[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] STATE OF RELIGIOUS LIBERTY IN THE UNITED STATES ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ JUNE 10, 2014 __________ Serial No. 113-75 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://judiciary.house.gov __________ U.S. GOVERNMENT PRINTING OFFICE 88-241 PDF WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800 DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan Wisconsin JERROLD NADLER, New York HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT, LAMAR SMITH, Texas Virginia STEVE CHABOT, Ohio ZOE LOFGREN, California SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas DARRELL E. ISSA, California STEVE COHEN, Tennessee J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas JUDY CHU, California JIM JORDAN, Ohio TED DEUTCH, Florida TED POE, Texas LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah KAREN BASS, California TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana TREY GOWDY, South Carolina SUZAN DelBENE, Washington MARK AMODEI, Nevada JOE GARCIA, Florida RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island GEORGE HOLDING, North Carolina DOUG COLLINS, Georgia RON DeSANTIS, Florida JASON T. SMITH, Missouri [Vacant] Shelley Husband, Chief of Staff & General Counsel Perry Apelbaum, Minority Staff Director & Chief Counsel ------ Subcommittee on the Constitution and Civil Justice TRENT FRANKS, Arizona, Chairman JIM JORDAN, Ohio, Vice-Chairman STEVE CHABOT, Ohio STEVE COHEN, Tennessee J. RANDY FORBES, Virginia JERROLD NADLER, New York STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT, LOUIE GOHMERT, Texas Virginia RON DeSANTIS, Florida HENRY C. ``HANK'' JOHNSON, Jr., JASON T. SMITH, Missouri Georgia TED DEUTCH, Florida Paul B. Taylor, Chief Counsel James J. Park, Minority Counsel C O N T E N T S ---------- JUNE 10, 2014 Page OPENING STATEMENTS The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Chairman, Subcommittee on the Constitution and Civil Justice................................. 1 The Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice................................. 3 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary.................................................. 5 The Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia, and Chairman, Committee on the Judiciary 6 WITNESSES Mathew Staver, Dean and Professor of Law, Liberty University School of Law, Founder and Chairman, Liberty Counsel, and Chairman, Liberty Counsel ACTION Oral Testimony................................................. 8 Prepared Statement............................................. 11 Kimberlee Wood Colby, Director, Center for Law and Religious Freedom, Christian Legal Society Oral Testimony................................................. 49 Prepared Statement............................................. 51 Rev. Barry W. Lynn, Executive Director, Americans United for Separation of Church and State Oral Testimony................................................. 77 Prepared Statement............................................. 79 Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom Oral Testimony................................................. 98 Prepared Statement............................................. 100 APPENDIX Material Submitted for the Hearing Record Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice............. 131 Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary..................... 132 Material from the Anti-Defamation League (ADL) submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice................................. 134 STATE OF RELIGIOUS LIBERTY IN THE UNITED STATES ---------- TUESDAY, JUNE 10, 2014 House of Representatives Subcommittee on the Constitution and Civil Justice Committee on the Judiciary Washington, DC. The Subcommittee met, pursuant to call, at 3:10 p.m., in room 2141, Rayburn House Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. Present: Representatives Franks, Goodlatte, Chabot, Forbes, King, Gohmert, DeSantis, Smith, Cohen, Conyers, Nadler, Scott, Johnson, and Deutch. Staff Present: (Majority) John Coleman, Counsel; Tricia White, Clerk; (Minority) James Park, Minority Counsel; and Veronica Eligan, Professional Staff Member. Mr. Franks. The Subcommittee on the Constitution and Civil Justice will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. Good afternoon, ladies and gentlemen, and thank you for all being here today. Today, the Subcommittee will examine the state of religious liberty in America. This continues a tradition of this Subcommittee holding a hearing on this topic each Congress. And I will now recognize myself for 5 minutes for an opening statement. Thomas Jefferson once said, ``The constitutional freedom of religion is the most inalienable and sacred of all human rights.'' Religious liberty is our first freedom. It is the cornerstone of all other human freedoms. The Bill of Rights passed by the first Congress included protections for religious freedom because without religious liberty and freedom of conscience all other liberties cease to exist. Indeed, religious liberty is the wellspring of our other liberties and the defining statement of freedom in America. This belief is something that has set America apart from all other nations since the Declaration of Independence declared nearly 240 years ago that we hold it a self-evident truth that all men are created equal. Ladies and gentlemen, the foundational and quintessential premise of America is that we are all created children of God equal in his sight and that we are endowed by our creator with the unalienable rights of life, liberty, and the pursuit of happiness. America's founding premise is itself an intrinsic expression of religious conviction. Consequently, the Obama administration's flippant willingness to fundamentally abrogate America's priceless religious freedom in the name of leftist social engineering is of grave concern to me and should be to all of us. The most egregious examples from the administration include their concerted effort to force religious minorities, like the Little Sisters of the Poor, to purchase abortifacient drugs and contraceptives. With breathtaking arrogance, this administration also told the Supreme Court 2 years ago in the Tabor case that government should have a say in deciding who could be a pastor, priest, or rabbi--in short, who could preach and teach religion. This was unanimously rejected by the Supreme Court as untenable and extreme. This administration seems to casually ignore the historical fact that religious liberty involves much more than freedom of worship alone and that fundamental rights of free speech and the free exercise of religion do not stop at the exit door of your local house of worship, but indeed extend to every other area of life. The so-called anti-discrimination policies that make no exception for religious beliefs threaten religious liberty. For most religious groups, public service is an essential element of their religious beliefs. Religious groups in America establish hospitals, operate homeless shelters, provide counseling services, and run agencies for adoption and foster care for children who might otherwise have no one else in the world to help them. Those who refuse to respect the public component of religious liberty and fail to accommodate religion in our generally applicable laws are putting many innocent people, as well as the religious freedom that undergirds America, in grave danger. Oftentimes religious freedom is suppressed in the name of ``a strict wall of separation between church and state.'' Now, while that phrase did appear prominently in the Soviet constitution, it appears nowhere in the United States Constitution, and the profound historical misrepresentation of that phrase by the secular left leaves me without adequate expression. Some time ago a Marxist economist from China was coming to the end of a Fulbright fellowship in Boston. When asked if he had learned anything that was surprising or unexpected, without hesitation he said, ``Yeah. I had no idea how critical religion is to the functioning of democracy.'' Ladies and gentlemen, it bears careful reflection that many men and women have died in darkness so that Americans could walk in the light of religious freedom. They gave all they had because they knew that religious freedom is critical to the survival of all other freedoms. It is so very important for us now and always to resist this ubiquitous effort by the secular left to do away with religious freedom in America as they have successfully done in so many other parts of the world. In America, every individual has the right to religious freedom and First Amendment expression so long as they do not deny the constitutional rights of another. True tolerance does not mean that we have no differences. It means that we are obligated as members of the human family to be kind and respectful to each other in spite of those differences, religious or otherwise. I would like to again thank our witnesses for being here, and I look forward to hearing from them about some of the unique challenges now facing this cornerstone of freedom in the United States. And I would now yield to the Ranking Member, Mr. Cohen, for an opening statement. Mr. Cohen. Thank you, Mr. Chair. Religious freedom is indeed a fundamental pillar of American life. Whatever one's religious belief, our Constitution enshrines the notion that the government remain neutral with respect to religious belief, neither favoring one religion over others, nor favoring religious beliefs over nonbelief. Our constitutional statutes also require that the government not substantially burden the free exercise of religion absent a compelling interest and a less burdensome means of meeting that interest. In expounding upon the meaning of these constitutional provisions, Thomas Jefferson wrote in a letter to the Danbury Baptist Association in 1802, ``I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should, 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and state.'' Jefferson was a deist who strongly believed in each man and woman, at least White men and women, or at least White men, having certain rights, and inscribed at the Jefferson monument is a saying of his that says, ``I swear upon the altar of God eternal hostility over all forms of hostility over the mind of man.'' Indeed men should be able to practice and women practice religion, but not have any thoughts superimposed upon them. You know, when our country started, it's a great country, but we really didn't get started on the idea that all men are created equal because we had slavery until President Lincoln in the Emancipation Proclamation and then the 13th Amendment said no more. Up to then, if you were black, you weren't created equal, and if you were a woman, you really weren't either because you didn't have a right to vote really in this country till about the 1920's. Took a long way for our country to evolve, and we are doing the same thing with religious freedom. All of these things in the Constitution, they're wonderful, but they're evolving, and we learn as things change. Some religions might say, or people say, because of their religion, they have to have peyote on a regular basis, and you have to figure how we should deal with that. And some religions might even think that being gay is something that they should be discriminatory against and that that's an evil, but our society is evolving on people's sexual orientations, too. Religious freedom is very fundamental and it's protected in the First Amendment of the Bill of Rights, but Jefferson talked about constitutions not being sanctimonious documents, but like a child who grows and changes his clothes with times as it gets larger and grows and matures, that constitution should change as times change and people look upon it. So we can't just say the Founding Fathers said this, and then there were 10 commandments, and thou shalt honor thy God and mother and father and not commit adultery and not kill and all those things, just maybe a few others come along. It is also why I was the sponsor, all these things, I was the sponsor of Tennessee's Religious Freedom Restoration Act back in January 1998, so this is nothing knew to me, when I was a senator. Like the Federal RFRA, the Tennessee RFRA protects religious liberty by ensuring that any government action that substantially burdens the free exercise of religion is prohibited unless there is a compelling state interest. Tennessee's RFRA, like the Federal RFRA, seeks to strike a balance between the fundamental right to practice one's religion free from government interference and the ability of the government to perform its basic duties, including the protection of public health and safety and fighting discrimination. So if a religious groups says, we can't do certain things for our employees because of our religion, there has to be a compelling interest to show the difference. Or maybe something about gays. Any discussion of religious liberty must also include a