
Society's Center for Law and Religious Freedom.
Recently, leading scholars have expressed grave concern
about the future of religious freedom in America. For example,
Professor Doug Laycock has written, and I quote, ``For the
first time in nearly 300 years, important forces in American
society are questioning the free exercise of religion in
principle, suggesting that free exercise of religion may be a
bad idea, or at least, a right to be minimized,'' end quote.
As if to confirm his warning, 5 months ago, the United
States Commission on Civil Rights released a report entitled,
``Peaceful Coexistence: Reconciling Nondiscrimination
Principles with Civil Liberties.'' The report marks a new and
profoundly troubling inflection point in the deepening erosion
of Americans' religious freedom. For the first time, at least
to my knowledge, a Federal agency issued an official report
that treated religious freedom as something shameful.
The report arose out of a briefing held by the Commission
in the words of the written report, quote, ``to learn how best
to reconcile the conflict which, in certain cases, may exist
between those seeking to practice religious faith and those
seeking compliance with or protection of nondiscrimination laws
and policies,'' end quote.
But the report's findings and recommendations make no
effort to reconcile religious freedom and nondiscrimination.
Instead, the report adopts an extremist position. Government
should subordinate citizens' religious freedom claims to
nondiscrimination claims whenever possible, no matter how
strong a specific religious freedom claim is or how weak a
nondiscrimination claim might be, and even if both religious
freedom and nondiscrimination can be accommodated without
denying either person's ability to live according to her
deepest convictions.
In perhaps the most disturbing paragraph in the report, the
Commission chairman disparaged religious freedom when he wrote,
and I quote, ``The phrases `religious liberty' and `religious
freedom' will stand for nothing except hypocrisy so long as
they remain code words for discrimination, intolerance, racism,
sexism, homophobia, Islamophobia, Christian supremacy, or any
form of intolerance,'' end quote.
Four commissioners issued a longer statement equally
dismissive of religious freedom, which concluded that
nondiscrimination laws stand as a bulwark against the assaults
of intolerance and animus. But, of course, that is equally true
of religious freedom laws, which also serve as a bulwark
against intolerance and animus. Nondiscrimination laws serve a
valuable purpose. No one familiar with American history can
doubt the need for them.
But history also teaches that religious people often are
the targets of intolerance and animus from government itself.
For that reason, American nondiscrimination laws universally
include religion in their core list of protected categories,
along with race, color, sex, and national origin. How ironic
that nondiscrimination laws intended to protect religious
persons are now used to stigmatize religious persons because
they wish to live according to their deeply held religious
beliefs.
History teaches that governments at some point almost
inevitably target individuals and groups for persecution based
on religion, but America has chosen a different path. Our
Nation has dedicated itself to religious freedom for all
citizens. This promise has drawn millions to America as the
only reliable haven from ruthless religious persecution. Robust
religious freedom assures all Americans that their faith will
be respected, regardless of shifting political whims.
As another religious freedom scholar, Professor Michael
McConnell wrote 3 years ago, and I quote, ``Religious freedom
is one thing nearly all Americans, left and right, religious
and secular, have been able to agree upon, perhaps because it
protects all of us. Because none of us can predict who will
hold political power, all of us can sleep more soundly if we
know that our religious freedom does not depend on election
returns,'' end quote.
We need not and must not choose between religious freedom
and nondiscrimination principles. Instead, we should reaffirm
our commitment to a society in which all Americans are free to
live according to their most deeply held beliefs.
Mr. King. Thank you, Ms. Colby.
And the chair now recognizes Ms. Smith for your testimony.
TESTIMONY OF HANNAH SMITH
Ms. Smith. Thank you.
Chairman King, Ranking Member Cohen, and distinguished----
Mr. King. Turn on your microphone, please.
Ms. Smith. Good afternoon, and thank you for the invitation
and opportunity to offer testimony at today's hearing on the
state of religious liberty in America. My name is Hannah Smith,
and I am senior counsel at Becket, a nonprofit public interest
law firm dedicated to protecting religious liberty for people
of all faiths.
At Becket, for over 20 years, we have defended Buddhists,
Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and
Zoroastrians. Today, I would like to illuminate the state of
religious liberty in America through the prism of recent cases
to focus on two principles.
The first principle is that government must provide
equivalent legal protections to religious groups when it
provides those same protections to secular groups. The second
principle is that religious organizations that perform so much
of our country's charitable works should not be discriminated
against merely because of their religious status.
My first point is illustrated through a recent Becket
victory involving Sikhs in the Army. Sikhism is the world's
fifth largest religion, and two of its core tenets include
maintaining uncut hair and wearing a turban. These religious
tenets have not prevented Sikhs from serving admirably in the
U.S. military since the World War I era. But in 1981, the
military passed a ban on beards. This ban contained multiple
exceptions for secular reasons, accommodating nearly 100,000
soldiers with beards for medical or tactical reasons. But other
than a few rare cases, the rule did not allow beards for
religious reasons, and this ban resulted in the near total
exclusion of Sikhs from the U.S. military.
So in 2016, Becket petitioned the Army to grant a religious
accommodation to West Point graduate, Army Ranger and Bronze
Star Medal recipient Captain Simmer Singh. After receiving this
request, the Army ordered him to undergo a series of tests that
other soldiers permitted to wear beards for medical reasons
were not required to complete. Becket brought a lawsuit under
the Religious Freedom Restoration Act to prevent this
discriminatory testing and to obtain an accommodation for
Captain Singh. Relying on RFRA, the court ruled in Captain
Singh's favor and ordered the Department of Defense to cease
all discriminatory testing against him, and granted him
temporary protection.
At the beginning of this year, the Army issued new
regulations providing that sincere followers of the Sikh faith
will no longer be forced to choose between their religious
beliefs and serving their country in the Army. This case
demonstrates an important principle that should be
uncontroversial. The government should not deny protections for
religious reasons without justification when it is willing to
offer those same protections for other reasons.
This same principle is demonstrated by Becket's Supreme
Court case successfully defending a Muslim prisoner where the
government prohibited him from growing a religiously required
beard, even though it allowed beards for medical reasons. This
principle is also at the heart of Becket's litigation defending
the Little Sisters of the Poor, where the government is willing
to exempt big corporations, its own military healthcare system,
other churches, and small businesses from the HHS mandate, yet
it will not offer the same protection to a group of nuns
serving the elderly poor.
