[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




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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

                              ----------                              

                           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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