<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:97033.wais]
S. Hrg. 108-707
BEYOND THE PLEDGE OF ALLEGIANCE:
HOSTILITY TO RELIGIOUS EXPRESSION IN THE PUBLIC SQUARE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 8, 2004
__________
Serial No. J-108-80
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
JOHN CORNYN, Texas, Chairman
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
James C. Ho, Majority Chief Counsel
Robert F. Schiff, Demdcratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 77
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
prepared statement........................................... 83
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 93
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 102
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 16
WITNESSES
Clark, William ``Barney'', Balch Springs, Texas.................. 20
Edwards, Hon. Chet, a Representative in Congress from the State
of Texas....................................................... 10
Garnett, Richard W., Associate Professor of Law, Notre Dame Law
School, South Bend, Indiana.................................... 41
Hearn, Nashala, Muskogee, Oklahoma............................... 17
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana.. 8
Moore, Roy S., Former Chief Justice, Supreme Court of Alabama,
Birmingham, Alabama............................................ 24
Munoz, Vincent Phillip, Civitas Fellow of Religion and Public
Life, American Enterprise Institute, Washington, D.C., and
Assistant Professor of Political Science, North Carolina State
University..................................................... 46
Rogers, Melissa, Visiting Professor of Religion and Public
Policy, Wake Forest University Divinity School, Winston-Salem,
North Carolina................................................. 43
Rosenauer, Steven, Bradenton, Florida............................ 18
Shackelford, Kelly, Chief Counsel, Liberty Legal Institute,
Plano, Texas................................................... 28
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama... 6
Walker, J. Brent, Executive Director, Baptist Joint Committee on
Public Affairs, Washington, D.C................................ 22
QUESTIONS AND ANSWERS
Responses of Roy Moore to questions submitted by Senator Kennedy. 60
Responses of Vincent Munoz to questions submitted by Senator
Cornyn......................................................... 63
Responses of Vincent Munoz to questions submitted by Senator
Kennedy........................................................ 66
Responses of Kelly Shackelford to questions submitted by Senator
Cornyn......................................................... 68
Responses of Kelly Shackelford to questions submitted by Senator
Kennedy........................................................ 70
SUBMISSIONS FOR THE RECORD
Clark, William ``Barney'', Balch Springs, Texas, prepared
statement...................................................... 72
Edwards, Hon. Chet, a Representative in Congress from the State
of Texas, prepared statement................................... 81
Garnett, Richard W., Associate Professor of Law, Notre Dame Law
School, South Bend, Indiana, prepared statement................ 85
Hearn, Nashala, Muskogee, Oklahoma, prepared statement........... 95
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana,
prepared statement and attachment.............................. 97
Liberty Legal Institute, Plano, Texas, examples of hostility to
religious expression........................................... 104
Moore, Roy S., Former Chief Justice, Supreme Court of Alabama,
Birmingham, Alabama, prepared statement........................ 133
Munoz, Vincent Phillip, Civitas Fellow of Religion and Public
Life, American Enterprise Institute, Washington, D.C., and
Assistant Professor of Political Science, North Carolina State
University, prepared statement................................. 138
People for the American Way Foundation, Elliot M. Mincberg, Vice-
President and Legal Director, Washington, D.C., letter......... 141
Rogers, Melissa, Visiting Professor of Religion and Public
Policy, Wake Forest University Divinity School, Winston-Salem,
North Carolina, prepared statement............................. 143
Rosenauer, Steven, Bradenton, Florida, prepared statement........ 162
Shackelford, Kelly, Chief Counsel, Liberty Legal Institute,
Plano, Texas, prepared statement............................... 164
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama,
prepared statement............................................. 170
Walker, J. Brent, Executive Director, Baptist Joint Committee on
Public Affairs, Washington, D.C., prepared statement........... 172
BEYOND THE PLEDGE OF ALLEGIANCE: HOSTILITY TO RELIGIOUS EXPRESSION IN
THE PUBLIC SQUARE
----------
TUESDAY, JUNE 8, 2004
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:11 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
Chairman of the Subcommittee, presiding.
Present: Senators Cornyn, Sessions, and Feingold.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. This hearing of the Senate Subcommittee on
the Constitution, Civil Rights and Property Rights will come to
order.
I want to thank Senator Hatch, the Chairman of the full
Committee, for scheduling this hearing, as well as thank the
distinguished Ranking Member, Senator Feingold, who will be
here momentarily, and his staff for working with my office to
help make this hearing possible.
We have a number of witnesses, and that is one reason why I
didn't want to delay the hearing any longer, because many have
come an awful long way to be here with us, so I am anxious to
get to their testimony as soon as possible.
I will make a few brief remarks, and then Senator Feingold,
of course, will have an opportunity to make any remarks he sees
fit. And, without objection, my full written statement will be
made part of the record. Then, of course, we will have a panel
of Members of Congress. Senator Shelby, Senator Landrieu, and
Representative Edwards will be our first panel, and we will
proceed from there.
The United States Supreme Court will soon decide whether
the First Amendment forbids school teachers across America
leading students in the voluntary recitation of the Pledge of
Allegiance, simply because the Pledge affirms what we all know
to be true--that our Nation was founded ``under God.''
The Senate has unanimously and repeatedly condemned the
Ninth Circuit's contrary ruling striking down the Pledge. A
majority of the Members of this Subcommittee filed the first
amicus brief in the U.S. Supreme Court defending the Pledge on
the merits. And the vast majority of Americans agree with the
Senate--rather than with the Ninth Circuit and the American
Civil Liberties Union--on the constitutionality of the Pledge.
But however the Court ultimately rules, the Pledge case
reminds us of a broader, systemic problem caused by the Court's
previous rulings: an unjustifiable hostility to religious
expression in public squares across America. And just as there
is bipartisan agreement on the constitutionality of the Pledge
of Allegiance, so should there be bipartisan agreement that
Government should never be hostile to expressions of faith.
Accordingly, our hearing today is entitled ``Beyond the
Pledge of Allegiance: Hostility to Religious Expression in the
Public Square.'' Our witnesses will examine issues of
Government discrimination against religious expression
generally, including both discrimination against religious
versus non-religious expression in Government speech, as well
as discrimination against purely private expressions of faith.
It is difficult to think of a provision of the United
States Constitution that has been so badly misunderstood and
misapplied as the First Amendment with respect to the subject
at hand or with worse consequences for our coarsened culture
and discourse.
The First Amendment contains two important provisions with
respect to religious liberty. It respects the ``free exercise''
of religion against Government interference or intrusion. And
it also provides that Congress shall make no law ``respecting
an establishment of religion.''