The second principle that I would like to discuss is that
religious organizations that are simply trying to do their
charitable work should not be discriminated against merely
because they are religious. America's faith communities feed
the hungry, house the homeless, and provide many other
services, yet some States have laws on the books that make it
difficult for these groups to do their good work. These laws
include Blaine Amendments.
One current case on the Supreme Court's docket, Trinity
Lutheran Church against Pauley, illustrates the problems
associated with Blaine Amendments. In that case, Missouri's
Blaine Amendment prevented a religiously affiliated preschool
from receiving a State grant to refurbish its playground even
though other nonreligious schools could receive funds to do the
very same thing.
In another Blaine Amendment case, Becket represented
Prisoners of Christ, a small nonprofit that has partnered with
the State of Florida to help recently released prisoners
reenter society. With a success rate at nearly three times the
national average, Prisoners of Christ has helped 2,300 former
inmates to get back on their feet. Despite these impressive
results, an activist group relying on Florida's Blaine
Amendment sued to prevent the State from partnering with this
faith-based group. We successfully defended the prison ministry
against this challenge, and Prisoners of Christ continues to
partner with the State of Florida to do its vital work,
reducing recidivism rates.
In conclusion, Becket applauds Congress' commitment to the
principle that religious liberty is fundamental to freedom and
to human dignity.
And I thank you for your time and look forward to any
questions you may have.
Mr. King. Thank you, Ms. Smith, for your testimony.
And the chair now recognizes Rabbi Saperstein for his 5
minutes.
Rabbi.
Rabbi Saperstein. Chairman King, Ranking Member Cohen, and
members of the community, over the past 2 years--over the past
2 years, I was honored to serve as the United States Ambassador
at Large for International--this is on?
Mr. King. Turn on your mike, please.
Rabbi Saperstein. Sorry.
Over the past 2 years, I was honored to serve as U.S.
Ambassador at Large for International Religious Freedom and had
the privilege to work closely with many of you on both sides of
the aisle and many of those in the organizations represented
here. This was an issue that galvanized people across
ideological, religious, political lines, and I would
acknowledge particularly Mr. Franks' work in this effort.
It is, therefore, especially painful for me that in our own
Nation, a limited number of core issues and religious freedom
so divide us. What I believe the issues we discuss--while I
believe the issues we discuss here are of the utmost
importance, at this time, when we are reflecting on the state
of religious liberty in the United States, let us not lose
sight of the fact that compared to other nations, the freedoms
we have to worship; to organize our religious institutions and
communities as we see fit; to celebrate our festivals openly,
freely, and safely; to proselytize; teach, preach as we see
fit, remains inspiring.
The--permit me to focus on three general areas this
afternoon: The executive order on the immigration refugee, the
Johnson amendment repeal, and the purported executive order on
religious freedom.
The widespread opposition to the Muslim ban is set in the
context and heard through the filter of months of anti-Muslim
rhetoric in the campaign; threats of a Muslim registry; the
President's explicit statements, even after the election,
referencing a Muslim refugee ban; significant increase in hate
crimes. You eluded, Mr. Cohen, to the new report that came out
from the Southern Poverty Law Center and the state of new anti-
Muslim hate groups. Reports of children who are bullied at
school; increased opposition to mosques being built in
communities, desecration, arson of mosques, and other communal
sites; harassment on the internet, by strangers on the street.
As I have found in so many nations across the globe,
impingement on religious freedom includes the pressures and
fears that emanate from perceived societal and governmental
hostility, which chill open expression of religious identity in
communal life.
The President has indicated that he wants to change the
Johnson amendment, totally destroy it, as he said at the
National Prayer Breakfast, which prohibits houses of worship,
like all tax-exempt organizations, from endorsing or opposing
political candidates and parties. There are four reasons why
the amendment should not be changed.
First, if houses of worship become involved in campaigning,
they run a serious risk of new extensive government regulation
and monitoring of their religious activities.
Second, the prohibition against electioneering by
nonprofits helps avoid undermining the structure of campaign
finance regulations. If political donors can bypass those
restrictions by giving their campaign contributions through a
church and getting a tax deduction for it, it would result in a
major diversion of campaign funding into houses of worship
which will become slush funds for campaigns. And since churches
do not report who their donors are, it would greatly reduce
transparency in election campaigns.
Third, repealing current law would almost certainly have a
divisive impact on houses of worship. We have enough divisions
over liturgy and music and pastors and sermons and theology
without importing America's explosively divisive electoral
politics. Our houses of worship are among the few places that
people of differing cultural, political, ethnic divides can
find a sense of unity and comity so desperately needed in our
Nation today.
And, finally, pastors and clergies already have the right
to speak about political issues, and even though it is being
debated in campaigns from the pulpit under the current rules
and a personal capacity without the use of church funding,
clergy have the same citizen rights to endorse or oppose
candidates or parties or anyone else.
The draft executive order that has been reported raises a
number of issues of primary concern. But at the core of those
concerns is the notion of a free exercise claim to
discriminate.
To my colleagues here and the distinguished members of the
committee, help me understand what are the limits of this right
being asserted to discriminate. If an employer, small business
owner, a head of a religiously affiliated nonprofit asserts a
insincere religious belief that Blacks are inferior to Whites;
Catholics, Muslims, Jews, and Hindus are inferior to
Protestants; differently abled are inferior to nondisabled;
Latinos to Anglos, if they assert a sincere belief that
religious quality of their business and their nonprofit
requires that they only serve or hire those of the same
religion, do they have the right to bar those customers and
employees who are members of what are protected classes?
Even if we agree that racial discrimination should be
treated differently, if religious claims to discriminate must
be accommodated, it threatens the entire scheme of civil
rights. It will affect the LGBT community particularly, women
particularly. And the principle that government money should
not be used in tax dollars to discriminate is an important
bedrock core.
Our courts, including the Supreme Court today, has upheld
the right, the compelling interest to end discrimination as a
justification to limit the free exercise of religion. We need
to work together to find ways to balance it to embody as much
as possible without losing either of the two principles.
Mr. King. Thank you, Rabbi Saperstein.
The chair now recognizes Mr. Mattox for his testimony.
TESTIMONY OF CASEY MATTOX
Mr. Mattox. Mr. Chairman, members of the committee, my name
is Casey Mattox. I am senior counsel with Alliance Defending
Freedom.