discussion of the threats, both government and nongovernmental, to members of minority religions. As Reverend Barry Lynn, one of out witnesses, notes in his written testimony, a Muslim congregation in Murfreesboro, Tennessee, faced intimidation and threats of violence from the local community when it attempted to construct a new mosque. While the mosque ultimately was built, the legal fight over its construction ended only recently at a great cost to the congregation for a fight that it should never have had to fight. And we have things in New York like that, too, with a mosque and a community center not far from 9/11. Unfortunately, this is only one of many instances that reminds me the Bill of Rights' fundamental purpose is to protect the minority, the unpopular, and the nonmainstream from majority tyranny. When one's right to free exercise of religion ends and a majority tyranny begins will be the crux of our discussion today. Seven years ago this Committee heard from Monica Goodling, who at the time had just resigned as the Justice Department official, I think, dealing with personnel matters, concerning hiring there during the Bush administration. Ms. Goodling was a graduate of Regent University School of Law. According to its Web site, it seeks to provide legal training ``with the added benefit of a Christian perspective through which to view the law,'' something I don't really know what that perspective might be. What's different from a Christian perspective and a Judeo-Christian perspective or a conservative perspective or a liberal perspective or an American perspective? But there was evidence at the time Ms. Goodling and others screened job candidates for career positions at the Justice Department based on their religious and partisan affiliations. She denied it when asked, but it stands to reason religious belief could have played a definite role in her hiring policies. A religious litmus test for public office or for career public service positions has no place in a society that values religious liberty. More broadly, attempts to remake our Nation's longstanding political and legal culture so as to give already dominant religious groups more of a coercive power of government must be confronted, for if such attempts are successful the outcome would present a threat to a free society and ordered liberty and a government that can fundamentally provide a system, a network of systems that protects its citizens through health and welfare and other bases. I look forward to our discussion and appreciate the Constitution. Mr. Franks. And I thank the gentleman. And I would now yield to the Ranking Member of the Committee, Mr. Conyers from Michigan, for his opening statement. Mr. Conyers. Thank you, Chairman Franks. Members of the Committee and our distinguished witnesses, religious freedom was one of the core principles upon which our Nation was founded. The First Amendment protects this fundamental freedom through two prohibitions: The Establishment Clause prohibits the Federal Government from issuing a law respecting the establishment of religion and the Free Exercise Clause prohibits the government from affecting the free exercise thereof. And so when discussing the government's compliance with these prohibitions, we should keep in mind several considerations. To begin with, the real threat to religious liberty is continuing religious bias or intolerance against the members of minority religions. For example, the American Muslim communities across the United States since September 11, 2001, have been targets of often hostile communities and sometimes even government actions. There have been numerous well-founded complaints of religious profiling by Federal, State, and local law enforcement agencies. In fact, bills have been introduced in Congress as well as in various State legislatures targeting Islam. It was recently reported that the Transportation Security Agency is using a behavioral detection program that appears to focus on the race, ethnicity, and religion of passengers. As many of you know, I represent Detroit, the home of one of America's largest Muslim communities, so I'm particularly disheartened by the overt challenges these communities face. Targeting American Muslims for scrutiny based on their religion violates the core principles of religious freedom and equal protection under the law. All Americans, regardless of their religious beliefs, should know that their government will lead the effort in fostering an open climate of understanding and cooperation. Yet, in the name of religious freedom, we cannot undermine the government's fundamental role with respect to protecting public health and ensuring equal treatment under the law. Currently pending before the United States Supreme Court are two cases, the Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, that will hopefully clarify this issue. The issue in those cases is whether the government can require for-profit corporations that provide group health plans for their employees to provide female employees with plans that cover birth control and other contraceptive services as required by the Affordable Care Act, notwithstanding the religious objections of the corporation's owners to contraceptives. Along with 90 of my colleagues in the House, I filed an amicus brief in these cases disputing the claim that corporate plaintiffs are persons for the purposes of the Free Exercise Clause. Corporations are not people. And even if they are capable of having religious beliefs, these corporations aren't entitled to relief under the Religious Freedom Restoration Act. Moreover, the Affordable Care Act's mandate, we argue, serves two compelling governmental interests--namely, the protection of public health and welfare and the promotion of gender equality--that outweigh whatever attenuated burden the mandate might place on the corporation's free exercise of rights. And finally, as even some of the majority witnesses acknowledge, the Obama administration's enforcement efforts with regard to protecting religious freedom in the workplace and elsewhere are to be commended. On various fronts, the administration, to me, has striven to take a balanced approach to this issue. For example, it added a religious employer exemption to the HHS contraceptive mandate in response to objections from religious employers. These efforts ensure that America continues to foster a safe and welcoming environment for all religious practices and communities without sacrificing our other freedoms and needs. And I thank the Chair for allowing me to conclude this statement. I yield back. Mr. Franks. And I thank the gentleman. And I now yield to the Chairman of the Judiciary Committee, Mr. Goodlatte from Virginia. Mr. Goodlatte. Thank you, Mr. Chairman. The religion clauses of the First Amendment of the United States Constitution state, ``Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof.'' Since the birth of our Nation, the central question regarding the religious liberty has been the degree to which religion and government can coexist. Indeed, the Founding Fathers feared the effect of government on the free exercise of religion. In a letter dated June 12, 1812, to Benjamin Rush, John Adams stated that ``nothing is more dreaded than the national government meddling with religion.'' This dread has resurfaced amidst the current administration's policies that ignore and are often hostile to the religious protections afforded by our Constitution. Many regulations fail to accommodate Americans' religious beliefs. Others seek to single out religion for adverse treatment. From the HHS mandate to the infringement on the freedom of churches and other religious groups to choose their ministers, Americans' religious liberties seem to be under constant attack today. In an effort to reaffirm the protections provided by the First Amendment, I supported the bipartisan effort to pass the Religious Freedom Restoration Act. The Federal Government must provide religious accommodation in our laws, and any laws passed that infringe upon religious freedom must be subject to the strictest scrutiny in our courts. My hope today is that this hearing will explore whether our Federal Government is complying with the constitutional and statutory protections afforded to all faiths. And while religious liberty remains threatened, I am nevertheless encouraged by recent Supreme Court decisions that safeguard it. Last month, for example, the Supreme Court upheld legislative prayer in the May 5, 2014 decision Town of Greece v. Galloway. The court held that a municipality did not violate the establishment clause when it opened its meetings with prayer consistent with the traditions of the United States. I am glad that the long-held tradition of prayer remains ever strong in our State and local governments, as well as in Congress. In 2012, the Justices of the Supreme Court unanimously rejected the Federal Government's argument in Hosanna-Tabor. Astonishingly, the administration's lawyers argued in that case that the First Amendment had little application to the employment relationship between a church and its ministers. The court stated that requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere employment decision. The court described the administration lawyer's position as extreme. I hope that the Supreme Court will continue to protect religious liberty in the future, including later this month when it issues its opinion in the HHS mandate case. I want to thank all of our witnesses for coming today to testify, and I extend a special welcome to a constituent of mine, Mat Staver, who is coming from Lynchburg, Virginia, today to testify. As a founding member and chairman of Liberty Counsel, Mat is a passionate defender of the Constitution and religious liberty. He is also working to educate future legal minds as dean of Liberty University's law school. Welcome, Mat. I look forward to your testimony today and to that of all of our witnesses. And, Mr. Chairman, thank you, and I yield back my time. Mr. Franks. And I thank the gentleman. And without objections, other Members' opening statements will be made part of the record. I will now introduce our witnesses. Our first witness is Mathew Staver, dean of Liberty University School of Law. In 1989, Dean Staver became the founder, president, and general counsel of Liberty Counsel and currently serves as chairman of the board. Dean Staver has authored more than 10 books, written several hundred articles on religious freedom and constitutional law, and has published 10 law review and journal articles. In addition to writing numerous appellate briefs, he has argued twice before the United States Supreme Court. And welcome, Mr. Staver. Our second witness is Kim Colby, senior counsel for the Christian Legal Society's Center for Law and Religious Freedom, where she worked for over 30 years to protect students' rights to meet for religious speech on college campuses. Ms. Colby has represented religious groups in several appellate cases, including two cases heard by the United States Supreme Court. She has filed numerous amicus briefs in State and Federal courts. And we welcome you, Ms. Colby. Our third witness is Reverend Barry Lynn, executive director of Americans United for Separation of Church and State. In addition to his work as an activist and lawyer in the civil liberties field, Reverend Lynn is an ordained minister in the United Church of Christ. He appears frequently on television and radio broadcasts to discuss religious liberty issues. He has had essays published in outlets such as USA Today and The Wall Street Journal. In 2006, he authored the book ``Piety & Politics: The Right-Wing Assault on Religious Freedom.'' And we welcome you, sir. Our fourth witness is Greg Baylor, senior counsel with Alliance Defending Freedom. Mr. Baylor litigates cases to protect the rights of religious students, faculty, and staff at public colleges and universities across the Nation. Prior to joining Alliance Defending Freedom in 2009, he served as director with the Christian Legal Society Center for Law and Religious Freedom, where he defended religious liberty since 1994. And we welcome you, sir. Now, each of the witnesses' written statements will be entered into the record in its entirety, and I would ask that each witness summarize his or her testimony in 5 minutes or less. And to help you stay within that time, there is a timing light in front of you. The light will switch from green to yellow indicating that you have 1 minute to conclude your testimony. When the light turns red, it indicates that the witness' 5 minutes have expired. And before I recognize the witnesses, it is the tradition of the Subcommittee that they be sworn. So if you will please stand. [Witnesses sworn.] Mr. Franks. Please be seated. Let the record reflect that the witnesses answered in the affirmative. And I would now recognize our first witness, Mr. Staver. Please, sir, turn on your microphone before beginning. TESTIMONY OF MATHEW STAVER, DEAN AND PROFESSOR OF LAW, LIBERTY UNIVERSITY SCHOOL OF LAW, FOUNDER