The Founders included the Establishment Clause because they
wanted to forbid Government from taking any action either to
establish an official state church or to favor a particular
religious denomination in some way.
Notably, nothing in these provisions requires Government to
be hostile to religious speech or religious practice or
religious liberty overall. The Constitution nowhere requires
Government to expel expressions of faith from the public
square. Nor does the Establishment Clause forbid Government
from acknowledging, indeed celebrating, the important role that
faith has historically played in the lives of the American
people, dating back to the Founders themselves.
This week, the Nation mourns the passing of a great man,
President Ronald Reagan. I think he spoke for the American
people when he said in 1983, and I quote, ``When our Founding
Fathers passed the First Amendment, they sought to protect
churches from government interference. They never intended to
construct a wall of hostility between government and the
concept of religious belief itself.''
After all, references to faith permeate our Nation's
history. References to faith can be found across our Nation's
most important institutions of Government, in our fundamental
legal documents, and on our cherished cultural treasures. Our
currency is emblazoned with the phrase ``In God We Trust.'' The
public buildings of all three branches of Government--including
the United States Supreme Court--are decorated with numerous
references to God. The Declaration of Independence acknowledges
the Founders' ``firm reliance on the protection of Divine
Providence.'' It talks about ``nature's God'' and our
``Creator,'' while the Constitution itself refers to ``our
Lord.''
An Act of Congress authorized President Washington to issue
the Nation's first Thanksgiving Proclamation. Moreover, that
Proclamation specifically referenced the ``duty of all Nations
to acknowledge the Providence of Almighty God, to obey his
will, to be grateful for his benefits, and humbly to implore
his protection and favor.'' And on the very day that Congress
proposed the First Amendment, it also approved the Northwest
Ordinance, which expressly directed to U.S. territorial
governments that ``[r]eligion, morality, and knowledge, being
necessary to good government and the happiness of mankind,
schools and the means of education shall forever be
encouraged.''
So there is ample precedent and strong tradition to support
Government speech that acknowledges, accommodates, and indeed
celebrates the importance of faith in the lives of the American
people.
Moreover, the First Amendment specifically protects private
religious expression in the public square by guaranteeing both
the free exercise of religion and freedom of speech against
Government interference. As Justice Scalia has aptly written,
``a priest has as much liberty to proselytize as a patriot''--a
principle that holds in the public square the same as on
private property.
Despite these clear constitutional commands, however, some
courts, led by the United States Supreme Court, have
demonstrated a clear and unmistakable hostility towards
religious expression in the public square.
Given this troubling and incoherent jurisprudence, it is no
surprise that local governments have far too often demonstrated
similar hostility to religious expression as a result. Whether
out of ideological motivation, ignorance of the law, or simple
fear of litigation, local governments across the Nation have
repeatedly attempted to banish faith from the public square.
Today, we will hear the personal stories of citizens who
have experienced Government hostility to religious expression
firsthand.
They are just a few of the countless examples from across
the country. Children across America are being barred from
sharing candy canes with classmates. Teachers are being
reprimanded for circulating the President's Proclamation of a
Day of National Prayer through their school e-mail accounts.
Schools are specifically targeting religious groups and
excluding them from their campuses.
The situation has become so extreme that even patriotic and
other non-religious references to faith have been attacked. It
is simply patriotic to recite the Pledge of Allegiance, yet the
Ninth Circuit believes it is unconstitutional in public
schools. The Los Angeles County seal is under attack by the
American Civil Liberties Union because it includes a depiction
of a cross--a cross that simply reflects ``the historical
importance of the Catholic missions'' in California.
This pervasive hostility to faith is wrong, and it is
without constitutional basis.
I hope today's hearing will accomplish two things. First,
we must reaffirm our bipartisan commitment to religious freedom
and liberty in the public square. And, second, we must
recognize that unfortunate and unjustified hostility to
religious expression is pervasive, and it must be stopped.
The restoration of religious liberty and celebration
envisioned by the Founders should be a bipartisan effort. The
judicial attack on the Pledge of Allegiance has been
unanimously condemned by the United States Senate. And both the
Clinton and Bush administrations have issued Department of
Education guidelines forbidding discrimination against religion
by public schools, consistent with a Congressional mandate in
the No Child Left Behind Act.
I began my remarks by quoting public expenditure review. I
would like to close with the words of President Clinton, who
stated in 1995: ``Americans feel that instead of celebrating
their love for God in public, they're being forced to hide
their faith behind closed doors. That's wrong. Americans should
never have to hide their faith. But some Americans have been
denied the right to express their religion and that has to
stop. That has happened and it has to stop.''
I agree. Americans should never have to hide their faith.
They have the constitutional right to exercise their faith
openly--not just at home, but in the public square as well.
[The prepared statement of Chairman Cornyn appears as a
submission for the record.]
Chairman Cornyn. With that, I will turn the floor over to
the distinguished Ranking Member, Senator Feingold, for any
opening statement he cares to make.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
A guarantee of religious freedom was fundamental to our
Nation's founding. The Pilgrims and other settlers braved
crossing the Atlantic Ocean because they were fleeing religious
persecution and wanted to live where they could exercise their
religious beliefs freely. And so it is not surprising that a
guarantee of the free exercise of religion without Government
intrusion would be contained in the very first line of the
first of ten rights guaranteed to every American in the Bill of
Rights.
The First Amendment to the Constitution provides,
``Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.'' In other
words, the First Amendment contains two important guarantees of
religious freedom: the Free Exercise Clause and the
Establishment Clause. Americans have the right to exercise
their religion, and Americans of any faith or no faith at all
have the right to be free from Government establishment of
religion in their lives. Together, the Free Exercise Clause and
the Establishment Clause have allowed religion in our Nation to
flourish. In addition, as President Bush has noted, preserving
religious freedom has helped America avoid the wars of religion
that have plagued so many cultures throughout history with
deadly consequences.
So, Mr. Chairman, with all due respect, I disagree a bit
with the title of this hearing, ``Hostility to Religious
Expression in the Public Square.'' At least in my experience, I
do not think that there is such widespread hostility. There may
be confusion. There may be some in our country who would like
to censor all public expressions of religious faith, and there
are others that may want to read the Free Exercise Clause in
isolation and then ignore the Establishment Clause, even to the
point of having a state-sponsored religion.