Our Nation enjoys a rich heritage of protecting First
Amendment freedoms, ensuring Americans are able to freely speak
and act consistent with their beliefs, even when those beliefs
are unpopular. In fact, until very recently, a hearing on
religious freedom might have been rather boring, because we
would have all been on the same side.
Just weeks after Roe v. Wade, even its defenders supported
the Church amendment, named for its democratic sponsor,
ensuring that the government could not force Catholic hospitals
and medical professionals to violate their conscience. It
passed 372 to 1 in the House and 92 to 1 in the Senate. That is
naming a post office territory. And I doubt any legislation any
of you have ever advocated for has had that kind of support.
That bipartisanship on conscience persisted with Presidents
Carter and Clinton signing additional religious freedom laws.
We have united to protect everything from wartime conscientious
objectors to the rights of parents to direct their children's
education.
The returns on America's investment in religious freedom
are not just a diverse and pluralistic society, but over $1
trillion in services provided by religious ministries and
nonprofits because they are free to serve their communities
consistent with their faith. Sadly, in recent years, this
commitment to preserving religious freedom has become
contingent on whether the person's beliefs conform to the
prevailing government orthodoxy.
Justice Alito rightly called the growing threat of
government to individual conscience ominous this past summer in
his dissent in the case, and for good reason. ObamaCare forced
the Little Sisters of the Poor and religious colleges to serve
as a drug mule in violation of their conscience, but now its
compelling some families to pay for other people's elective
surgical abortions. In California, with the prior
administration's blessing, of even mandating that churches pay
for abortions from the offering plate.
You have also heard of many individuals in ministries being
targeted by the government for their suddenly controversial but
historically common belief about marriage. Just this morning,
the Washington State Supreme Court ruled that the State can
force a 72-year-old grandmother to create custom expression for
an event that violates her conscience. Since when did we decide
it is okay for the government to personally and professionally
destroy someone because of their beliefs? This should frighten
all of us.
You can celebrate the kind of government-compelled speech
and targeting of religious beliefs that happened to the
Stormans and Baronnelle if you like, but you can't do that and
claim that you support religious freedom. And this ominous
threat to religious freedom is impacting people who could never
have dreamed that the fight would come to them.
Donald and Ellen Vander Boon owned the West Michigan Beef
Company, a meat processing facility employing over 45 hard-
working Americans and putting food on the table for countless
families. They are at risk of having their plant shut down
because the USDA inspector claimed that an article discussing
marriage that Mr. Vander Boon had left on the break room table
violated a new USDA antiharassment policy.
Or even children's safety on playgrounds. We will be before
the Supreme Court later this spring in Trinity Lutheran because
the State of Missouri rejected a preschool from a program
supplying recycled rubber tires for playground services solely
because the church runs the daycare.
The 115th Congress and the new Trump administration have
much to do to restore respect for these fundamental freedoms.
Thankfully, President Trump, recognizing that religious freedom
is good for everyone, promised during his campaign that he
would make religious liberty his first priority. We hope that
he will keep his promise and sign an executive order ensuring
Americans are not unfairly punished by the Federal Government
for peacefully living consistent with their beliefs. And his
commitment should also embolden Congress to lead in preserving
fundamental freedoms by passing legislation like the Conscience
Protection Act, the First Amendment Defense Act, and the Free
Speech Fairness Act. But this leaves me to my final point.
To fully address the future of religious freedom, we must
also address the growing disregard for the First Amendment on
our university campuses. Today's students are tomorrow's
members of Congress, judges, teachers, and voters. They will
only be able to protect the First Amendment if they understand
and value it. But our universities are, frankly, failing.
Heavily funded by taxpayer dollars, they are silencing
students' speech through speech codes, speech zones, bias
response teams, not teaching them to civilly engage in a
marketplace of ideas where the confidence that in America you
are free to speak and act consistent with your beliefs. ADF has
assisted hundreds of students and student groups of varying
religious and political beliefs.
Just recently, a Michigan Young Americans for Liberty
student arrested for distributing copies of the Constitution on
her own campus. And Young Americans for Freedom at Cal State,
L.A., where faculty members actually linked arms with others to
prevent students from entering an auditorium to hear a speech
on, ironically, freedom of speech. These cases aren't just
about these students, but the First Amendment lessons being
taught to all the future legislators, teachers, and voters on
those campuses.
Congress has a responsibility to ensure that the hundreds
of billions of dollars in Federal taxpayer funds are being used
in a way that advances, not undermines, respect for First
Amendment rights of all Americans.
Mr. Mattox. Members of the committee, the real test of
liberty is what happens when you disagree? Please don't allow
the current politically popular beliefs to become a litmus test
for participation in civil society. Demand more from the public
universities that are training the next generation, and
preserve every citizen's freedom to peacefully live and work
consistent with their conscience and free from fear of
government punishment. Thank you.
Mr. King. Thank you, Mr. Mattox. Thank you for your
testimony.
And I will now proceed under the 5-minute rule with
questions. And I will begin by recognizing myself for 5
minutes.
And I will say, Mr. Mattox, on campus and around in the
communities around America, we are seeing more and more
pushback on freedom of speech and the resistance you described
in your testimony. And aside from what Congress can do, how
would you suggest we approach this? I don't remember any time
in the couple-plus centuries of our country that we have had
this kind of resistance to freedom of speech. How do you
describe this drift, what has caused it, and what would you
suggest we do about it as a people?
Mr. Mattox. Thank you for the question. You know, I think
it is directly tied to this larger cultural problem we have. I
think that on many university campuses, you have administrators
who don't seem to understand that they are, in fact, bound by
the First Amendment, that it actually applies to them. And they
communicate that message to their students. They act as if they
are a private institution separated from whatever constraints
the First Amendment would provide. And that is the great
concern, that students are going to teach--are going to carry
that lesson forward, this is how you act as a government
official. Because in many cases----
Mr. King. That is why professors get tenure, and they are
insulated from criticism, including criticism from their
students, and so this grows on our college campuses. And do you
think it is because the public doesn't know or understand this
is going on? And why do people write tuition checks to people
that will educate them in such a way?
Mr. Mattox. You know, the only permit that a student should
require to be able to speak on a university campus is the First
Amendment. And I think everyone seems to agree with that. I
think the difficulty is that people don't--people don't grasp
the connection between what is happening on campuses and what
is going to end up happening in the rest of our culture. They
think of students as being there in that place, and they are
not permitted to speak freely, and that seems like a problem
for them. But the bigger problem is that those people are going
to leave those campuses, and they are going to be the people
who are going to be sitting on this dais one day. So it is
critically important that they are learning about the First
Amendment, understand it, and see how it is supposed to
actually play out.