AND CHAIRMAN, LIBERTY COUNSEL, AND CHAIRMAN, LIBERTY COUNSEL ACTION Mr. Staver. Thank you, Congressman Franks, Members of the Committee, and it's a pleasure to be here with my own Member of Congress, Congressman Goodlatte. Thank you for inviting me and for this important topic that we're going to be discussing. The threat to religious freedom has reached unprecedented levels. It has reached a point where religious freedom is now being coerced to go against the core values of those who hold these sincerely held religious beliefs. My testimony will focus on two primary issues where the threat has reached a critical point. These involve conflicts between religious freedom and, number one, the sanctity of human life and, number two, human sexuality and marriage. The Obamacare law that was passed in 2010 has a direct collision with religious freedom of unprecedented levels, both with regards to the rights of business owners in the HHS mandate that was promulgated under it and with regards to the individual mandate as well. Religious freedom with regards to licensed mental health counselors, minors, and their parents are also under unprecedented assault. In two states, California and New Jersey, laws have been passed that prohibit counselors from offering and minor clients and the parents from receiving any counsel whatsoever that would seek to reduce or eliminate same-sex sexual attractions, behavior, or identity. The freedom of religious business owners with regards to their rights and operations are also under a threat with regards to the issues of marriage and human sexuality. First with regards to Obamacare. Liberty Counsel filed the first private lawsuit against Obamacare on behalf of Liberty University and some private individuals on the same day that it was signed into law by President Obama. In this particular lawsuit, we claim a violation of religious freedom under the First Amendment and the Religious Freedom Restoration Act. There are two different violation under that. First of all, there is the individual mandate that doesn't get a lot of press, but under section 1303, individuals who are either in an exchange or in any insurance that offer any kind of elective abortion are forced to provide a separate payment in addition to their premium that goes into a segregated fund, the purpose of which is only to fund abortion. This breaks precedent with longstanding congressional Federal policy with regards to Federal funding or any other kind of funding of abortion. The other is with regards to the employer mandate. Under the minimum essential coverage, the HHS mandate decided that, as part of that, employers were to be providing not only contraception, but abortifacients and abortion-inducing drugs and devices. With regards to Liberty University, Hobby Lobby, Conestoga Woods, or Little Sisters of the Poor, whoever it might be, failure to abide by that violation of their belief that God is the creator and that life begins at conception and therefore they are forced to take innocent human life would result in a penalty of $2,500 per employee per year. But in addition to that, under the Department of Labor, those fines go up to $15,000 per employee per day. It is designed to literally crush an employer who disagrees with that abortion drug and device mandate. With regards to the other challenges involving human sexuality and marriage, in California, the first State to pass a law of unprecedented magnitude, even said so by the California counseling associations, is that no counselor or client may receive or offer any counsel whatsoever, under any circumstances, to reduce or eliminate unwanted same-sex attractions, behavior, or identity. That goes against the individual client's right of self-autonomy. No other area of counseling has been affected by this. After California filed that particular bill and it was passed, New Jersey also passed a similar law. Both of those are currently in litigation. But this cuts to the very core of what a counselor is able to provide a client seeking information and what a client is able to receive. It's unprecedented because there's no other area of counseling that falls anywhere in that kind of restrictive mandate. In addition to the issues of the counseling associations and the individuals who are affected by it, there are also situations involving marriage and the human sexuality laws. In New Mexico we know of the case--obviously, that has been recently denied cert by the United States Supreme Court-- involving the wedding photographer. That particular individual is not discriminating against anyone because of their sexual orientation. In fact, clearly said so. What she does say is that she does not want to participate in an event. She doesn't discriminate against people because they're caucasian, but if they put on a robe and start involving a KKK rally, she doesn't want to participate in photographing that event because it collides with her religious beliefs. But in this particular case, she is forced to either give up her wedding business or collide with her religious beliefs. That and many other instances can be listed ad nauseam with regards to the unprecedented clashes that we're facing today with respect to religious freedom. Thank your for addressing this issue. Religious freedom is our first freedom. It's a freedom, I think, that is critically under assault. [The prepared statement of Mr. Staver follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Mr. Staver. And I would now recognize our second witness, Ms. Colby. Please turn on your microphone. TESTIMONY OF KIMBERLEE WOOD COLBY, DIRECTOR, CENTER FOR LAW AND RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY Ms. Colby. Chairman Franks, Ranking Member Cohen, and Members of the Subcommittee, thank you for the opportunity to participate in this important hearing on the state of American religious liberty. The Christian Legal Society has long believed that a free society prospers only when the First Amendment rights of all Americans are protected regardless of the current popularity of their speech or religious beliefs. Therefore, CLS supported passage of the Religious Freedom Restoration Act to protect the religious liberty of all Americans. Congress' passage of the Religious Freedom Restoration Act was a singular achievement. Senator Edward Kennedy and Senator Orrin Hatch led the bipartisan effort to pass RFRA in the Senate 97-3. The House passed RFRA by unanimous voice vote, and President Clinton signed RFRA into law. For two decades, RFRA has stood as the preeminent Federal safeguard of all Americans' religious liberty, ensuring a level playing field for Americans of all faiths. Yet, recently RFRA has been targeted by some who would deny robust protection to religious liberty. This hearing is timely because in a few weeks Congress may face calls to weaken RFRA after the Supreme Court decides the HHS mandate cases. But for several reasons such a threat to religious liberty--weakening RFRA--should be rejected. First, RFRA creates a level playing field for all Americans by putting minority faiths on an equal footing with any majority faith. Without RFRA, a minority faith would need to seek a statutory exemption every time Congress considered a law that might unintentionally infringe on religious practices. Second, RFRA gives citizens needed leverage in dealing with government officials. By requiring government officials to justify their unwillingness to accommodate citizens' religious exercise, RFRA enhances government's accountability. Third, RFRA ensures religious diversity in America and reduces conflict along religious lines. Such conflict is unnecessary when everyone's religious liberty is guaranteed. Fourth, RFRA does not predetermine the outcome of any case. Instead, RFRA implements a sensible balancing test, a test approved unanimously by the Supreme Court 8 years ago, and the government continues to win its fair share of RFRA cases. Fifth, RFRA reinforces America's commitment to limited government and pluralism. RFRA reminds us that America's government is a limited government that defers to its citizens' religious liberty. In RFRA, Congress recommitted the Nation to the foundational principle that American citizens have the God- given right to live peaceably and undisturbed according to their religious beliefs. Now, let me turn briefly to a second threat to religious liberty, the ongoing effort to exclude religious voices from the public square. One example of this threat is the exclusion of religious student groups from college campuses because they require their leaders to share the groups' religious beliefs. Obviously, it is basic religious liberty, not discrimination, for a religious group to require its leaders to share its religious beliefs. But at one university, administrators told a Christian student group that it could remain a recognized student organization only if it deleted five words from its constitution: personal commitment to Jesus Christ. The students left rather than recant. In total, 14 religious groups left that campus rather than forfeit their religious liberty. The freedom of religion must not become the freedom to recant. As Professor Douglas Laycock recently warned, and I'm quoting, ``For the first time in nearly 300 years important forces in American society are questioning the free exercise of religion in principle, suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized,'' end quote. Religious liberty is America's most distinctive contribution to humankind, but religious liberty is fragile, too easily taken for granted, and too often neglected. Religious liberty is a great gift, a gift we are in grave danger of squandering. Thank you. [The prepared statement of Ms. Colby follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, Ms. Colby. And I now recognize Reverend Lynn. TESTIMONY OF REV. BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Rev. Lynn. Thank you very much. This panel certainly represents the two major world views about the state of religious freedom in America. Mine is this. Those in the majority faith, Christians like myself, are not the ones who suffer significant threats to their religious liberty. They have no serious impediments in believing, worshipping, obtaining taxpayer-supported grants, generally doing whatever they deem appropriate. This doesn't mean that there are no occasional errors made by government officials that need correction, but a few anecdotes do not make a war on Christianity. There are, sadly, many efforts to regulate and relegate religious minorities and nontheists to a second-class status in parts of the country. They range from efforts to block construction of mosques to impeding high school students from forming nontheistic clubs where existing religious clubs are being permitted as required by Federal law. Ironically, the single greatest threat to religious freedom comes from a radical redefinition of the idea itself. Religious freedom does not mean what many of my copanelists assert, it does not mean that for-profit companies that sell wind chimes or wood cabinets can trump the moral and medical decisions of women employees who would choose contraceptive services that their corporate owners would deny them in insurance coverage. It does not mean that a university must provide funds to school clubs that will not admit gay and lesbian students. It does not mean that religious groups seeking government grants and contracts should be allowed to discriminate on the basis of religion in hiring people for those State or federally funded positions. There are legitimate instances when religious accommodations and exceptions need to be made; however, the government need not accede to every religious demand for an exception to a law that applies to everyone else. Such reaction would court anarchy. At first, the government's entitled to ask how substantial a burden is being placed on the religious person. Regulations issued under the Affordable Care Act, for example, exempt many religiously affiliated institutions from covering employee or student contraceptive services in their insurance plans. If a college or a hospital objects, it signs a 635-word document so indicating and mails it to the government, making the government then responsible for locating third-party birth control coverage at no cost. I found it absurd when Notre Dame University now claims it has a religious right to refuse even to opt out by signing this form and dropping it in a mailbox. Such a trivial action cannot seriously be construed under law as any kind of burden on religious practice. Until Judge Richard Posner rejected its claim, however, the three women graduate students Americans United represents at Notre Dame could neither get coverage through their university nor from a third-party insurer under the rules, and that is not a speculative or attenuated burden on them. Even if the burden on religion is not ephemeral, governments have a responsibility to assess the damage to third parties caused by any special exception. If a recently proposed Kansas statute