The fact is that the First Amendment in its entirety has
served our Nation well and has allowed religious expression to
thrive and not be stifled. Americans are a deeply religious
people, and yet we have no official state religion. Those two
facts taken together succinctly express the genius of the
Framers in the area of religious freedom. In recent years,
there has been a lot of confusion about what the religion
clauses of the First Amendment require and forbid. I hope that
this hearing does clarify those areas of confusion, from the
Pledge of Allegiance to religious garb in schools, to
expression of religious faith by private citizens in public
buildings or at public events, to Government-sponsored
sectarian prayers at such events.
Ours is a Nation built on diversity and religious
pluralism. The legacy of religious liberty in our Nation is
unparalleled in human history, and we in the Congress have a
special duty to protect and nurture that legacy. I supported
the Religious Freedom Restoration Act of 1993. I thought the
Supreme Court had made a mistake in the Smith decision in 1990
by reducing the protection of religious expression from
governmental intrusion. I was disappointed when the Court later
struck down the Religious Freedom Restoration Act as an
inappropriate exercise of Congressional power.
In 2000, Congress enacted the Religious Land Use and
Institutionalized Persons Act and may need to enact further
legislation to protect the free exercise of religion. But I
hope it does so in a way that respects the Establishment Clause
as well.
Americans were acutely reminded of our Nation's tradition
of religious freedom earlier this year when France banned
religious articles and symbols in state schools. This meant
that Christian, Jewish, Muslim, and Sikh students and students
of other faiths would be denied the right to practice their
faith once they entered the schoolhouse door. Thankfully, our
Nation has never seen a similar effort to stifle individual,
voluntary religious expression by students in our public
schools, although there have been instances where Government
officials misunderstood the law.
As we will hear from Nashala Hearn this afternoon, she
experienced one such unfortunate episode. But I am very pleased
that her case reached the proper result--a result that
reaffirms religious freedom.
Like many Americans, Mr. Chairman, I disapproved of the
Court of Appeals decision in Newdow v. U.S. Congress, the
Pledge of Allegiance case. I joined my Senate colleagues when
we unanimously expressed our view that the Pledge is
constitutional. The phrase ``under God'' in the Pledge is not
and should not be construed as Government establishment of
religion. The Supreme Court will issue its decision in the
Newdow case any day now, and I, like most Americans, am hopeful
that the Supreme Court will uphold the Pledge.
While I do think the lower court went too far in finding a
violation of the Establishment Clause, we should, nevertheless,
recognize that the Establishment Clause has an important role
in protecting all Americans and their right to exercise their
religion or no religion at all.
Today, we will hear from Steven Rosenauer, whose
experience, I believe, will illustrate the need to be mindful
of the importance of the Establishment Clause as we consider
the issue of religious expression at public events.
I am also very pleased that we have Reverend Brent Walker
and Professor Melissa Rogers here this afternoon. Reverend
Walker is with the Baptist Joint Committee on Public Affairs
and is an ordained Baptist minister. He understands the legal,
practical, and theological dimensions of religious freedom.
Professor Rogers was formerly with the Pew Forum on religion
and public life, and currently a professor at Wake Forest
University's Divinity School. She will give us insight into the
legal and policy issues involved in this debate, which is as
old as the republic itself.
Finally, I want to welcome our Senate colleagues on the
first panel, of course, and Representative Chet Edwards of
Texas, one of the most passionate defenders of religious
liberty in the Congress and in our Nation.
In sum, Mr. Chairman, I believe that the First Amendment
provides parameters that have been absolutely critical in
protecting religious freedom and allowing Americans to thrive
in and practice whatever religion they choose. These are
parameters that have served our Nation well since its founding.
Despite the title of this hearing, I believe that the First
Amendment is alive and well in our country, as is religion.
Thank you, Mr. Chairman. I do look forward to the
testimony.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Cornyn. Thank you, Senator Feingold.
And, with that, we will turn to our distinguished panel and
ask you, Senator Shelby, if you will lead off and make such
statement as you see fit.
STATEMENT OF HON. RICHARD SHELBY, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Shelby. Thank you, Mr. Chairman. First of all, I
would ask that my entire written statement be made part of the
record.
Chairman Cornyn. Without objection.
Senator Shelby. Chairman Cornyn, Senator Feingold, Senator
Sessions, and Members of the Subcommittee, I want to thank you
for holding this important hearing and for having me here to
discuss briefly the Constitution Restoration Act. Joined by
Senators Miller, Brownback, Allard, Graham, Bunning, Lott, and
Inhofe, I introduced Senate bill 2323, the Constitution
Restoration Act. Like millions of Americans, I believe that the
courts have exceeded their power. This legislation recognizes
the rights of the States and the people as embodied in the
Declaration of Independence and the Constitution, Ninth and
Tenth Amendments, to acknowledge God. In short, this
legislation goes to the very foundation of our country and the
legitimacy of our system of Government.
Over the years, we have seen a disturbing and growing trend
in our Federal courts to deny the rights of our States and our
citizens to acknowledge God openly and freely. These tortured
legal decisions distort our Constitution, our Nation's history,
and its tradition in an effort to secularize our system of
Government and to divest morality from our rule of law.
Four years ago, Mr. Chairman, the Supreme Court determined
that students could not engage in voluntary prayer at a school
football game. Last year, as you noted, the Ninth Circuit Court
of Appeals ruled that it was unconstitutional to recite the
words ``one Nation, under God'' in the Pledge of Allegiance.
And a district court in my home State of Alabama ruled that it
was unconstitutional to display the Ten Commandments.
I believe it is unfortunate that there are so many examples
to point to because the simple fact is our Government and our
laws are based on Judeo-Christian values and a recognition of
God as our Creator. The Declaration of Independence, by which
we justify the very foundation of our political system, holds
these truths to be self-evident, ``that all men are created
equal, that they are endowed by the Creator with certain
inalienable rights.''
Our motto, Mr. Chairman, as you noted, is ``In God We
Trust.'' It is enshrined on our currency. Our national anthem
recognizes our motto as ``in God is our trust.''
As Federal officials, we each took an oath of office
swearing to uphold the Constitution, so help me God. The
President takes a similar one. State and local officials and
our military personnel all swear a similar oath. Jurors and
witnesses in our State and Federal courts take an oath, as do
witnesses before Congress, to tell the truth, so help me God.
Our courts, including the Supreme Court, recognize God in
their official proceedings. Both the House and Senate
acknowledge God through an opening prayer every morning. Our
public buildings and monuments honor this heritage through
various depictions of the basic moral foundations of our laws
and our system of Government.