Mr. King. Now we have students on campus that are learning
that if their feelings are hurt, others don't have a right to
freedom of speech, and we are being trained to have the
sensitivity, the responsibility to anticipate if somebody's
feelings are hurt before we speak something that may well be
objective truth. So I just take this another step, then, and
say we are--one of the foundations of Western civilization is
rational thought and reason.
Do you see that being eroded in colleges and universities
across our country?
Mr. Mattox. Well, it is certainly difficult on many
university campuses these days to actually try to have an
honest conversation, because you will have speech codes. You
know, the people have calculated that only about 6 percent of
universities actually have written policies that are--that
adequately protect students' First Amendment rights. So it is a
serious problem.
Mr. King. Thank you, Mr. Mattox.
And I turn to Rabbi Saperstein. And I just--as I listened
to your testimony, I began to think about a circumstance that
took place at Walter Reed hospital just a few years ago where
they came out with a ruling, and it was a 4-page document.
Speaking from memory here. On the fourth page of the document,
part of that memo was that the religious workers who came into
Walter Reed hospital would not be allowed to bring in any
Bibles or other religious artifacts, even to go in and to serve
our wounded troops, some of whom may be spending their last
days at Walter Reed. And it was a very precise and inclusive
order, and it was definitive. It wasn't--you couldn't--it
wasn't ambiguous.
And I would ask where you would come down on an order like
that that was part of this--remains now part of the public
record of Walter Reed hospital.
Rabbi Saperstein. I am not familiar with the particular
situation, but stepping back from it and just answering that on
general principles, a government official has a right to wear
their own religious garb, here, of course, the yarmulke, Sikh
turban, whatever it might be, that identifies them, who they
are. They are not allowed to use their position there to
proselytize or in any course or way to offend people.
If somebody who is a patient asks for something,
accommodating that kind of request so that they can live out
their religious conscience is an appropriate action here. So--
Mr. King. Then you would say that they should be free to
bring in their religious artifacts, they just can't be allowed
to force that on an unwanted scenario?
Rabbi Saperstein. I am not sure what it means to bring it
in. If they are bringing it in, carrying it around with them,
it is--you know, the difference between forcing it on them
becomes a little bit opaque. But I think the general principle
between their own identity and what they are able to do in a
way that wouldn't convey they are trying to impose it on others
is an important----
Mr. King. I would point out they reversed that decision
before sundown that day. And I am glad that doesn't stand
today. And I appreciate your response.
And I would like to just quickly stretch the limits a
little bit and say to Ms. Smith, can a person be forced to
violate their conscience by, I will say, a Federal edict that
has to do with religious liberty? For example, baking a cake
for a wedding you might disagree with the scenario of that
wedding, or setting up flowers, those kind of things? Can they
be forced to violate their conscience?
Ms. Smith. In those cases, I want to emphasize that I
really think we are not dealing with blatant discrimination.
What we are dealing with is freedom of expression. And I think
all of us in this room would agree that in a robust,
pluralistic society like America is, where we have so many
different views on so many fundamental issues--life and
marriage and sex and abortion and death penalty--that we need
to be able to allow others to express those views, to live out
their religious freedom without government coercion.
But more importantly, we should not be allowing government
to step in and choose winners and losers and say, we are going
to penalize you because you have a view that is in the minority
that we don't support. And so I think these cases really need
to be viewed in the lens of freedom of expression, and that we
need to protect that freedom of expression for those religious
individuals.
Mr. King. Thank you, Ms. Smith. I appreciate it.
And I yield now to the--recognize the gentleman from
Tennessee for his 5 minutes.
Mr. Cohen. Thank you, sir.
Ms. Smith, following up on that question. What if a
couple--that bakers decided that they didn't want to bake a
cake for an interracial couple? Would Loving v. Virginia have
any effect in civil rights laws in not allowing--requiring them
to bake that cake, give them a pizza, or whatever other things
we have had?
Ms. Smith. Well, again, just going back and looking at some
of the examples that had been part of the public discourse on
this subject over the last few years. For example, Walmart
decided that it didn't want to bake a cake that had a
Confederate flag on it. Should we force Office Depot to print
posters that deride Planned Parenthood? No, we shouldn't.
There are a variety of different moral views that have been
taken by corporations and individuals, and we protect that free
expression because it is a matter of free speech. And, again, I
would just point you to the Hurley decision, which was a
unanimous opinion at the Supreme Court, where the Supreme Court
said that expression trumps antidiscrimination laws.
So I think we really need to be sensitive to the fact that
these cases are really about expression, and whether we agree
or not with the expression, we need to defend the right of the
speaker.
Mr. Cohen. So you are saying that they could deny an
interracial couple because they didn't agree with interracial
marriage, is what you are saying, because that is their right
of expression.
Ms. Smith. No, that is not what I said. And I think what is
important to contrast in the Loving----
Mr. Cohen. Can you answer the question?
Ms. Smith. In the Loving case, I think it is really
important to contrast what the Supreme Court said in
Obergefell. When you look at the language that Justice Kennedy
uses in the majority opinion in Obergefell, he refers to the
religious beliefs of those who believe in traditional marriage
as decent and honorable. These are sincere beliefs that are
held by good people.
And the language that the Court--in fact, all nine members
of the Court--adopted in that opinion was one to say, look,
there are a lot of different views on marriage. We should
encourage that diversity of views on marriage, and these are
decent and honorable people who hold these views, and we are
not going to deride them here. Those are the words of Justice
Kennedy.
So I think there is a very different case when you are
talking about Obergefell than when you are talking about a case
like Loving.
Mr. Cohen. So in Loving, you are saying they can or cannot
discriminate against the interracial couple? Yes or no?
Ms. Smith. Look, what I am saying is race is very different
in our society. Okay? In every context----
Mr. Cohen. The Supreme Court is the same, though.
Obergefell and Loving are both Supreme Court cases, raising the
idea that there is a right to get married.
Ms. Smith. So race is very different, and race has always
been different in our constitutional lexicon. We have always
recognized that the government has----
Mr. Cohen. So you are saying they would not be allowed to
discriminate----
Ms. Smith. We have always said that the government has a
very powerful interest----
Mr. Cohen. Ms. Smith, you are not going to answer the
question. It is a yes-or-no answer. Yes or no, could the couple
say, I will not do you a cake because I don't believe--my
religious beliefs do not allow me to give an interracial couple
a cake? Yes or no?