had been enacted, one of its clear consequences would have been to allow hotel operators who object to marriage equality, even on idiosyncratic religious grounds, to refuse to rent to a gay couple, not only depriving those persons of the room they desire, but offering a direct and offensive insult to their very dignity as human beings. When a religiously affiliated entity cites Christian scripture to justify unequal payments to male and female employees there is a clear, easily measured downside for those women. Some accommodations, of course, do not impinge on the rights of others. Three of us here today have filed friend of the court briefs in a Supreme Court case where a Muslim prison inmate was unfairly told he could not grow a short beard consistent with his religious obligations. Facial hair on person A does not affect person B. Allowing a same-gender couple to marry cannot conceivably offend the religious liberty of a person across town who doesn't even know that couple exists. I think the Framers of the Constitution would be appalled at the radical revisionism of the First Amendment being advocated by some. More importantly, I think the America of the future will look askance at efforts to elevate majority faiths or subject not so traditional believers to the status of an orphan class to be denied genuinely equal treatment in this diverse country. In that 5-4 decision in the Supreme Court's recent Town of Greece case, which came dangerously close to embracing the concept of majority rule in legislative prayer practices, I noted on Fox News' ``The Kelly File'' five members of the court seem to be running counter to the entire culture of the United States where we try to be more sensitive to the diversity of religion, the diversity of belief. Where real assaults and religious freedom occur, they should be condemned. Where a claimed defense is really a special privilege operating to the detriment of others, it should simply be rejected. Thank you, Mr. Chairman. [The prepared statement of Rev. Lynn follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. Thank you, sir. And I would now recognize our fourth and final witness, Mr. Baylor. TESTIMONY OF GREGORY S. BAYLOR, SENIOR COUNSEL, ALLIANCE DEFENDING FREEDOM Mr. Baylor. Thank you, Mr. Franks. My name is Gregory Baylor, and I serve as senior counsel with Alliance Defending Freedom, a non profit legal organization that advocates for religious liberty, the sanctity of life, and marriage and the family through strategy, training, funding, and litigation. I appreciate the opportunity to testify today regarding the state of religious liberty in the United States. Americans of all faiths have reason to be concerned about the current administration's religious liberty record. All too often it has taken unnecessarily extreme positions designed to dramatically decrease religious freedom. I'll mention three examples. First, the promulgation and legal defense of the HHS contraceptive mandate. Second, the unsuccessful attempt to eliminate the Religion Clauses ministerial exception. And third, the NLRB's intrusion into the internal affairs of our Nation's religious colleges and universities. Regarding the HHS mandate, the administration didn't have to require employers to pay for contraception and abortifacients. Nothing in the Affordable Care Act required it to do so. But it went ahead anyway, despite well-known religious concerns that many Americans have about contraception and abortion. Second, the administration adopted a remarkably narrow religious exemption from the mandate. HHS could have exempted all conscientious objectors. It could have even exempted all religious employers. But again, HHS made a choice, a choice that damaged religious liberty. It adopted a religious exemption so narrow that even Jesus and Mother Teresa would not qualify. The exemption excluded and continues to exclude to this day the vast majority of religious educational institutions, social service agencies, and other nonchurch religious organizations, many of which have just as strong views on these issues as churches do. Third, they went ahead with its sham accommodation of nonexempt religious employers from the mandate, even though the vast majority of objecting organizations informed the administration during the comment period that the so-called accommodation did not satisfy their moral concerns. Now, the administration's conduct in the defense of the civil rights lawsuits challenging the mandate has been no better. First, it has argued that businesses and their family owners cannot exercise religion in the marketplace. Second, it has shown a disturbing willingness to second guess and even discredit the religiously based moral assessments of individuals and organizations that cannot, in good conscience, comply with the mandate. Third, in an effort to distort and dilute the Religious Freedom Restoration Act, the administration has essentially argued that religious claimants may not prevail whenever the interests of third parties are somehow implicated. Fourth, the government has more recently remarkably argued that the imposition of massive financial penalties does not count as a substantial burden under the Religious Freedom Restoration Act. The administration also took an extreme and potentially damaging position in the 2012 Hosanna-Tabor case, which has been mentioned previously. It argued that religious entities, churches, have no right under the Religion Clauses to choose their own ministers without governmental interference. Now, the lower Federal courts have for decades acknowledged that both the Free Exercise and Establishment Clauses of the First Amendment keep the government out of a church's relationship with its ministers. The EEOC itself had accepted the existence of this ministerial exception in its compliance manual and in previous lawsuits. Now, to be sure, reasonable minds can disagree about who counts as a minister for purposes of the doctrine, and that's what the Hosanna-Tabor case was about until the Obama administration filed its brief at the Supreme Court. Instead of continuing to argue more conventionally that the plaintiff in question was not a minister, it instead attacked the very existence of the ministerial exception. Demonstrating the extreme nature of this position, a unanimous Supreme Court reaffirmed the doctrine and protected the church from unwanted governmental intrusion. Finally, the National Labor Relations Board continues its quest to assert jurisdiction over religious institutions of higher education. It does so despite the clear teachings of the Supreme Court in the 1979 case NLRB v. Catholic Bishop. It has arrogated to itself the power to examine and assess how religious a school is, denying constitutional protection to those schools that are not religious enough for its taste. The board has ignored multiple D.C. Circuit opinions instructing it to respect religious liberty in administering the National Labor Relations Act. In conclusion, all Americans who love our first freedom ought to be alarmed at the administration's willingness to undermine that fundamental right. Thank you again for the opportunity to testify, and I look forward to addressing any questions that Committee Members might have. [The prepared statement of Mr. Baylor follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Franks. I would like to thank all of the witnesses for their testimony. And we will now proceed under the 5-minute rule with questions. I will begin by recognizing myself for 5 minutes. And, Dean Staver, I'll begin with you, sir. Regarding the HHS mandate under Obamacare, the main focus here has been on the employer mandate, but you also referenced a similar threat to religious freedom under the individual mandate, and I wonder if you could further address that and clarify that for us. Mr. Staver. Yes, Mr. Chairman. It doesn't get a lot of attention in the media. The employer mandate is the primary one that's being discussed. But section 1303 actually sets up the individual mandate with regards to abortion and the abortion funding. It has become known as the so-called Nelson compromise because it arose out of Senator Ben Nelson's attempt to find language that would make it clear that there would be no government Federal funding with regards to abortion. Section 1303 specifically says that in plans where elective abortion are offered anywhere within that network, whether it's in your own or if you're finding it in an exchange, you have to pay a separate fee, in addition to your premium. That fee is paid monthly, and it goes into a segregated fund, and that fund is used only for one purpose, and that's to fund elective abortions for anyone within that coverage. No matter your age, your sex, or your religious objection to the contrary, you still have to pay for that particular coverage. And the even more egregious thing with it is you can't find out if your plan covers abortion because of the so-called secrecy clause that was put into the Obamacare law so that you wouldn't be able to find out whether your plan covered abortion. Any other area where you want to find insurance, whether it's car insurance or health insurance, before you decide to take a particular plan and pay the premium, you have the right to be able to get a list of what that plan covers. But here you're not allowed to do so. In fact, under the Obamacare law, insurance companies are prohibited from providing any information with regards to that coverage, and therefore it is essentially Russian roulette. You don't know until you actually pay the premium. Once you pay the premium, you're locked in for a year. After you pay the premium, you get to know what's in that plan, and if that plan covers abortion, you're forced, in addition to your premiums, to pay an additional monthly fee, and that fee goes directly to fund abortion. That was Senator Nelson's way to get around having Federal funds do that, but now the Federal law provides and coerces individuals to do that very thing. So that breaks with consistent Federal policy under the Hyde Amendment and others about not having coerced Federal funds from taxpayers to pay for abortion. This is a direct assault. Regardless of what the Supreme Court does this month with regards to the Hobby Lobby case and the Conestoga Wood case relating to the employer mandate, this is still in existence and it still affects every single person around the country. So this is a direct assault. It needs to be addressed by Congress. Something needs to be done to exempt those with sincerely held religious beliefs from that provision because never before have we been able to trace a dollar from your purse or pocketbook directly from you to one source to fund abortion. It's not a general funding of medical procedures, one of which might be a knee replacement and another might be abortion. This fund goes directly from the person and it has its only objective to fund the taking of innocent human life. Mr. Franks. Thank you, sir. Ms. Colby, I know that much has already been mentioned today about the Tabor case, but I wonder, if you would, just for those of us that are not as erudite as you are, could you break that down for us a little bit. Tell us what the administration, the Obama administration actually argued, and how, if they had been successful, that would have affected churches and other religious institutions. Ms. Colby. Certainly. I think, as Greg already mentioned, the Obama administration took an extreme position in the Supreme Court that was unnecessary. I was actually part of a group of about 15 people from the religious liberty community, from Jewish groups, Catholic groups, Christian groups, Protestant groups, who met with the Solicitor General's office beforehand to try to say we understand you have to defend the EEOC, but please do it with the least amount of damage possible to religious liberty. And so we were shocked, we were stunned, all of us, when we saw what the administration ended up filing. It was a brief that said that the Free Exercise Clause and the Establishment Clauses have nothing to do with the church's right to decide who its minister should be, that there was no protection under either of those clauses for a church or any other religious congregation to decide who its leaders would be. Mr. Franks. So a Jewish synagogue would not have the right to hire a Jewish rabbi. Ms. Colby. No. Well, they could hire him---- Mr. Franks. Couldn't discriminate against Baptists or others. Ms. Colby [continuing]. But if there were a lawsuit, the government could interfere, right. Mr. Franks. I understand. All right. Well, I wish I had more time, but I don't, so I will now yield to the Ranking Member for 5 minutes for questions. Mr. Cohen. Thank you, Mr. Chair. Ms. Colby, I would like to ask you a question. I saw in your biography that you were particularly interested in slavery history there. When you studied slavery, did you see a whole bunch of people that supported slavery on the theory that it was a Christian thing to do, that a lot of people back at that time used