My point, Mr. Chairman, is this: that you simply cannot
divest God from our country. Our country has no foundation
without a basic recognition that God invests us at birth with
basic individual rights, such as the blessings of liberty that
we all enjoy as Americans.
There is no question that the courts have exceeded and
abused their power, in my opinion. The Constitution Restoration
Act recognizes the rights of the States and the people to
acknowledge God as embodied in the Declaration of Independence
that you referenced and the Constitutions of the United States
and the individual States.
This recognition, I believe, Mr. Chairman, is the very
basis for the First Amendment prohibition against the
establishment of an official church or religion. The
Constitution Restoration Act further prohibits Federal courts
from basing their opinions on foreign law, contrary to the
Constitution that they are sworn to uphold.
The list of legal decisions abridging our right to
acknowledge God is far too long. It is imperative that we
exemplify how these decisions affect the lives of real people
and that they are not just words on paper. I am pleased that
the Committee under your leadership has taken this step and
will hear testimony from individuals who have had their rights
abridged, and I look forward to their testimony.
Mr. Chairman, I thank you for allowing me to appear here,
and I look forward to the others. Thank you.
[The prepared statement of Senator Shelby appears as a
submission for the record.]
Chairman Cornyn. Thank you, Senator Shelby, for those
thoughtful remarks and for your presence here today.
Senator Landrieu, we are delighted to have you here and
would be happy to hear any opening statement you might care to
make.
STATEMENT OF HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE
OF LOUISIANA
Senator Landrieu. Thank you, Mr. Chairman, for inviting me
to be part of this important hearing this morning, and I ask
that my entire text be submitted to the record.
Chairman Cornyn. Without objection.
Senator Landrieu. But for the purposes, I will try to
shorten it. I thank my colleagues for being present as well.
I would like to begin my testimony with a quote from
Benjamin Franklin, who we all think of as one of the foremost
philosophers of democracy. He asked a very important question
at the Constitutional Convention. ``In the beginning of the
contest with Britain, when we were sensible of danger, we had
daily prayers in this room for divine protection. Our prayers,
sir, were heard, and they were graciously answered.'' He asked,
``Do we imagine we now no longer need his assistance?''
Mr. Chairman, we would do well to ask ourselves Mr.
Franklin's question again today. The rituals all around us
indicate that we do need God's assistance for our great
experiment in democracy to work. We opened the Senate today
with a prayer, led by our chaplain. It has been a tradition
followed from the beginning of our Nation, over 200 years, and
the Senate and our Nation are stronger for it.
We are stronger because we acknowledge a higher power than
our selfish interest. We are stronger because we honor the free
practice of all religions. Our Nation is stronger because our
Government does not endorse one religion over another. But
while we maintain a separation between church and state, we do
not separate God from our state.
Mr. Chairman, this hearing could not be more timely. The
United States Supreme Court is expected to announce a decision
very quickly in the case of Elk Grove Unified School District
v. Newdow before the end of this current session.
As Members of this Subcommittee know, the Court of Appeals
for the Ninth Circuit found that the phrase ``under God'' was
not constitutional. The Pledge has been part of American life
since 1942, and Congress added ``under God'' to the Pledge in
1954.
Like many of my colleagues, I was shocked by the Ninth
Circuit decision. The day the decision was announced in June of
2002, I introduced a constitutional amendment that simply says
that references to God in the Pledge of Allegiance and on our
currency do not effect an establishment of religion in
violation of the First Amendment. It has been reintroduced in
the 108th Congress as Senate Joint Resolution 7. Other Senators
have cosponsored it with me, and I would ask that a copy of
this resolution be placed in the record of this hearing.
Chairman Cornyn. Without objection.
Senator Landrieu. Mr. Chairman, you do not need to be a
legal scholar to know that this decision is an affront to
common sense. References to God are found in every one of our
founding documents, from the Declaration of Independence to the
Constitution itself, as well as the Pledge of Allegiance.
President James Madison, who we appropriately acknowledge as
the Father of the Constitution, wrote to the Virginia General
Assembly, ``We have staked the whole future of American
civilization not upon the power of Government. Far from it. We
have staked the future of our political institutions upon our
capacity to sustain ourselves according to the Ten Commandments
of God.''
Those of you on the Committee who have studied the writings
of the Founders understand that there was broad difference
among them about the nature of God and the role that religion
played in their personal lives. But I do not think you could
find anyone present at the creation of our Nation that doubted
that Divine Providence played a role in our victory and in the
crafting of the document that binds us together as the United
States.
So when we acknowledge that history with the phrase ``under
God,'' we do little more than reiterate something that our
Founding Fathers accepted as a fundamental truth. Only
something greater than ourselves could have created America.
Something more significant than self-interest was needed to
make E Pluribus Unum. They thought that something was the power
of the divine. The Founders have almost never given us reason
to doubt their wisdom. And so because of that, the Founding
Fathers wanted us to only amend the Constitution when it was
absolutely necessarily, I believe, and just using an
extraordinary remedy. So what I have done by introducing this
acknowledges that, and I do not propose this change lightly.
However, the Ninth Circuit simply went too far. The separation
of church and state was intended to ensure neutrality between
faiths by our Government, not to eliminate all references to
God and religion from public life.
Mr. Chairman, the Pledge of Allegiance has been part of the
fabric of our country for 50 years. It has not been a tool of
religious persecution, and no harm has come from it. I hope the
Supreme Court uses common sense when it decides this case this
month. If it decides to overrule the lower court and upholds
the reference to God in the Pledge of Allegiance, then my
amendment, S.J. Resolution 7, would not be necessary. I hope
that that ends up being the case.
If the Court, however, decides to uphold the lower court's
decision, the Congress can and, in my opinion, should begin the
process of restoring the proper balance between church and
state and to restore the historical purpose of the Pledge of
Allegiance by amending the Constitution.
Thank you, Mr. Chairman.
[The prepared statement of Senator Landrieu, and the text
of S.J. Res. 7, appear as submissions for the record.]
Chairman Cornyn. Thank you very much, Senator Landrieu, for
being here today with the Subcommittee and for those remarks.
Congressman Chet Edwards of Texas is here, and we welcome
you to the Subcommittee and would be glad to hear any statement
you might have.
STATEMENT OF HON. CHET EDWARDS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF TEXAS
Representative Edwards. Mr. Chairman, thank you very much.
Senator Feingold, Senator Sessions, thank you for the chance to
testify before you.
I support Senator Landrieu's amendment, but let me just say
right up front that this hearing today is not about who is for
God and who is against God, who is for prayer and who is
against prayer. And I think it is important for all of us on
both sides of this issue not to try to suggest that division,
directly or indirectly.