Ms. Smith. I believe that race is special. Race is
different.
Mr. Cohen. Rabbi Saperstein, how do you think about that?
Can you give me an answer how you think that would work?
Rabbi Saperstein. I think that the compelling interest of
the government in ending discrimination here would limit the
religious claim involved. If they want to participate in
commerce, then they have to abide by the antidiscrimination
rules. If there is a way within that to accommodate some of the
religious freedom claims, that is a discussion we can have. But
the core answer to your question is the compelling interest of
discrimination prevails. And I think that was at the basis of
the Supreme Court's nine-nothing decision today in the Arlene
Flower case.
Mr. Cohen. Have you seen a rise in anti-Semitic and/or
anti-Muslim behavior in the country since the election of 2016
or during the campaign of 2016 forward? Rabbi Saperstein.
Rabbi Saperstein. Yes. You know, there have been reports
from the ADL and Southern Poverty Law Center from police
departments about significant escalation in hate speech, hate
crimes against, particularly, the Muslim and the Jewish
community. Very alarming.
Mr. Cohen. It is alarming. And I can testify of my own that
I didn't get too many jabs for being Jewish until this past 3
to 6 months. And I have seen a lot of them on social media and
it is scary.
Rabbi Saperstein. This campaign seemed to have lifted some
of the powerful cultural and social constraints that we had
against hate speech in this country. Millions of people we know
hold prejudicial views, but you didn't articulate them except
on the fringes. But the confluence of the internet's anonymity
that allows for that expression and then the discussion in the
campaign has lifted some of those constraints. And I think--I
hope people on both parties, leaders from both parties, will
work together with the religious leaders of America to help
restore some of those restraints.
Mr. Cohen. One last question. Do you agree with Ms. Colby's
claim that the report by the United States Commission on Civil
Rights disparages religious freedom or that there is an erosion
of religious liberty in America? Rabbi Saperstein.
Rabbi Saperstein. Yes. I was troubled by some of the
language in the report, Mr. Cohen. I thought it was excessive
in this. I think where they come down on that core question I
indicated of, is there a compelling interest in terms of
enforcing discrimination laws that will restrain the exercise
of religion, make those people claim a right to discriminate. I
think that finding is a correct finding. I thought the language
in it was excessive and was not helpful in terms of giving the
respect to religious freedom that the fact it is enshrined in
our First Amendment requires.
Mr. Cohen. Thank you, sir.
Mr. King. Thank you. Mr. Cohen yields back.
And the chair now recognizes the gentleman from Florida,
Mr. DeSantis.
Mr. DeSantis. Thank you, Mr. Chairman.
Rabbi, I read your testimony, and you talk about the
President's executive action to prevent terrorist infiltration
into America, that it would be barring Muslim refugees from
seven countries and, effectively, favor Christians at the
expense of Muslims. Correct?
Rabbi Saperstein. Yes.
Mr. DeSantis. What is your basis for that?
Rabbi Saperstein. The countries selected were countries
with, overwhelmingly, a Muslim population----
Mr. DeSantis. That is not true. There are two different
aspects. The first aspect are seven countries that Congress had
previously identified. That was for a 90-day overall
immigration moratorium. The second part of it applied to
refugees was in the 120-day moratorium on the entire refugee
program worldwide. So--and then within that refugee----
Rabbi Saperstein. And he made clear afterwards, the
minorities in those countries should have preference
afterwards. And that means in the majority Muslim----
Mr. DeSantis. Worldwide. No, no, no. The refugee program,
in the executive order, it said that the relevant service
secretaries are further directed to make changes, to extent
permitted by law, to prioritize refugee claims made by
individuals based on the religious-based persecution, provided
that the religion of the individual is a minority religion in
the individual's country of nationality. That applies
worldwide. That doesn't just apply to Christians. It is not
favoring a Christian refugee over a Muslim refugee.
Now, maybe in your testimony you meant to just simply say
that it is much more likely that a majority of Muslim country
would oppress a Christian minority than vice versa. I don't
know if that is what you are saying. But the executive order
does not say that. You are conflating one part of the executive
order with another.
And I appreciate your coming here, but if you are
testifying as an expert on the law, you should be doing it and
putting it out there accurately. And you didn't do that in this
case, and it is disappointing to read that.
Rabbi Saperstein. In addition--in addition to the fact
that, insofar as those countries are concerned, the seven
countries are concerned, that it would--that the favoring of
minorities would result in the non-Muslim population----
Mr. DeSantis. That happens worldwide. Worldwide.
Rabbi Saperstein. Insofar--insofar as that is the case, it
also has to be said in the context of everything else I cited
in the testimony.
Mr. DeSantis. The seven countries are not relevant.
Rabbi Saperstein. All of the discussions, including the
President's, after the election about--talking about a Muslim
ban, that is a filter through which the world hears it, that is
a filter through which religious leaders on the right and the
left in America----
Mr. DeSantis. That was not, in fact, what was put in there.
And so we deal with things. We actually read the statutes. We
read these orders. We read the different things. And I
appreciate the rhetoric, and maybe that is not helpful, but
that does not change the fact that the refugee provision for
religious persecution was for any minority religion in the
entire world that applies to Muslims, it applies to Christians.
And, yes, in the serious situation, we had a situation
where 10 percent of the population is Christian. They were
facing a disproportionate amount of persecution, and the amount
of refugees that made it to the United States were a small,
small fraction of 1 percent.
Let me ask you this, Ms. Smith: We now have a change of
administration. There have been cases about Little Sisters of
the Poor, a lot of regulatory burdens on the free exercise of
religion. We talk about things like Hobby Lobby, that was not
enacted by a statute. That was the bureaucracy, you do this,
then the bureaucracy grows, and it infringes on people's free
exercise of religion.
So with a new administration and a new HHS Secretary, are
there going to be opportunities to relieve these burdens
appropriately through the--through the administrative process
rather than having to go to court?
Ms. Smith. Well, we certainly hope so. I first just want to
thank Members of Congress who have stood up for the Little
Sisters of the Poor and who have advocated for them. We really
appreciate those of you who have stood by us for the last 4
years in this litigation. It has been really astonishing to see
the government continue this fight against the Little Sisters
and to argue over 4 years that there was really no other way
that they could accomplish this goal without using the Little
Sisters' healthcare plan. You know, we can put a man on the
moon, and we can put mail in everybody's mailbox every day, but
we can't figure out a way to get these contraceptives to women
without using the nuns' healthcare plans.