the Bible, unfortunately, as a basis to defend slavery? Ms. Colby. Actually, I've heard that argument made a lot, and it's something that I am trying to look into on my own. But I've been interested in reading--I believe her name is Annette Gordon-Reed, She's a professor at Harvard Law School, and she wrote about the Sally Hemmings-Jefferson relationship. And just in passing, I think it's called ``The Hemmings of Monticello.'' She just in passing says around page 98 or something, that one would not have expected Jefferson to have emancipated his slaves because he was not a Trinitarian Christian, he was not a believing Christian, he was a deist. And she just says in passing that the only owners that were doing that were essentially evangelical Christians. Now, I certainly am not saying that all evangelical Christians---- Mr. Cohen. You're not saying Robert E. Lee wasn't a Christian, are you? You're not suggesting that Stonewall Jackson wasn't a Christian, are you? Ms. Colby. I am not suggesting that, but what I am suggesting---- Mr. Cohen. They were fine Christian men, and they had their slaves. Ms. Colby. What I am suggesting is that the whole abolition movement originated in first the Quakers and then the evangelical Christians. Mr. Cohen. But there were lots of people who defended slavery on the basis that that was--just like they defended the miscegenation laws. Do you believe that people of different-- African Americans and caucasians should be able to intermarry? Ms. Colby. Of course. Mr. Cohen. Okay, good. Dean Staver, how about you, do you believe in that? Mr. Staver. Yes. Mr. Cohen. You do. So all those ministers that said that that was against Christianity and for years that was the basis of the defense before Loving v. Virginia, they used the Bible, unfortunately, and besmirched it. Mr. Staver. Well, some may try to use the Bible for that, but if you look at the abolition movement, it was really a movement that rose out of Christian beliefs and Judeo-Christian values, not only here in the United States, but also William Wilberforce. It was something that was grounded in Judeo- Christian values Mr. Cohen. Let me ask you this. There are certain anti-gay laws that they have in Russia. You, I believe, have advocated for something similar to that, have you not? Do you support the Russian anti-gay laws? Mr. Staver. The Russian anti-gay laws? Mr. Cohen. The laws in Russia that make it illegal to be gay and to have certain activities restricted for people who are gay. Mr. Staver. What I am concerned about is having people of Christian, Judeo-Christian beliefs be forced to participate in a ceremony or an event that celebrates something that is contrary to their religious belief. Mr. Cohen. Okay. So you are not in favor of the anti-gay Russian laws. What I read was wrong. Mr. Staver. I don't know what you read. Mr. Cohen. Fine. Mr. Staver. I haven't spoken on the Russian law anywhere. Mr. Cohen. Okay. Thank you. I am happy to see that. You wrote a book called ``Take America Back,'' or an article. Mr. Staver. Yes. Mr. Cohen. Is it a book or an article? Mr. Staver. It's a book. Mr. Cohen. What are we taking America back from? And who is we? Mr. Staver. The point of it was to go back to a constitutional roots of the Constitution and the rights that are guaranteed in our Constitution, that the Founders guaranteed the right to freedom of speech, freedom of free exercise of religion, those kinds of rights that are declared not only in the Constitution, but that are set forth in the Declaration of Independence, that we have certainly unalienable rights that come from our creator, among which are life, liberty, and the pursuit of happiness. Mr. Cohen. Right. And do you believe that the Interstate Commerce Clause was sufficient to allow for the Civil Rights Act to be constitutional? Mr. Staver. I have never argued to the contrary, so I don't know if you've read anything to that effect. I've never argued anything to the contrary. Mr. Cohen. So you support the constitutionality of the Civil Rights Act? Mr. Staver. I am certainly an advocate of civil rights. Mr. Cohen. Do you support the constitutionality of the united Civil Rights Act of 1964? Mr. Staver. Yes. Mr. Cohen. Good. Good, good, good, good. You referred to Obamacare. Just for the record, it's the Affordable Care Act and Patient Protection Act. That's the real name of it. We're talking about contraception. The Founding Fathers, what was contraception when the Founding Fathers were around? Do you think they envisioned pills and surgical procedures, or would they have some other form of contraception? Mr. Staver. I don't think they envisioned the kind of contraception or abortifacients we have today. However, abortion was something that was known, and it's even in the Hippocratic Oath, long through the centuries that that was an issue. Mr. Cohen. But birth control like we have today wasn't known then, right? Mr. Staver. No Mr. Cohen. So we have to kind of flow with the times and learn? Mr. Staver. Well, we have to also understand that there are certain fundamental values. Life is a critical value. Without the right to life, you have no other rights. Rights to freedom of speech or freedom of religion is meaningless to a corpse. Mr. Cohen. Do you believe any abortion, even in the first couple or 3 weeks of conception, is constitutional or legal? Mr. Staver. I believe that life comes from our creator, and that life biologically begins at the moment of conception, and the taking of innocent human life is tantamount to murder. Mr. Franks. The gentleman's time has expired Mr. Cohen. Thank you, sir. I yield back the balance of the time that I don't have. Mr. Franks. And I would now recognize the gentleman from Texas, Mr. Gohmert, for 5 minutes. Mr. Gohmert. Thank you, Mr. Chairman. I know there was a lot said in the opening statements each made. For example, my friend from Tennessee was quoting from Thomas Jefferson. I think it is good to also--and, actually, I know, Reverend Lynn, you had said, ``I think the Founders would be appalled,'' were your words. I think, personally, for me, the Founders would be appalled at the things that have appalled you, rather amazingly. The quote about Jefferson, from Jefferson, he also in the Jefferson Memorial, he said, ``God, who gave us life, gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed, I tremble for my country when I reflect that God is just, that His justice cannot sleep forever.'' And I know, it was even mentioned, that--of Jefferson being a deist. You know, we know that he cut out miracles from his version of the Bible, but my understanding of a deist is that a deist does not believe that whatever God or deity, whatever it was that created things ever interferes with the natural course of things. And yet here you have Jefferson being very concerned that God's justice would not sleep forever. I also note, this was a gift from my aunt from my uncle's-- what my uncle was given going into World War II. And here it says ``the White House,'' ``Washington,'' ``As Commander in Chief, I take pleasure in commending the reading of the Bible to all who serve in the Armed Forces of the United States. Throughout the centuries, men of many faiths and diverse origins have found in the Sacred Book words of wisdom, counsel, and inspiration. It is a fountain of strength and now, as always, an aid in attaining the highest aspirations of the human soul.'' Signed, ``Franklin D. Roosevelt.'' Reverend Lynn, are you offended by that, that the President, with the stamp of the White House, would allow that to be in Bibles that were given out to soldiers? Rev. Lynn. I am not offended by that, but one of the reasons I am not offended by it is because I suspect I shared a lot of the particular religious beliefs of Franklin Roosevelt. A few years ago, I was honored to receive from the Franklin and Eleanor Roosevelt Institute a medal of freedom--a medal of freedom for the freedom to worship. And I think that---- Mr. Gohmert. That wasn't awarded by Roosevelt himself. Rev. Lynn. No, it was not. By the---- Mr. Gohmert. Yeah. And you are familiar with the prayer that he prayed on D Day---- Rev. Lynn. I am very familiar with the prayer. Mr. Gohmert [continuing]. Right? You are familiar with that prayer he prayed on D Day, correct? Rev. Lynn. I am familiar with the prayer---- Mr. Gohmert. Where he asked that God help against these unholy forces. But you mention, you know, at numerous times you are a Christian. And, of course, that, like the term ``deist,'' can have different meanings to different people. And I think about the episode of ``Seinfeld'' where Elaine finds out her boyfriend is a Christian and he has never mentioned it to her and she is offended. ``So you are a Christian?'', she asks basically. ``Don't you believe if you are not a Christian you go to hell?'' ``Well, yeah.'' ``Then why haven't you said anything to me if you care about me?'' I am curious, in your Christian beliefs, do you believe in sharing the good news that will keep people from going to hell, consistent with the Christian beliefs? Rev. Lynn. Yeah, I wouldn't agree with your construction of what hell is like or why one gets there. But the broader question is, yes, I am happy to. When I speak to---- Mr. Gohmert. Okay. So you don't believe somebody would go to hell if they do not believe Jesus is the way, the truth, the life? Rev. Lynn. I personally do not believe people go to hell because they don't believe in a specific set of ideas in Christianity. I have never---- Mr. Gohmert. No, no, no, not a set of ideas. Either you believe as a Christian that Jesus is the way, the truth, the life, or you don't. And there is nothing wrong in our country with that. There is no crime, there is no shame. It should never be a law against those beliefs, because God gave us the chance to elect to either believe or disbelieve. And that is what we want to maintain, is people's chance to elect yes or no, the chance that we were given. So do you believe---- Rev. Lynn. Congressman, what I believe is not necessarily what I think ought to justify the creation of public policy for everybody, for the 2,000 different religions that exist in this country, the 25 million nonbelievers. I have never been offended; I have never been afraid to share my belief. When I spoke recently at an American Atheists conference, it was clear from the very beginning in the first sentence that I was a Christian minister. I was there to talk to them about the preservation of the Constitution. And, in fact, I said, you know, we can debate the issue of the existence of God for another 2,000 years; I want to preserve the Constitution and its effect on all people, believers and not-believers, in the next 5 years. That is what I talk about-- -- Mr. Gohmert. So the Christian belief, as you see it, is whatever you choose to think about Christ, whether or not you believe those words he said, that nobody, basically, goes to heaven except through me. Rev. Lynn. We could have a very interesting discussion sometime, probably not in a congressional hearing, about---- Mr. Gohmert. Well, I was just trying to figure out, when you said ``Christian''---- Rev. Lynn [continuing]. Scriptural passages. Mr. Gohmert. There is no judgmental--that is not my job. God judges people's heart, in my opinion. But just to try to figure out what we meant by ``Christian.'' So I appreciate your indulgence. Thank you. Mr. Franks. I thank the gentleman. And I now recognize Mr. Nadler for 5 minutes. Mr. Nadler. Thank you very much. Mr. Staver, you said it is an imposition--let me start out by saying I was one of the sponsors of the Religious Freedom Restoration Act. And, along with Charles Canady, a former Republican Member from Florida, I was the author of the Religious Land Use and Institutionalized Persons Act. But we always conceived of these as shields of religious freedom, not as swords with which to impose religious beliefs on other people. Let me ask you a few questions. You said it is wrong, an imposition on religious belief for government to insist that the wedding photographer not be able to say I won't go to the gay marriage; is that correct? Mr. Staver. Correct. Mr. Nadler. Would it be an equal limitation of his religious belief if he said I don't want to go to a wedding of black people, I want to discriminate against black people? Would the government saying you can't do that be a violation of his religious freedom? Mr. Staver. I think that is fundamentally different. Mr. Nadler. Why? Mr. Staver. She is not saying she doesn't want to photograph a wedding where there is people who are gay and lesbian. She is saying she doesn't want to photograph a celebration of same-sex unions. Mr. Nadler. And if her religious beliefs said I don't want to celebrate a celebration of black unions because I think black people shouldn't get married, that is my religion, I mean, is it an imposition on her religious freedom for government to say you can't do that? Mr. Staver. I think it is fundamentally different, and I don't think that is what the issue is in that case. And I don't---- Mr. Nadler. That is exactly what the issue is. Mr. Staver. No, they---- Mr. Nadler. She has a religious belief that she shouldn't participate or be forced to participate in a celebration which goes against her religious belief. And let's assume her religious belief is that she shouldn't photograph a Jewish wedding. Would that be discrimination that the civil rights law can proscribe or not? And if not, why not? Mr. Staver. I think it would be something that she wouldn't object to, first of all; secondly---- Mr. Nadler. Somebody with some religious belief might object. I am not saying your client or your friend or whoever she is. Let's assume that someone had such a religious belief, that it is a violation of her religious belief to be forced professionally, because she is a photographer, to photograph a Jewish wedding or a Muslim wedding or whatever, and the government says, that is discrimination, you can't do that. Is the government being improper by limiting her religious freedom in that case? Mr. Staver. Well, first of all, there is a legal question of whether it is a public accommodation, but assuming that it is---- Mr. Nadler. Assuming that it is. Mr. Staver.