While, yes, our Founding Fathers referenced Divine
Providence in the Declaration, I would challenge any Member of
the Subcommittee or anyone in this room to show me where the
reference to God is made in the Constitution. They purposely
chose not to put God in the Constitution, not because of
disrespect to God but out of total respect to God and Divine
Providence. Our Founding Fathers in their wisdom understood
that secular Government should not have power over American
citizens' souls and religious faith, and that is what the
Establishment Clause is all about.
One cannot fully discuss the issue of religion in the
public square without first addressing the fundamental
question: What is the proper relationship between church and
state? Mr. Madison and Mr. Jefferson thought the question so
important that they debated it for a decade in the Virginia
Legislature. Our Founding Fathers placed so much importance on
the question of church and state that they chose to put their
answer to that question not just anywhere, but in the first 16
words of the First Amendment of the Bill of Rights: ``Congress
shall pass no law respecting an establishment of religion, or
prohibiting the free exercise thereof.''
In his letter to the Danbury Baptists of Connecticut in
1802, Mr. Jefferson said the intent of this constitutional
principle was to build a wall of separation between church and
state. Perhaps America's greatest single contribution to the
world from our experiment in democracy has been the religious
freedom and tolerance that have resulted from the principle of
church/state separation. In fact, I would ask anyone to show me
any nation where direct government funding or entanglement with
religion has resulted in more religious freedom or tolerance
than we have in America today.
As a person of faith, a lifelong Methodist, and a son-in-
law of a Baptist minister, I thank God that we live in a Nation
where our Founding Fathers had the wisdom to put religion and
religious freedom on a pedestal far above the reach of
politicians. Our Founding Fathers understood the lesson of
human history that three things happen when Government and
politicians get involved in religion: first, the rights of
religious minorities are limited; second, politicians cannot
withstand the temptation to use religion as a means to their
own political ends; and, third, Government funding of churches,
synagogues, and mosques ultimately harms houses of worship by
undermining their independence and by creating a public
impression that they are nothing more than a bureaucratic arm
of the state. If anyone doubts that, simply look at church
attendance on the Sabbath in European nations that fund their
churches.
Perhaps this lesson of history, these three lessons are why
I would warn religious leaders and people of all faiths to be
cautious when any politician, me or you or anyone else, say,
``I am from the Government and I am here to help you.''
Mr. Chairman, as this Subcommittee and House committees
move forward on the important question of the proper role
between church and state--and I salute you for focusing on this
issue--I would respectfully make three suggestions.
First, since the issue of religious freedom is so important
to all Americans, and since our Founding Fathers debated this
question for years and then chose to make church/state
separation the first principle enunciated in the Bill of
Rights, I hope this Subcommittee will hold a number of in-depth
hearings on this issue, inviting legal, religious, and academic
scholars from differing viewpoints. To do anything less in the
House or Senate would be a disservice to the First Amendment
and the religious freedom and tolerance it has protected so
magnificently for over two centuries.
Second, this Committee's public notice said it will
examine, and I quote, ``Government discrimination against
religious expression.'' In doing so, I hope you will have
hearings on the implications of denying American citizens tax-
funded jobs solely because of their religious faith. While I
support many parts of President Bush's faith-based initiatives,
I strongly disagree with the provisions that make it legal for
hiring and firing decisions for public jobs to be based
solely--solely--on one's religious faith. No American citizen
should have to pass another citizen's private religious test to
qualify for a tax-funded public job. That type of religious
discrimination deserves this Committee's attention.
Also on the issue of discrimination, as a Christian I
revere and try to live by those Commandments every day and do
my best to teach them to our two young sons. But I hope you
will address these questions regarding the Ten Commandments. Do
we really want politicians and public officials to decide which
specific religious doctrine or beliefs should and should not be
prominently placed in public buildings, courthouses, and public
schoolhouses?
Mr. Chairman, it is a Pandora's box. Either all groups,
including religious supporters of Islamic militants, Wiccans,
several hundred of which live in my district, the Church of the
Creator, and others, be allowed to display their religious
beliefs on public buildings or perhaps on the wall behind you,
or we can follow the Chinese Government's model where
politicians have the power to decide which religious doctrine
is officially approved by the state and which is not.
Third, let's debate both sides of this vital and
complicated issue of church/state separation with respect for
those with differing viewpoints. I have great respect for Mr.
Towey of the White House Office of Faith-Based Initiatives, and
I am genuine about that respect. But I believe he went too far
last week when he defined the church/state debate as a
``cultural war.'' Groups such as the Joint Baptist Committee,
Methodists, and the American Jewish Committee are strong
defenders of church/state separation. Are they guilty of
fighting a cultural war against religious expression in the
public place? I think not.
Even if you genuinely disagree with these religious groups'
views, we should respect the fact that these people of faith
believe what they are fighting for is to protect religious
freedom from Government entanglement. I believe Mr. Towey owes
many people of faith an apology for suggesting they are
involved in perpetrating a cultural war, in effect, a religious
war.
As we fight together against Osama bin Laden and the war on
terrorism, let's leave the lexicon of war to our Army generals
in Iraq and Afghanistan and keep it out of honest debates on
religious freedom here at home. Our Nation doesn't deserve the
kind of divisiveness that could be caused by putting religious
debates in the context of being a war, cultural, religious, or
otherwise.
This Committee, in announcing and naming this hearing, did
not go so far as to describe this debate as a war, and I
appreciate that and respect you for that. However, it did use
phrases such as ``hostility to religion'' and ``hostile
religious expression.'' Perhaps there are some in this country
that are hostile to religion, but not many of the people of
great faith, of genuine faith, who will stand up in defense of
the Establishment Clause and keeping Government out of our
churches and out of our religious faith.
The debate, as I said, is not about who is on God's side
and who is not. Religious critics were dead wrong when they
attacked Mr. Madison and Mr. Jefferson two centuries ago and
accused them of being anti-religion because of their belief in
church/state separation. Let us not make that mistake again
today.
In conclusion, the Bill of Rights has never been amended in
over two centuries, especially when it comes to the first
freedom, which we all revere--religious freedom. We should move
carefully and thoughtfully before we tamper with a system of
religious freedom and tolerance that is the model and hope of
the world.
It would be ironic to have Americans preaching the
principle of church/state separation in Iraq while not
practicing it here at home. We should practice what we preach.
The American people and the issue of how to best protect
religious freedom deserve a thoughtful, reasoned debate, and I
thank the Chairman and the Members for allowing that debate to
begin today.