So I do think that it is particularly astonishing in light
of the fact that the government has granted exemptions to big
corporations, its own military healthcare system; it has
granted exemptions to small businesses and other churches. It
certainly can broaden the exemption for the Little Sisters of
the Poor. And we hope the administration will do just that and
allow the Little Sisters to get back to the good work that they
do serving the elderly poor that they have done for the last
175 years.
Mr. DeSantis. So I think that, as government expands, we're
going to continue to have these conflicts. And if you had a
limited government and actually let the people closer--
governments closer to the people resolve a lot of this stuff,
we would have less conflict as a society. And so I hope that
this Congress will take that under advisement and govern itself
accordingly.
And I yield back.
Mr. King. I thank the gentleman from Florida.
And now I recognize the gentleman from New York, Mr.
Nadler, for his 5 minutes.
Mr. Nadler. Mr. Raskin is next.
Mr. King. I would be happy to recognize Mr. Raskin for his
5 minutes.
Mr. Raskin. First of all, I want to thank the gentleman
from New York for his graciousness.
Thank you, Mr. Chairman.
I want to start, not by berating or castigating any of our
witnesses, but thanking all of you for your work on behalf of
religious freedom and religious liberty, which gets to my first
question. Some people would cast the current global political
condition as a war between Christianity and Islam, which
obviously promotes a certain negative dynamic in terms of our
ability to interact with more than 1 billion people on Earth.
The other way of framing America's role in the world is
that we were the first nation conceived in revolution against
monarchy and theocracy to declare religious liberty and
religious freedom and political freedom, the hallmark of our
society.
Now, it was complicated, though, because the people who
first got over here were religious refugees. The Puritans were
fleeing the Anglican Church. And so they got to freedom in
Massachusetts. Hallelujah. But then they turned around and set
up their own little theocracy and began to tyrannize the
Quakers, who were driven to Rhode Island and then Pennsylvania,
where you also found the Anabaptists. And every State kind of
developed its own religious character. My home State of
Maryland, the Free State, was a State that was open to
Catholics being first class citizens, but they discriminated
against Jews and said they couldn't hold office and so on. And
that was the pattern around the country.
The development of our religious freedom is the chronicle
of the progress of two principles: One is that everybody can
practice exactly as they want to, as they see to worship, but
also they can't gain state power and oppress everybody else.
The first is the free exercise principle. The second is the
Establishment Clause: no establishment of religion.
Okay. Now, Rabbi and Ambassador Saperstein, let me start
with you. To what extent in your work as Ambassador At Large,
Religious Ambassador, were you able to carry the real great
story of America to the rest of the world? To what extent are
you able to say that what makes us a miraculous country is the
fact that we separated church from state, we broke from the
history of inquisition and crusades and witchcraft trials and
so on, and we proclaimed religious freedom for each person? To
what extent is that story being heard around the world?
Rabbi Saperstein. It was a central message in my work. It
was already recognized by thoughtful people and leaders,
political leaders and religious leaders with whom I met across
the globe. In addition to that, the confluence of the three
clauses of the Constitution--no religious test for office, free
exercise of religion, no establishment of religion--it is
something--a wall keeping government out of religion, allowing
religion to flourish with a diversity, strength, and robustness
here unmatched almost anywhere in the democratic world. That
idea lead to the proposition that, in America, for the first
time in human history, your rights as a citizen would not
depend upon your religious practices, beliefs, or identity----
Mr. Raskin. Or your membership----
Rabbi Saperstein. And it was a central message in the work
that we did.
Mr. Raskin. Well, thank you very much for your work.
Forgive me for rushing everybody through. We're allowed only 5
minutes here. I'm a constitutional law professor. I would stay
here all day with you guys if I could.
So let me just see if we can do this one on a yes/no basis.
Leaving aside the controverted implications of the President's
executive order for a moment, do all of you agree that it would
be unconstitutional to have a ban on Muslims entering the
country? Formulate it like that, and perhaps we can just start,
Ms. Colby, with you and just go down.
Ms. Colby. Yes, a ban on Muslims.
Mr. Raskin. Ms. Smith, would you agree that a ban on
Muslims would be unconstitutional?
Ms. Smith. I would agree with that.
Mr. Raskin. Rabbi.
Rabbi Saperstein. I would.
Mr. Mattox. I am not an immigration lawyer. So I am going
to have to beg out of the question. So I apologize.
Mr. Raskin. Would all of you agree that creating a Muslim
registry would be unconstitutional in America?
Ms. Colby. I'm not sure what a registry is.
Mr. Raskin. Well, compelling everybody of a particular
religious faith to go and sign their name on a government
document declaring their religion to be Muslim.
Ms. Colby. That would be a violation of the exercise.
Mr. Raskin. You would agree that is unconstitutional, Ms.
Smith?
Ms. Smith. I'm a little hesitant to answer hypotheticals
where I'm not sure of the exact contours of what you're talking
about.
Mr. Raskin. Well, imagine a world without hypotheticals,
Ms. Smith. There would be no law professors.
Ms. Smith. I understand that. But I'm a litigator. I am not
a law professor. So I care about facts. I care about concrete
circumstances.
Mr. Raskin. As a litigator, you understand that the bench
will ask questions that you have to answer.
So let's take it away from Muslims then. Would it be
unconstitutional to say that all Catholics, all Jews, or all
the Seventh-day Adventists have to go and append their name to
a public document?
Ms. Smith. I think, as a general matter, those types of
things are highly suspect, yes.
Mr. Raskin. Rabbi Saperstein.
Rabbi Saperstein. Singling out any protected group,
including religious group, for behavior--for treatment that you
do not do to other similarly situated groups is inherently an
unconstitutional standard and barred by the Constitution.
Mr. Raskin. Mr. Mattox.
Mr. Mattox. The example there actually is similar to a
situation that was being imposed by the Department of Education
this past year where they were listing Christian colleges and
calling them out as particularly problematic. And those sorts
of things raise concerns. That's probably as much as I can say
in the immigration context----
Mr. Raskin. No. This is not for immigrants. I'm talking
about for citizens.
Mr. Mattox. No, that would be problematic.
Mr. Raskin. You agree it would be unconstitutional to ask
everybody in the country who belongs to a particular religious
group to go append their name?