--I think that she would have an issue there, a violation potentially. But I think what---- Mr. Nadler. She would have a violation. Okay. Mr. Staver. But that issue is fundamentally different. She specifically stated in that case that she doesn't discriminate against---- Mr. Nadler. Excuse me, it is my time. I don't see any difference at all. You can try to see it. Now, if the owner of a public accommodation, a restaurant, said, I don't want--well, I am holding out myself in commerce-- my religious belief is I don't want black people or Jewish people or whoever, or gay people, in my restaurant, and certainly not a gay couple holding hands, and the Federal Government says that is discrimination, is that a violation of the freedom of religion? Mr. Staver. No. And I don't think that is what the issues are that we are---- Mr. Nadler. I don't see how it is distinguishable. Let me ask you a different question. The Affordable Care Act says you have to have certain basic services covered by the insurance policy. You object because it violates the religious beliefs of some people to have contraception covered. Let's assume that it covered blood transfusions. Some religious groups are opposed to blood transfusions. What is the difference? Mr. Staver. Well, I think if it was someone like a Jehovah's Witness or some other kind of religion, then that is a fundamentally different situation. Mr. Nadler. Why? Mr. Staver. Because that does conflict with their sincerely held---- Mr. Nadler. Oh, so you are saying it would be the same situation. In other words, we shouldn't be allowed to say that insurance companies have to cover blood transfusions because there are people, Jehovah's Witnesses or whoever, who---- Mr. Staver. No, no. I am referring to an individual who is being forced to have a blood transfusion. Mr. Nadler. No, no, no, we are not talking about being forced to have a blood transfusion, because we are not talking about someone being forced to have an abortion. The objection is to mandating that the insurance policy cover abortions for those who want them. The objection here would be requiring the insurance policy to cover blood transfusions for those who want them and who need them. What is the difference? Mr. Staver. I think there is a significant difference. Mr. Nadler. To wit? Mr. Staver. Because one is the taking of innocent human life. Mr. Nadler. Excuse me. That is a value judgment. And you may---- Mr. Staver. That is not a value judgment. That is a--that is so fundamental---- Mr. Nadler. Wait a minute. That is a religious conviction. Mr. Staver. That is so fundamental to your Christian belief that you cannot violate that. Mr. Nadler. Fine. To some Christian beliefs and not to others and not to some other beliefs. And I am not going debate that, nor am I debating the validity of someone objecting on a religious basis to blood transfusions or to a lot of other things. There are equally valid beliefs, from a government point of view. Any religious belief is equally valid from a government point of view, can't distinguish. Mr. Staver. But the taking---- Mr. Nadler. So my question is---- Mr. Staver [continuing]. Of innocent human life---- Mr. Nadler. The taking of innocent human life---- Mr. Staver [continuing]. Is fundamentally different. The destruction of another human being is fundamentally different. Mr. Nadler. All right. Let's assume we aren't talking about abortifacients, we are only talking about--or what are characterized abortifacients--contraception. That aside, is not the taking of innocent human life. Mr. Staver. Well, the FDA classifies Ella and Plan B as abortifacients. Mr. Nadler. Put that aside. Let's assume that you weren't talking about---- Mr. Franks. The gentleman's time has expired. Mr. Nadler. We are talking only about contraception. Would that be different from the blood transfusion case? Mr. Staver. I am sorry, I didn't---- Mr. Nadler. Would that be--if the requirement says the insurance company must cover contraception, not including what you would consider abortions, would that be different and of greater or lesser validity as an invasion of religious liberty than the requirement that the insurance policy cover blood transfusions, which other people object to on religious grounds also? Mr. Staver. It could be similar, but I think it is also fundamentally different, particularly for those of Roman---- Mr. Nadler. It does. Mr. Staver.--Catholic beliefs, because it deals with the creation or the destruction of innocent human life. Mr. Nadler. We are not talking about abortions. We are the talking---- Mr. Staver. I know---- Mr. Franks. The gentleman's time has expired. Mr. Staver. But we are talking about contraception, not the abortifacients. That is what we are talking about. Mr. Nadler. Right. Yes. Mr. Staver. For those of Roman Catholic belief, that deals with the very beginning of human life. The---- Mr. Nadler. And for those of other beliefs, transfusions are equally objectionable. What is the difference? Mr. Staver. I think it is fundamentally different when you are talking about the creation or destruction of innocent human life. Mr. Franks. The gentleman's time has expired. And we now recognize Mr. King for 5 minutes. Mr. King. Thank you, Mr. Chairman. And I thank the witnesses for your testimony. Sometimes I have a little trouble attaching all the dialogue if I can't take it back and anchor it to something that is the basis for our discussion here, and I think that would be the First Amendment. And I don't believe I heard anybody actually address the text of the First Amendment. So I would turn to Dean Staver and ask--I want to go to this wall-of-separation discussion. So could you explain that to me, how we got to that? Mr. Staver. The wall of separation? Mr. King. Yes. Mr. Staver. Well, the First Amendment clearly says that Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. So it is a protection of a barrier against government intrusion on religious freedom. That is what the essence of the First Amendment is. Thomas Jefferson's letter to the Danbury Baptists was a letter of congratulations by the Danbury Baptists, and he used the opportunity, as he often did, to write a letter to give certain kinds of statements. And in that statement, he was justifying, especially in the earlier drafts that are clearly available now for review and research, why he didn't, like his previous predecessors, Washington and Adams, engage in national days of prayer. And he indicated that the Federal Government was not allowed to establish a religion and, therefore, not allowed to require a national prayer, and so, therefore, as the Executive, he was not allowed to carry out what the Federal Government was not allowed to do. He never used the word ``separation of church and state'' before that letter. And if it was so important to him, he never used it again after the letter. He never used it at all. And, in fact, in another letter, he refers to the First Amendment with regards to religion and the 10th Amendment as saying essentially the same thing: The Federal Government should have the hands off of religion because that is a matter reserved for the States. Mr. King. But if Thomas Jefferson for a moment, maybe in a fit of anger or frustration, for a moment wrote a letter to the Danbury Baptists and for that moment he had changed his mind on his longstanding support for the First Amendment and then never revisited it again, is there any legal basis whatsoever for an opinion that came out so many years later? Mr. Staver. No. In fact, the Supreme Court that first really relied upon that said that Thomas Jefferson, as we know, basically was influential in the drafting and adoption of the First Amendment. And, of course, Justice Rehnquist was the first Justice who later, in a dissent or a concurring opinion later, literally demolished that. No historian now will support what that opinion says, because Thomas Jefferson had nothing whatsoever to do with drafting the First Amendment. Mr. King. So from a First Amendment standpoint, we are back to ``Congress shall make no law.'' Mr. Staver. Yes. Mr. King. And that stands today, and it has not been redefined by any succeeding precedent case---- Mr. Staver. Correct. Mr. King [continuing]. In your judgment. Would you agree, Mr. Baylor? Mr. Baylor. Well, your question is about whether the Establishment Clause applies to local and State government, as well, beyond Congress. Is that--am I understanding correctly? Mr. King. Well, I didn't ask you the question, but it is one we should get answered here, so I would ask your opinion on that. Mr. Baylor. Yeah. You know, that is not a question that is presently being debated very much among the courts. I think it is well-accepted that it ought to be applied and it ought to be applicable to the State and local governments, as well. But the question is, what does the thing mean? And when the phrase ``separation of church and state'' was initially used by the Supreme Court, it was to protect the church from the state, not to be a device under which the government discriminates against religion. And from 1947 forward, when the Supreme Court invoked that phrase and misinterpreted and misapplied it, all too many organizations and Justices were using this phrase as meaning, ``We must exclude Christian speakers or religious speakers from public settings; we must deny them equal access to funding.'' So the key issue is the meaning of the Establishment Clause. Mr. King. Is there any scholarship that there was ever an effort to actually insert those words into the Constitution, by amendment or in the original draft? Mr. Baylor. Well, the Blaine amendment that was proposed after the Civil War was designed to deny equal educational funding to religious schools, and that effort failed. And I think it is quite ironic that the Establishment Clause was subsequently interpreted by the court to hold precisely that. Now, thankfully---- Mr. King. Was there ever an effort---- Mr. Baylor [continuing]. The court changed its mind about that. Mr. King. Was there ever an effort to amend the Constitution, ever a proposal or an actual constitutional amendment that would have inserted language, ``a wall of separation,'' or similar language that you know of? Mr. Baylor. Not to my knowledge, no, sir. Mr. King. Reverend Lynn, are you aware of any? Rev. Lynn. No. I think it is right, because I think that it was commonly understood after the passage of the 14th Amendment that one of the purposes of the 14th Amendment, as articulated by the Republican sponsors of the 14th Amendment, was to apply the Bill of Rights to the States and, therefore, to guarantee this same what Jefferson called a ``wall of separation'' to State activity. Mr. King. Do you know anything about a report that I have that the Ku Klux Klan had actually made an effort to introduce that language in as an amendment to the Constitution, ``separation of church and state,'' and that it originated as an anti-Catholic bias from the Klan? Rev. Lynn. There was certainly anti-Catholic bias on the part of the Ku Klux Klan. They hated pretty much everyone who was not themselves. Mr. King. Does anyone on the panel---- Rev. Lynn. But this is not---- Mr. King [continuing]. Have any knowledge of that? Rev. Lynn. What? Mr. King. Does anyone on the panel have any knowledge of what I just brought up? Rev. Lynn. No. Mr. King. Hearing none--Dean Staver, I see you leaning forward. Mr. Staver. Well, I think, as Mr. Baylor said, that there was an effort with the Blaine amendment to specifically discriminate against, particularly, Catholic Church and Catholic schools. There were two attempts to amend the First Amendment to replace the words ``Congress shall make no law respecting'' to ``no State shall make no law.'' Both of those failed. Mr. King. I understand. And I appreciate all the witnesses' testimony. And I yield back the balance of my