[The prepared statement of Representative Edwards appears
as a submission for the record.]
Chairman Cornyn. Thank you very much, Congressman Edwards.
I thank you for expressing your views, your strongly held
views, and I hope that you will get a chance to stick around
for the rest of this hearing because I think what you
described, which would be a more or less comprehensive review,
including testimony from legal scholars on this issue, would be
just exactly what it is that you asked us to do. And certainly
this hearing was not billed as asking whether people were for
God or against God. Really, rather than the establishment
concerns that you addressed, we are also looking at recognition
of religious liberty interests, and that is the primary thrust.
But let me just ask you to clarify something you mentioned.
You said--well, let me ask: You do not support the President's
faith-based initiative which would allow the use of Government
funds on a neutral basis to religious organizations that
provide social services, say, to the homeless or people who are
addicted to drugs and that sort of thing? Could you clarify
your position?
Representative Edwards. Yes, Mr. Chairman. For years,
before the President's faith-based initiative, the Federal
Government has been providing funding for religious faith-based
groups that do good social work. This has been going on for
decades. Ask the Catholic Charities about that, and Lutheran
Social Services. But they did so under three conditions that I
think are proper and constitutional requirements.
First, you couldn't send that money directly to a house of
worship. I do disagree when the Department of Housing and Urban
Development wanted to actually have direct Federal tax funding
of houses of worship, not faith-based groups but literally the
houses of worship themselves. If we bring Government dollars
into our churches, synagogues, mosques, and houses of worship,
guess what follows? Government regulations. We don't need
Government auditors and regulators running through the halls of
our houses of worship.
Secondly, the law, longstanding for decades, allowing
faith-based funding said that you can't proselytize with tax
dollars. I believe the Bush administration has gone on record
as saying it agrees with that. I shouldn't be able to take your
tax dollars and force my religion on somebody else with those
dollars.
The third provision which the President's proposal is
trying to amend is under longstanding law, you have not been
able to discriminate in job hiring using tax dollars based
solely on someone's personal religious faith. For example, if I
get a $5 million job training grant from the Federal
Government, I don't think for job training positions I should
be able to give Members of this Committee, if you applied to me
for a job, paid for by the taxpayers, give you a private
religious test and say, Mr. Cornyn, Mr. Sessions, Mr. Feingold,
you did real well on Questions 1 through 16, but I really don't
like your answer to my religious question, number 17, so I am
not going to hire you or I might fire you from this federally
funded job.
I think the Federal Government doesn't need to be in the
business of subsidizing discrimination based on religion. We
can continue faith-based work. I reject the notion we have to
discriminate against American citizens, make him or her choose
between his or her job and his or her faith simply to qualify
for a secular, federally funded job. On that point, I strongly
disagree with that particular part, an important part of the
faith-based initiatives.
Chairman Cornyn. Not to dwell too much on this, but one
last question in that regard. Just to use a hypothetical,
because it helps maybe clarify it a little bit, if you have a
church, let's say, that provides a soup kitchen to feed the
homeless and they apply on a competitive basis for some sort of
grant that the Government might supply on a neutral basis, no
proselytizing going on, just feeding hungry people, but they
insist on the right to be able to hire people who only
subscribe to that particular religious organization's faith,
you would object to that?
Representative Edwards. Yes, I would, because I don't see
why in order to be qualified to serve soup at a federally
funded, tax-funded program one must follow someone else's
religious faith. We all understand why Baptist Church can use
its own money to hire a Baptist pastor or a Jewish synagogue
can hire a Jewish rabbi. But when you are using tax dollars,
public dollars, I think to make those jobs dependent upon my
passing your private religious test or your passing my
religious test is wrong. And if that is not religious
discrimination, to force you to choose between your faith and
your job, I don't know what is.
Chairman Cornyn. Thank you very much.
Representative Edwards. Thank you, Mr. Chairman.
Chairman Cornyn. Senator Feingold?
Senator Feingold. Mr. Chairman, we often don't ask
questions of Members of Congress at the beginning, but I will
tell you, I am glad you did, Mr. Chairman, because what
Representative Edwards just demonstrated is that he is, in my
view, the preeminent force in our entire Congress for trying to
get this faith-based thing right. It was his efforts, when he
came to see us in the Senate, that brought us together to pass
a Senate version of the bill that actually does properly
balance the concerns about making sure we help our faith-based
institutions and respecting the Constitution.
So I want to thank you for that wonderful leadership that
you have shown throughout the Congress, and we know you have
very important responsibilities in the House, and we thank you
for the time that you have given us already today. I understand
you probably cannot stay for the rest of the hearing, but
obviously we will make sure you get a copy of the proceedings.
And I just want to say personally how much I appreciate your
leadership on these issues, Representative Edwards.
Representative Edwards. Senator, thank you very much, and I
am going to stay. I can't imagine anything more important, a
more important issue being debated in Congress today. And, Mr.
Chairman, I thank you.
Let me just say, too, I didn't suggest and didn't want to
even imply that you were saying this is a choice of who is for
God and who is against God. But I do think we need to be
careful, when we talk about hostility against religion in the
public place, that we not suggest that everyone who might
disagree with Judge Moore, everyone who might disagree with
some of us in this room, somehow is hostile to religion. In
1800, some attacked Mr. Jefferson for his belief in church/
state separation by saying, and I quote--his election in 1800,
``The effects would be to destroy religion, introduce
immorality, and loosen all the bonds of society.'' That was
said about Mr. Jefferson over 200 years ago simply because he
believed in the principle of church/state separation as a way
to accomplish religious liberty, which that is a goal we all
want, religious liberty. I hope we will be respectful, both
sides, frankly, as we discuss this terribly important issue.
Thank you, Mr. Chairman.
Chairman Cornyn. Thank you very much. I appreciate your
being here.
Senator Feingold. Mr. Chairman, I ask unanimous consent
that a statement from Senator Leahy, the Ranking Member of the
full Committee, be entered into the record.
Chairman Cornyn. Certainly. Without objection.
We will now proceed to panel number two, and I would like
to ask the members of the second panel to take their seats at
the witness table.
We are pleased to have a panel of citizens and
representatives of citizens' groups here with us today to
discuss their own experiences in the area of religious
expression in the public square. I will introduce the panel,
and then I will ask each of them to give an opening statement.