Am I out of time, Mr. Chairman? I'm sorry. I had just begun
with you guys too.
Mr. King. The gentleman from Maryland yields back.
And now the chair would recognize the gentleman from
Arizona, Mr. Franks, for his 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I'm glad to see you sitting in that chair. I
know that you're a man deeply dedicated to the Constitution.
And it was my honor to sit in that chair at one point in my
life, and it is indeed a special privilege. And I'm glad you
are where you are, sir, and I congratulate you if somebody
hasn't done so. I think this is your first meeting, your first
hearing, and it's especially appropriate in my mind that we're
talking about religious freedom because religious freedom is,
in my judgement, the cornerstone of all other freedoms. It is
astonishing, when you look across the world, those places where
there is religious freedom, so many other things work out well
too. There is freedom of expression. There is freedom of press.
There is abundance, many times, economically. But where there
is religious persecution and religious freedom is not allowed,
all kinds of tragic things happen. So I can't express to you
the level of significance that I hold this subject and
appreciate you for understanding that for your very first
hearing as the chairman of the Constitution committee.
You know, the Bill of Rights passed by the First Congress
included protections for religious freedom because, without
religious freedom and freedom of conscience, obviously, as I've
said, all other religious liberties, all other liberties,
religious or otherwise, essentially cease to exist. And if
there's anything that characterizes America, it is that we hold
these truths to be self-evident, that we believe that at that
time they believed we were all created, and that's what made us
equal. So, essentially, the idea of America was a religious
statement, a pretty heavy thing. So if we don't at least
protect the right of those people that have been the progeny of
that great document to embrace religious freedom, then I think
we make a terrible mistake, and we sort of undermine and
vitiate the whole purpose for this Nation.
In America, every individual has the right to religious
freedom and the First Amendment expression so as long as they
do not deny the constitutional rights of another. And true
tolerance, in my judgment, Mr. Chairman, doesn't mean that we
have no differences. It means that we're kind and decent to
each other in spite of those differences. We recognize that we
have differences, but we embrace those differences, not because
we agree with the other guy, but because we see the other guy
as a fellow human being. And somehow we're all just trying to
find our way home here, and we have a sense in the core of
every human soul I think that there's something out there
bigger than ourselves, and we want to embrace that. And the
quickest way I think to bring people together is to recognize
that, and I hope that we do.
Thomas Jefferson once said: The constitutional freedom of
religion is the most inalienable and sacred of all human
rights. Now, those are not my words, but I certainly think that
he's on to something there.
So, Ms. Smith, in your testimony, you detailed the many
ways in which minority faith groups have benefited from
statutory protections for the free exercise of religion, like
the Religious Freedom Restoration Act, RFRA, and the Religious
Land Use and Institutionalized Persons Act. And recently some
have called for RFRA to be amended, as you know, making it
essentially inapplicable to Federal laws like the Civil Rights
Act of 1964. Do you believe that amending RFRA could cause harm
to the minority faith groups it was intended to protect and
essentially for the last 20 years? What do you think the
implications are?
Ms. Smith. I do. And thank you very much for that question.
I think if you look back over the 24 years that RFRA has been
on the books and you do a survey of all of the cases in which
RFRA has been cited--and we've actually done this at Becket--
not just on the Federal level but also on the State level, I
think it's really astonishing to notice that most of the cases
where RFRA has been used as the basis for a decision are in
some ways protecting religious minorities in our country. And I
highlighted some of those examples in my written testimony and
touched on a few of them today in my oral statement, but, you
know, Captain Singh, for example, you know, he relied on RFRA.
Pastor Soto is another Becket client. He's a Native American
pastor. The government came in and raided his powwow and took
away their eagle feathers. And it was RFRA that actually
allowed us to get those eagle feathers back for him.
And there are other stories. There is a wonderful story of
a Native American kindergartner in Texas where he wanted to
wear a braid for religious reasons, and the school grooming
policies forbade him from doing that. And it was the Texas
State RFRA that allowed him to wear his religious braid.
There is another story that didn't turn out so well that I
think is illustrative of how important State RFRAs also can be,
and that is of a Kansas woman who was a Jehovah's Witness, and
she needed a bloodless liver transplant. And, at the time, that
was not available in Kansas, but it was available in a
neighboring State. She was not able to get permission from
Medicaid to get permission to go out of State to get that
procedure so she brought a lawsuit. And, at the time, Kansas
didn't have State RFRA. So she had constitutional grounds. Long
story short, as her case went up on appeal, her health
deteriorated, and by the time her case ended, she was no longer
in a position to receive that liver transplant, and she died.
Now had there been a RFRA in Kansas at that time, her lawsuit
would have been much quicker, and she probably would be alive
today.
So these stories just demonstrate the power of State RFRAs
and what they do and what they can do to protect religious
minorities around the country.
Mr. Franks. Mr. Chairman, my time is gone. Thank you, sir.
Mr. King. I thank the gentleman from Arizona particularly
for his remarks and the questioning here today.
And now I would recognize the gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Let me ask Rabbi Saperstein the following. You've seen--or
I assume you've seen--the draft executive order on religious
freedom that's been circulating in the news media that the
Trump administration is supposedly considering implementing.
I've seen the draft language. I want to ask you about that
draft executive order. The executive order specifies a set of
core beliefs for special protection, namely the belief that
marriage is or should be recognized as union of one man and one
woman, that sexual relations are properly reserved for such a
marriage, that male and female and their equivalents refer to
an individual's immutable biological sex as objectively
determined by anatomy, physiology, or genetics at or before
birth, and that human life begins at conception and merits
protection at all stages of life. The order does specify
religious--the order specifies religious views about sex. If
this draft order says only those specified beliefs would
receive protection and accommodation by the Federal Government
or special protection and accommodation by the Federal
Government, would that executive order be constitutional?
Rabbi Saperstein. I think it raises very serious equal
protection issues as well as turning over--when you are talking
about government contractors, turning over discretionary
judgment to that contractor based on their religious belief as
to when government services and benefits can be provided to
those they serve, and that raises Grendel's Den/Larkin problems
that the Court has been very, very resistant about. So I think
it raises significant constitutional problems.
Mr. Nadler. Would it not also raise Establishment Clause
questions, setting one belief system or a set of beliefs ahead
of others?
Rabbi Saperstein. I think this does.