time. Mr. Franks. And I thank the gentleman. And I now recognize the gentleman from Virginia, Mr. Scott, for 5 minutes. Mr. Scott. Thank you, Mr. Chairman. Reverend Lynn, the school-prayer issue has been bandied back and forth. Can you tell me the implications of the Establishment Clause and the Free Exercise Clause in that issue? Rev. Lynn. I think it is a perfect example of where those two clauses have an independent and important meeting. The nonestablishment principle means, as the Supreme Court rightly said in the early 1960's, local governments cannot write a prayer, the so-called regent's prayer. No bureaucrat should write a prayer that every student should articulate. And then, just a year later, in another Supreme Court decision, the majority of the Court said it is also true that local governments cannot choose a prayer, even the Lord's Prayer, or select what holy scripture--in the case of Maryland and Pennsylvania, the Holy Bible of Christianity--and require it to be articulated in the schools. That is what the establishment principle means. What the free-exercise principle means is that if I want to have my child say a prayer, as she frequently did, in elementary school over her lunch, she was not barred from doing that. That was truly her independent decision, because that is something she learned in her family. That is free exercise of religion. Establishment is when the government decides the time, the place, the manner, or the content of prayer. That is properly forbidden and, I think, a long-established principle, which is why we don't have constitutional amendments on this matter coming up every year before the United States House and Senate as we did 20 years ago. Mr. Scott. Thank you. A lot has been said about the government picking a religious leader. Is there any question that a church, a synagogue, can discriminate based on religion in selecting their leadership with their congregational money? Rev. Lynn. We took a position in the Hosanna-Tabor case that was somewhat different than the Obama administration, concerned that that could be read too far, to act as if, if you were trying to hire a new rabbi, you had to make sure that you also went and considered Buddhist priests or a Wiccan priestess for the same position. We took the position that the issue is what can be defined as a minister and that a minister simply can't be defined by act of the congregation determining that a whole class of people happen to be ministers. So we have now been approached, for example, by African- Americans who work for churches who have been defined as ministers now, even though they might not have been a minister before the Hosanna-Tabor case, who say, we think race played a role in our dismissal. But thanks to the Hosanna-Tabor's broad language, that individual cannot go to the EEOC and say, ``Look, this is a fraud. It wasn't about religion. They fired me because of race.'' He or she cannot get into the EEOC's door, which means he or she cannot have access to Federal courts. That is a terrible decision. It went too far. I don't know why the administration took quite the broad position it did. We took a much narrower one. And I wish that that had been the majority opinion in that case instead of a nine-to-zero decision that opens the gates to widespread discrimination without any access to claim that gender or disability or even race was the true justification for a firing. Mr. Scott. Is there a difference in using Federal money rather than congregational money when you are talking about discrimination? Rev. Lynn. Oh, I think so. I mean, I think it is absolutely clear that the Federal Government continues to allow funding through grants and contracts to organizations that discriminate on the basis of religion. This is something the President said when he was a candidate for the Presidency in 2008 that he would change. Unfortunately, he has not done that, and it remains a persistent problem for civil rights in this country. To allow a group to get a government contract and not to be in a position to hire the best qualified person, to be allowed to hire on the basis of religious preference or their comfort level with hiring people of their same faith background, I think is a disgrace in the 21st century for anyone and certainly for this administration to continue to pursue. Mr. Scott. We are in the 51st anniversary of the signing by President Kennedy of the Equal Pay Act. If people have religious objections to equal pay, what happens? And is there any caselaw on that? Rev. Lynn. There is one case that I am aware of in the Fourth Circuit. It arose in a facility in the State of Virginia. The idea was that the school in Virginia would not pay men and women equally; they paid men more. They cited the Christian doctrine that as Christ is head of the church, so the husband is head of the family, and therefore justified giving husbands, mainly men, more money. This was litigated. That position lost in the First Circuit. It was not appealed to the United States Supreme Court. But it is another example of how if you say these laws can be selectively enforced, if I have a religious objection, it doesn't apply to me, it applies to not just birth control, it applies to all kinds of other medical procedures, it applies to the civil rights rubric of our country, it applies to the Equal Pay Act. As Justice Scalia once mentioned, it is a principle that courts anarchy. I think this is the first time I have ever quoted Justice Scalia in testimony before this or any Committee. Mr. Franks. The gentleman's time has expired. And I now recognize the gentleman from Virginia, Mr. Forbes, for 5 minutes. Mr. Forbes. Chairman, thank you. And, gentlemen, thank you, and ladies, for being here today. And, Mr. Lynn, I just heard the last part of your questioning from my good friend from Virginia, Mr. Scott, but I read your testimony, and the part where it said that there was a radical redefinition of religious liberty that is under way. Are you the one attempting that radical redefinition, or are you suggesting that the people sitting at the table with you are? Rev. Lynn. Well, I think that the--my suggestion is that the three people around me, all of whom I have known for many decades, are unfortunately radically trying to rewrite and turn this into---- Mr. Forbes. Let me ask you this question then. Are you suggesting that the test that you put forward is the current test that the courts have established for religious freedom and religious liberty? Rev. Lynn. I would say that it depends which courts you are talking about. The United States Supreme Court has made a series of decisions---- Mr. Forbes. Let me ask you on the United States Supreme Court where they said---- Rev. Lynn. Yep. Mr. Forbes. Because here is basically what you say. You say that religious accommodations and exemptions should only be granted when, one, there is a genuine and substantial burden on First Amendment right, and, two, that they not impinge on the interest of others. Is that the Supreme Court test? Rev. Lynn. That is not the Supreme Court test. Mr. Forbes. So, then, the test that you set forward would really be a radical redefinition of religious liberty, I think. And let me ask you this question. Based on the definition that you put forward, do I have a right not to be offended? And if so, is there ever a time when your right to practice your religion should be subordinated to my right not to be offended? Rev. Lynn. No, I don't like that phrase of ``take offense'' or ``be offended.'' I don't think Americans have a right not to be offended. I do think they have the right, though, not to be asked to subsidize someone else's religion with---- Mr. Forbes. Yeah, but that is not my question. Rev. Lynn [continuing]. Which they disagree. Mr. Forbes. So you agree with me that they don't have a right not to be offended? Rev. Lynn. I am offended 100 times a day by something. Mr. Forbes. Good. If I own a convenience store in Virginia that sells gas and my religious beliefs require me not to open on Sunday, is there ever a time when your interest to get gas while traveling through the State should cause my religious beliefs to be subordinated to your need for gas and I should be forced to open on Sunday? Rev. Lynn. No, I think that in that example you have a good, colorable claim that your right not to open--it is your position, it is not the State law, it is your position--does put some people in an area of inconvenience but does not in any way insult the integrity or the dignity as if you were to say to a gay couple walking into your restaurant, ``You know, folks, I am not going to serve you. You have to go elsewhere.'' Mr. Forbes. If I did open on Sunday but my religious beliefs required me not to sell alcohol or tobacco products on Sunday, is there ever a time when your interest to buy such products should cause my religious beliefs to be subordinate to your interest to buy such products and when I would be forced to sell them to you? Rev. Lynn. Depending on the State. If you are a State whose sales on Sunday of things like alcohol and tobacco are regulated by State law, I am afraid that if you want the license to sell, you probably under those circumstances need to also adopt the requirement of State law, if it is so, that you sell those products on Sunday. Rev. Lynn. I don't think there is any State that would require me to sell alcohol and tobacco. Rev. Lynn. I don't think there is either. Mr. Forbes. So, then, give me the State where the law would be as you just pointed out. Rev. Lynn. I don't know that there is a State. Mine was a hypothetical, that if you seek a license from the State and then you say, well, I want some of the privileges of it, like the ability to sell alcohol, but I don't want to abide by all of the other regulations---- Mr. Forbes. Well, there is no regulation that says I have to sell it. So what you are saying is that the State just says I can sell alcohol and tobacco. You are saying then I have to sell it 7 days a week, regardless of my religious beliefs? Rev. Lynn. No. I am just saying that it depends on what else you adopt---- Mr. Forbes. Well, Mr. Lynn, let me ask you this. Rev. Lynn [continuing]. When you adopt---- Mr. Forbes. Who draws these lines? Rev. Lynn. The courts. Mr. Forbes. Does the President--the courts do it? So then that means that the only way I know if I have a protected right under the First Amendment is for the court to tell me, which I think in and of itself can be a rather chilling impact on my First Amendment right. But, based on where the court currently is, their standard is that the State has to have a compelling State interest and that they have to impose that with the least restrictive means possible. Would you agree that is the current standard? Rev. Lynn. That is a part of the test. You do have to look at whether there is a burden on religion to begin with, which is in my example---- Mr. Forbes. I agree, you have to some burden, but I don't think the court always says it has to be the substantial burden, because it protects First Amendment rights. But you would agree that that is the current court test, that it has to be a compelling State interest and the least restrictive means possible? Rev. Lynn. In application of the Religious Freedom Restoration Act, absolutely, that is the standard. Mr. Forbes. And since---- Rev. Lynn. Unfortunately, all those terms are now at issue before courts---- Mr. Forbes. And since---- Rev. Lynn [continuing]. Because, Congressman---- Mr. Forbes [continuing]. My time has expired, my red light is on, I would just conclude by saying, I think to change that standard would be the radical redefinition of religious liberty. And, with that, Mr. Chairman, I yield back. Mr. Franks. I thank the gentleman. I wish we had more Forbes around. I would now yield to Mr. Johnson for 5 minutes. Mr. Johnson. Thank you, Mr. Chairman. Dean Staver, are you the same Mathew D. Staver as is Mathew D. Staver, PA? Mr. Staver. I had a commercial law firm that was Mathew D. Staver, PA. Mr. Johnson. Was that you, or was that a separate person? Mr. Staver. In Florida, if you name your law firm after your--in a situation like that, it was me, but it was also other attorneys in my law firm that I hired. We had up to 40 employees and 10 attorneys. That was back in the 1990's. Mr. Johnson. Did you give birth to that entity, to that person, Mathew D. Staver, P.A.? Did you give birth to it? Mr. Staver. I incorporated it under the laws of the State of Florida. Mr. Johnson. So a corporation is not the product of a union between a man and a woman? Mr. Staver. Not the last time I checked. Mr. Johnson. And a corporation has no ability to join a church, does it? Mr. Staver. No ability to join a church? Mr. Johnson. Uh-huh. Mr. Staver. A corporation could be an integrated auxiliary of a church and be part of a church. Mr. Johnson. Well, I mean, a person joining a church gets baptized. You have never heard of a corporation being baptized, have you? Mr. Staver. I have not, but if I were Mathew D. Staver, P.A., and I got baptized, I would be Mathew