Nashala Hearn is a middle school student from Muskogee,
Oklahoma. She traveled here with her father, Eyvine Hearn. In
my written remarks, I briefly summarized the hostility that she
faced because of her adherence to her Muslim faith. She was
suspended for wearing her hijab to school in accordance with
the dictates of her faith. From what I have gathered, it was
precisely because of the pervasive Government hostility to
faith that we have seen in our legal culture in general that
this particular school thought it could get away with refusing
to respect this brave young girl's sincerely held religious
beliefs. And only after the Justice Department intervened did
the school finally back down and settle the case out of court
just last month.
Steven Rosenauer is here with us from Bradenton, Florida.
Steven and his wife, Carol, are members of the Jewish faith. In
May 2003, they and their son were invited to a school board
meeting so their son could be honored for his academic
achievements. The Chairman of the board began that meeting by
asking everyone to stand for a recitation of the Lord's Prayer.
After Mr. Rosenauer filed suit, the parties reached an
agreement which I believe is a reasonable resolution under our
First Amendment. Specifically, the agreement permits the board
to open its meetings with a nonsectarian invocation.
William, better known as ``Barney,'' Clark is a citizen of
Balch Springs, a wonderful small town in my home State of
Texas, just outside of Dallas. Mr. Clark is a proud World War
II vet, and he and his wife were regular attendees at the Balch
Springs Senior Center. I might add that while Barney is here,
he has got an opportunity, I hope, to visit the World War II
memorial.
Mr. Clark. I did.
Chairman Cornyn. And we are glad you had that chance while
you are here as well.
As I mentioned in my written remarks, that city-owned
senior center, that is, Balch Springs Senior Center, barred a
group of seniors, including Mr. Clark, from privately engaging
in prayer and singing religious hymns. After the intervention
of public interest lawyers from the Liberty Legal Institute
and, once again, the support of the Justice Department, the
city backed down.
J. Brent Walker is Executive Director of the Baptist Joint
Committee on Public Affairs here in Washington, D.C. He is an
ordained minister as well as an attorney. In addition, he
serves as an adjunct professor at Georgetown University Law
Center. He formerly served as the Baptist Joint Committee's
general counsel, and he has testified before Congress on a
number of occasions. We welcome him again here today.
Judge Roy S. Moore is the former Chief Justice of the
Supreme Court of Alabama. He is a graduate of the University of
Alabama School of Law and the United States Military Academy at
West Point. He has served as a captain in the Military Police
Corps of the United States Army and as a company commander in
Vietnam. He has also served as a deputy district attorney and a
circuit judge in Gadsden, Alabama, before he was elected to the
office of Chief Justice in November of 2000. He received
national attention when his defense of the placement of the Ten
Commandments in public buildings eventually led to his forced
departure from the court.
And, finally, Kelly Shackelford, like Mr. Clark, also hails
from my home State of Texas. Mr. Shackelford is the chief
counsel for the Liberty Legal Institute. In that capacity, he
represented the senior citizens involved in the controversy at
the Balch Springs Senior Center. He has also represented a
number of other citizens who faced hostility for their private
religious expressions. Mr. Shackelford formed the Liberty Legal
Institute to fight for religious liberty and protect freedoms
in the courts in Texas and nationwide. He has argued both
before the United States Supreme Court and testified before
Congress and the Texas Legislature. He is also an adjunct
professor of law at the University of Texas Law School.
I would like to thank each of you for being here today, and
I know many of you traveled a long distance to be here. And I
am sorry to tell you that while I want to hear an opening
statement, the Committee wants to hear an opening statement
from each of you, I am going to have to ask you to keep that
opening statement to about 5 minutes, and I will enforce that
with this gavel they left for me up here. Then we will have an
opportunity to ask some questions and hear from the next panel
of witnesses that follow you.
Of course, we will accept longer written remarks for the
record, and I will take this opportunity to mention that we
will leave the record open until 5:00 p.m. next Tuesday, June
the 15th, for any other Members of the Committee to submit
additional documents into the record and to ask questions in
writing of any of the parties.
At this time we will hear from the first witness, and,
Nashala, you have a microphone there in front of you, and you
just need to--
Senator Sessions. Mr. Chairman, I might say a word of
welcome to my--
Chairman Cornyn. Senator Sessions, certainly.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Judge Moore, it is great to have you
here. He is from my wife's home town of Gadsden. As Attorney
General of Alabama, I had the pleasure of working with you.
And I would just say this, Mr. Chairman: Judge Moore did
not come to the question of church/state issues lightly. He has
read virtually every document of our Founding Fathers. He has
analyzed carefully what they said, how the Constitution was
adopted, and he has developed some ideas about it. And,
unfortunately, that ran into conflict with Federal courts, and
he stood by those beliefs. He is a man of integrity and
conviction and was willing and, in fact, gave up his office--
not a rich man, a man who served his State and his country in
Vietnam. He gave up his office in adherence to what he believed
was correct. And I think we owe him great respect. There are
two aspects of our Constitution. One is the Establishment
Clause that prohibits the establishment of a religion, and the
other one protects the free exercise thereof. And I think we do
have issues here of significance to discuss, and I like the way
the discussion is going so far. I think it is important. And,
Judge Moore, we are glad you are here. I wish you were still on
the court. I am sorry things worked out the way they did. God
bless you.
Chairman Cornyn. Thank you, Senator Sessions.
Nashala, we will be glad to hear from you first, so if you
will speak into that microphone in front of you and loud enough
so we can all hear you, we would appreciate any statement you
would like to make.
STATEMENT OF NASHALA HEARN, MUSKOGEE, OKLAHOMA
Miss Hearn. Thank you, Senator Cornyn. It is an honor to be
here. And thank you, Senator Feingold, too.
My name is Nashala Hearn. I am 12 years old, and I live in
Muskogee, Oklahoma, with my father--who is here with me today--
and my mother, my brother, and my sister. I attend the Ben
Franklin Science Academy, which is a public elementary school
in my home town.
On October 1, 2003, I was suspended for 3 days from the
Muskogee Public Schools for wearing my hijab--which is a
headscarf required by my religion, Islam.
I didn't know it was going to be a problem because on
August 18, 2003, my first day of school, I explained to my
homeroom teacher that I am a Muslim and I wear a hijab, and
that I also pray between 1:00 and 1:30. She said that was fine
and that she had a room for me to pray in.
From that day forward, I received compliments from other
kids as well as school officials.
But my problems started on September 11, 2003. I was in the
breakfast line when my teacher came up to me and said that
after I was done eating to call my parents because my hijab
looks like a bandanna or a handkerchief and that I wasn't
allowed to wear it.
So after I was finished, I went to the office.
Ms. Walker had already called my parents. When my parents
got there, they were very upset. The principal said it was a
bandanna and I had to change it or go home.