Mr. Nadler. Thank you. Let me also note that I was one of
the people who was instrumental back in 1993 in passing RFRA,
as were you, Rabbi Saperstein, and I was one of the two authors
of RLUIPA, Religious Land Use and Institutionalized Persons
Act. And I take pride in those.
I think, however, that they are subject to misuse and that
I think much of the debate we are having is really a debate
about a sword versus a shield. I always viewed RFRA and RLUIPA
and Religious Freedom Act generally as a shield for your
religious beliefs. The government cannot impose religious
beliefs on you, and government should not be able in normal
circumstances, in the absence of some life-threatening thing or
something, to inhibit your ability to follow your religion.
However, it should not be used as a sword to enable you to
impose your religious beliefs on someone else. It seems to me
that that's the questions that we've been getting into and that
we've been addressing so that if a--let's get to the question
of an employer who provides health insurance to his employee
and is mandated to do so by government or to pay a fine and his
religious belief--his religious belief--Walmart's religious
belief, if Walmart can be said to have a religious belief, says
that contraception is wrong, and, therefore, you, as a Walmart
employee, cannot get coverage for contraception in violation of
your belief that it is perfectly okay. How do you balance that?
Rabbi Saperstein. The key part of the logic of the Hobby
Lobby decision was that these accommodations on the least
restrictive means side of the analysis work because women have
a way to get contraception. It was built into the system. What
you can't do is have a system in which there is an exemption
that will leave women without that contraception, without that
kind of coverage. So I have serious problems.
May I also just point out one other crucial part of this?
In 3(c) of the executive order, it has your balancing test from
RFRA that everyone approves of here. When it gets to all of the
actual meat of the executive order in section 4, it drops all
of that. It says--the simple wording is the simple assertion of
a religious claim to discriminate in the areas you asked about
and a whole range of other areas in almost every agency in the
government, requires a simple sincere belief that you have a
right to discriminate, and then there's no balancing test, not
substantial burden, not compelling interest, not least
restrictive means. Just the assertion of the claim allows--and
this would radically--radically--revamp the very thing that's
been praised by my colleagues here of RFRA and the way that the
RFRA system works.
Mr. Nadler. That would say, in effect, that if you have a
religious objection to allowing a gay couple to come into your
restaurant--or, for that matter, by analogy, an interracial
couple, you have the right to do that, and the Civil Rights Act
is wrong to violate your religious freedom to discriminate on
the basis of your sincerely held religious belief that
interracial couples or gay couples shouldn't associate with
each other.
Rabbi Saperstein. Sadly, that's the way I do read the
executive order, Mr. Nadler.
Mr. Nadler. Thank you very much.
I see my time has expired.
Mr. King. The gentleman from New York has yielded back his
time.
The chair would now recognize the gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And I thank the witness for being here.
I understand, Ms. Smith, your comment that RFRA allowed
someone to wear religious clothing or braiding, but I still
believe that the United States Constitution is what allows
people to do that, whether or not there's a RFRA.
Unfortunately, there are some in the Nation that believe their
status as a pseudo-intellectual is somehow threatened if they
were to allow people to practice things that were inconsistent
with what other pseudo-intellectuals think is appropriate. And,
therefore, we have had our freedoms madly infringed upon.
It's also such an irony, for example, we see in Germany--
and I have German lineage on my father's side, my great-
grandfather came over in 1870. Because, I think, Germany was,
you know, behind the Holocaust, responsible for the death of
over 6 million Jewish people because they were Jewish people.
Even though I understand Mr. Soros' position that, you know,
probably everybody would have turned in fellow Jews, obviously,
that's not what happened. Some have a conscience, and some
don't. But I'm amazed to see Germany now bending so far
backwards. We don't even want to check to see if people coming
in feel just like Hitler did, that Jews are vermin and need to
be wiped off the Earth, because they are letting some people in
that believe that. They are so afraid of being called Nazis
that they are letting people in who were--their beliefs were
allied with the Nazi beliefs during World War II and totally
supportive of the Holocaust.
So I'm also a bit perplexed. When I look at the oath of
office I took as a prosecutor, as a member of the United States
Army, as a judge, as a chief justice, as a Member of Congress--
support and defend the Constitution of the United States
against all enemies, foreign and domestic--and yet I heard the
question from my friend across the aisle being put to the
witnesses about would it be unconstitutional to deny Muslims to
come into the country. Well, I would submit it depends on what
the specific person's beliefs were because thank God, most
Muslims don't believe that if they are going to be in America,
they need to supplant, destroy the U.S. Constitution, erect a
dictator, a caliph who will dictate how we can and will live,
because that is an enemy to the Constitution, and we have an
oath to protect that against all such enemies. But most
Muslims, they are thrilled to come in to the United States, be
able to worship as they wish. But there are Muslims--and I know
the President of the United States, the last President said
that ISIS is not Islamic. The trouble is he only had training
in Islam in his youth in Indonesia, as far as I know, unless
Pastor Wright did. But you have Baghdadi, the head of the
Islamic State, who has his Ph.D. in Islamic studies, and he
says: ``We are Islam. We are the true Islam. These other people
who don't want to destroy the United States and destroy the
Constitution of the United States and wipe out all those who
don't believe as we do, they are not true Islam.''
So, if those people want to come into the United States and
destroy our way of life--and it doesn't give me any comfort
that, not only do they hate Jews, but as Khalid Sheikh Mohammed
put in his pleading that's been declassified, he believes that
all Jews are vermin and should be killed, but also anyone who
has ever said that God has a Son, which would mean all
Christians. So he puts the Jews and the Christians together,
and he claims to be the ultimate Muslim, and he believes he has
the right and an obligation to wipe out Christianity and
Judaism.
And I would submit, Mr. Chairman, that if we're going to
keep our oath, we have an obligation to find out, not just if
somebody says Christians, Jew, Buddhist, whatever Muslim, but
what do you believe, and I believe that's where we have fallen
down, and that's what President Trump was trying to avoid,
people coming in so that we can vet them. Are you a Muslim who
believes that you can follow the Constitution, or are you one
that believes you need to destroy it? We need to find out how
to vet them, keep out those who do want to destroy us, allow
those in who won't.
I yield back, only because I'm out of time.
Mr. King. The chair thanks the gentleman from Texas, who
yields back the balance of time.
This concludes today's hearing. Thanks to all our witnesses
for attending.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is now adjourned. Thank you.
[Whereupon, at 2:28 p.m., the subcommittee was adjourned.]
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