D. Staver being baptized. Mr. Johnson. You would be a natural person born to a man and a woman who decided to go to church and be baptized, right? Mr. Staver. Yes, operating as Mathew D. Staver, P.A. Mr. Johnson. But, now, Mathew D. Staver, P.A., does not have that ability, does it? Mr. Staver. Well, we never tried it, that is for sure. Mr. Johnson. Well, I have never heard of it being done, myself. In fact, an entity such as Mathew D. Staver, P.A., which was created 25 years ago, is actually dead, is it not? Mr. Staver. That is correct. It has been dissolved and has passed on to another world. Mr. Johnson. But it has not passed on to heaven, however. Mr. Staver. I don't know where it is, actually. Mr. Johnson. It did not pass to---- Mr. Staver. I didn't have that conversation before we dissolved it. Mr. Johnson. It did not pass through the pearly gates and enter the kingdom of heaven, did it? Mr. Staver. No, but its creator certainly---- Mr. Johnson. Well, I am not talking about Mathew D. Staver. I am talking about Mathew D. Staver, P.A., your baby. And that baby is dead. But you could always bring it back to life if you paid the fees down there in Florida and had it reborn, because it---- Mr. Staver. You could potentially resurrect it, yes. Mr. Johnson. Yeah. Yeah. And that would be something that you as a person can do. Mr. Staver. I could do that. Mr. Johnson. And, now, Mathew D. Staver has no conscience. Mr. Staver. Mathew D. Staver has no conscience? Or Mathew D. Staver, P.A.? Mr. Johnson. Mathew D. Staver, P.A., has no conscience. Mathew D. Staver, P.A. Mr. Staver. Mathew--yeah. Mathew D. Staver, just for the record, since we are on the record---- Mr. Johnson. Does have a conscience? Mr. Staver [continuing]. Does have a conscience. But Mathew D. Staver, P.A., reflects the values of the incorporator or the creator, which was me. Mr. Johnson. But it doesn't have a soul, though, does it? Mathew D. Staver, P.A., it doesn't have a soul, does it? Mr. Staver. No, not that I am aware of. Mr. Johnson. Well, not that I am aware of either. Now---- Mr. Franks. Do any lawyers have souls? Just for clarification. Mr. Staver. Yeah. And since we are on the record, definitely, they do have souls. So---- Mr. Johnson. Well, would you contend that a corporation that can't go to heaven, it can be reborn in perpetuity if you pay money, it is not born to the union between a man and a woman, it doesn't have a soul, it doesn't have a heart, doesn't attend church, doesn't get baptized, can't pay tithes and offerings, do you contend that a corporation has a First Amendment right upon which it can refuse to provide insurance coverage for specific medical treatments to an employee legally entitled to the coverage because it asserts a First Amendment right to freedom of religion? Mr. Staver. Yes, I do. And I know a lot of people who have not been baptized, don't pay tithes, don't go to church, don't have a heart, and I don't know whether they have a soul of whatever, but---- Mr. Johnson. Well, you know they---- Mr. Staver.--I know that they can go through plastic surgery and medical treatment to stay alive, that they still have rights as a person. Mr. Johnson. Pastor Staver, you know that every human being has a soul. Mr. Staver. Oh, sure. Mr. Johnson. You know that. Mr. Staver. Yeah. Mr. Johnson. But you also know that no corporation is equal to a person and no corporation has a soul. You know that. Mr. Staver. There are actually corporations, not to be technical, that are called ``corporations sole,'' but that doesn't mean you have a soul. However---- Mr. Johnson. I mean in the way that---- Mr. Staver.--I believe that corporations, especially those that are closely held corporations, as in the case of Hobby Lobby, reflect the values of the creator, as Mathew D. Staver reflected my values. Mathew D. Staver, P.A., was a reflection and an extension of Mathew D. Staver. Mr. Johnson. But it did not have its own First Amendment right to freedom of speech and---- Mr. Staver. Yes, it---- Mr. Johnson [continuing]. Freedom of religion, did it? Mr. Staver. Yes, I believe it does. Mr. Johnson. All right. Mr. Staver. Of course, the issue of freedom of religion is before the court, but free speech has already been decided. Mr. Johnson. Free speech has already been decided, and that is what really scares me about a freedom-of-religion issue being before the U.S. Supreme Court at this particular time. It scares me. And, with that, I will yield back. Mr. Franks. I thank the gentleman. Well, while we have debated whether corporations have hearts and souls, sometimes we--there are those of us that believe that the unborn do, in fact, have hearts and souls and that when they are aborted it assaults their integrity and dignity and that some Christians would rather not subsidize that and feel like that under the Constitution we should have that right. So I have just tried to pull together a few pieces of the testimony here. I appreciate all of you for being here. And I hope all of us consider the importance of religious freedom. This has been a very lively debate, and if there really is a God, it might be relevant. So, with that, all Members have--let's see. Again, thank you all for attending, and this concludes today's hearing. Without objection, all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record. And I thank the witnesses, and I thank the members of the audience. And this meeting is adjourned. [Whereupon, at 4:48 p.m., the Subcommittee was adjourned.] A P P E N D I X ---------- Material Submitted for the Hearing Record Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice Religious freedom is a fundamental pillar of American life. Whatever one's religious beliefs, our Constitution enshrines the notion that the government remain neutral with respect to religious belief, neither favoring one religion over others, nor favoring religious belief over non-belief. Our Constitution and statutes also require that the government not substantially burden the free exercise of religion absent a compelling interest and a less burdensome means of meeting that interest. In expounding upon the meaning of these Constitutional provisions, Thomas Jefferson wrote in a letter to the Danbury Baptist Association in 1802: ``I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.'' It is because religious freedom is so fundamental that it is protected in the very first Amendment in the Bill of Rights. It is also why I was the sponsor of Tennessee's Religious Freedom Restoration Act back in January 1998, when I was a member of the Tennessee Senate. Like the federal RFRA, the Tennessee RFRA protects religious liberty by ensuring that any governmental action that substantially burdens the free exercise of religion is prohibited unless there is a compelling state interest. Tennessee's RFRA, like the federal RFRA, seeks to strike a balance between the fundamental right to practice one's religion free from government interference and the ability of the government to perform its basic duties, including the protection of public health and safety and fighting discrimination. Any discussion of religious liberty must also include a discussion of the threats--both governmental and non-governmental--to members of minority religions. For example, as Reverend Barry Lynn, one of our witnesses, notes in his written testimony, a Muslim congregation in Murfreesboro, Tennessee faced intimidation and threats of violence from the local community when it attempted to construct a new mosque. While the mosque ultimately was built, the legal fight over its construction ended only recently, at great cost to the congregation for a fight that it should never have had to fight. This example, which, unfortunately, is only one of many, reminds us that the Bill of Rights' fundamental purpose is to protect the minority, the unpopular, and the non-mainstream from majority tyranny. Where one's right to free exercise of religion ends and majority tyranny begins will be the crux of our discussion today. Seven years ago, this Committee heard from Monica Goodling, who at that time had just resigned as a Justice Department official, concerning hiring practices at the Department during the Bush Administration. Ms. Goodling was a graduate of Regent University Law School, which, according to its website, seeks to provide legal training with ``the added benefit of a Christian perspective through which to view the law.'' There was evidence at the time that Ms. Goodling and others screened job candidates for career positions at the Justice Department based on their partisan affiliations. Although she denied it when I asked her, it stands to reason that religious belief could have also played a role in hiring decisions. A religious litmus test for public office or for career public service positions has no place in a society that values religious liberty. More broadly, attempts to re-make our Nation's longstanding political and legal culture so as to give already-dominant religious groups more of the coercive power of government must be confronted, for if such attempts are successful, the outcome would represent a threat to a free society. I look forward to a vibrant discussion.
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary Religious freedom was one of the core principles upon which our Nation was founded. The First Amendment protects this fundamental freedom through two prohibitions. The Establishment Clause prohibits the federal government from issuing a law respecting the establishment of religion and the Free Exercise Clause prohibits the government from affecting the free exercise thereof. When discussing the government's compliance with these prohibitions, we should keep in mind several points. To begin with, the real threat to religious liberty is continuing religious bias or intolerance against members of minority religions. For example, American Muslim communities across the United States since September 11, 2001 have been targets of often hostile communities and sometimes even government actions. There have been numerous well-founded complaints of religious profiling by federal, state, and local law enforcement agencies. In fact, bills have been introduced in Congress as well in various state legislatures targeting Islam. It was recently reported that the Transportation Security Agency is using a ``behavioral detection program'' that appears to focus on the race, ethnicity and religion of passengers. As many of you may know, I represent Michigan's 13th District, which is home to one of America's largest Muslim communities. So, I am particularly disheartened by the overt challenges these communities face. Targeting American Muslims for scrutiny based on their religion violates the core principles of religious freedom and equal protection under the law. All Americans--regardless of their religious beliefs-- should know that their government will lead the effort in fostering an open climate of understanding and cooperation. Yet in the name of religious freedom we cannot undermine the government's fundamental role with respect to protecting public health and ensuring equal treatment under the law. Currently pending before the United States Supreme Court are two cases--Sebelius v. Hobby Lobby Stores and Consestoga Wood Specialities v. Sebelius--that will hopefully clarify this issue. The issue in those cases is whether the government can require can require for-profit corporations that provide group health plans for their employees to provide female employees with plans that cover birth control and other contraceptive services as required by the Affordable Care Act, notwithstanding the religious objections of the corporations' owners to contraceptives. I along with 90 of my colleagues in the House filed an amicus brief in those cases disputing that the claim that corporate plaintiffs are ``persons'' for the purposes of the Free Exercise Clause. And, even if they are capable of having religious beliefs, those corporations are not entitled to relief under the Religious Freedom Restoration Act. Moreover, the Affordable Care Act's mandate, we argue, serves two compelling governmental interests--namely, the protection of public health and welfare and the promotion of gender equality--that outweigh whatever attenuated burden the mandate might place on the corporations' free exercise rights. Finally, as even some of the Majority witnesses acknowledge, the Obama Administration's enforcement efforts with regard to protecting religious freedom--in the workplace and elsewhere--are to be commended. On various fronts, the Administration has striven to take a balanced approach to this issue. For example, it added a religious employer exemption to the HHS contraceptive mandate in response to objections from religious employers. These efforts ensure that America continues to foster a safe and welcoming environment for all religious practices and communities without sacrificing our other freedoms and needs. Material from the Anti-Defamation League (ADL) submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] [all]