And this is how the battle of being obedient to God by
wearing my hijab to be modest in Islam versus the school dress
code policy began.
I continued to wear my hijab because it would be against my
religion not to.
So like I said before, I was suspended from school on
October 1st for 3 days. When I came back to school on October
7th, I was suspended again. This time it was for 5 days.
I was able to go back to school after that until the
problem was fixed.
This experience has been very stressful, very depressing,
and humiliating.
By the grace of God and thanks to the DOJ, the Rutherford
Institute, and my lawyer, Ms. Farish, the problem no longer
exists in the Muskogee public schools. The school agreed to let
me and other kids wear our religious clothing.
Thank you for listening and thank you very much for having
me here today. Praise to Allah.
[The prepared statement of Miss Hearn appears as a
submission for the record.]
Chairman Cornyn. Thank you, Nashala, for your statement,
and we appreciate your courage and your presence here today,
and also your father for making it possible for you to be here.
Mr. Rosenauer, we would be glad to hear any opening
statement you would care to make, sir.
STATEMENT OF STEVEN ROSENAUER, BRADENTON, FLORIDA
Mr. Rosenauer. Good afternoon. My name is Steven Rosenauer,
and I live with my wife and two children in Bradenton, Florida.
At the request of this Committee, I am here to testify about
the important issue of religious liberty in America as it has
recently affected my family.
Both my children attend public school in Manatee County,
where we live. Last spring, my wife and I were very proud when
we were invited to the school board meeting on May 5th, along
with my son Joshua, so that the board could recognize and honor
him for winning first place in several events at the Technology
Student Association State Competition. Several other students
were at the meeting so that they could also be recognized for
similar achievements.
As my wife and son and I sat in the audience, the school
board's Chair called the meeting to order. Then, to my
surprise, she told everyone in the audience to ``please stand
for the Lord's Prayer'' and the Pledge of Allegiance. The board
members then stood, bowed their heads, and led most of the
audience in reciting the Lord's Prayer, a well-known Christian
prayer considered by most Christians to be the prayer taught by
Jesus to his disciples. My family is Jewish, and we were
shocked and felt uncomfortable and excluded by these actions of
our community's elected officials at an official school board
meeting. On our way home, my son, my wife, and I were all
upset. As I explained in a letter I wrote that same night to
the school board Chair, ``I was very offended when you had
everyone present rise for a ceremony that I consider against my
religion.''
For the next several months, board members continued to
lead the Lord's Prayer at board meetings, despite my letter as
well as letters from People for the American Way Foundation,
which had agreed to help me and my family. Some community
members made disturbing statements, such as one urging the
board to ``stand on Jesus Christ'' and not to bend to ``foreign
gods.'' Some board members strongly defended their actions as
permissible religious expressions of their faith. One went so
far as to state that the Supreme Court isn't ``the eternal
supreme court,'' and that perhaps he would have to be taken out
in handcuffs 1 day. But even Pat Robertson's American Center
for Law and Justice recognized that the board's practice was
unconstitutional and that the only type of invocation that can
possibly be legal would have to be truly nonsectarian and
clearly voluntary. As the Sarasota Herald Tribune explained,
``Manatee is home to a diverse mix of religious faiths. It's
chauvinistic for the board to impose a distinctly Christian
prayer on everyone attending its meetings. Doing so sends a
message, intentional or not, that citizens who don't share the
board's faith are viewed in a lesser light...Out of respect for
the community's religious diversity--not to mention the
Constitution--the board should drop the prayer and end this
controversy.''
I became hopeful in August when the board adopted
guidelines for its meetings to begin with nonsectarian
invocations. But the board repeatedly violated those guidelines
as ministers invited by the board led public, sectarian prayer,
including praying in the name of Jesus, despite repeated
letters from us. In February, after trying for more than 6
months to resolve the issue, we, with the pro bono help of
People for the American Way and the law firm of Hunton and
Williams, filed suit in Federal court.
For a while--excuse me.
Chairman Cornyn. It is all right. Take your time.
Mr. Rosenauer. For a while, things got even worse. We
received anonymous threatening phone calls, like the one
telling us we should move out of the country if ``we didn't
like the way they do things here,'' and the call that
threatened, ``We know where you Jews live and if you don't drop
the lawsuit, there will be trouble.'' During the Jewish holiday
of Passover in April, someone vandalized our home by throwing
red oil-based paint on the front door and garage door of our
house and our truck outside. It reminded us all too chillingly
of what has happened to Jews and other religious minorities in
other countries where they don't have the religious freedom and
separation of church and state that are the foundation of our
great country. My family believes that some board members and
others in the community helped foster the atmosphere where
these types of actions occurred when they made public
statements of intolerance and their own disdain for the courts.
Both newspapers in our area have strongly supported our
position, and I am pleased to report that just last week, the
court approved a settlement that we reached with the board,
which includes an enforceable consent decree calling for the
board to make sure that only truly nonsectarian prayer can be
used to open board meetings.
We are hopeful that this situation is now behind us. But it
has reminded us of the importance of true religious liberty in
America and the dangerous consequences of allowing improper
Government promotion of religion and eroding the separation of
church and state. The Constitution protects the religious
liberty of all Americans, not just those of one faith. My
family's situation has highlighted the importance of our
Federal courts in protecting that fundamental principle.
Thank you very much.
[The prepared statement of Mr. Rosenauer appears as a
submission for the record.]
Chairman Cornyn. Thank you very much, Mr. Rosenauer, for
being here and for your testimony and sharing that story with
us. I know it wasn't easy, but it is important that we hear it.
Mr. Clark, we would be glad to hear any opening statement
that you would care to make.
STATEMENT OF WILLIAM ``BARNEY'' CLARK, BALCH SPRINGS, TEXAS
Mr. Clark. Chairman Cornyn, Ranking Member Mr. Feingold,
and Members of the Committee, thank you for the privilege you
gave me to come and testify before you today.
Chairman Cornyn. Mr. Clark, you may want to pull that
microphone just a little bit closer to you so we can make sure
not to miss a word.
Mr. Clark. My name is Barney Clark. I am a member of the
Balch Springs Senior Center, and my wife and I have been
members for 10 years. We started our 11th year the 1st of May.
it has always been a pleasure, a fun place to go, people
your own age, things to do together. And it has really been a
pleasure. But in the last 6 to 8 months, it has all changed.
We have been singing religious songs, listening to
inspirational messages, and praying over food, they tell me,
for 20 years. I know this went on for 10 years that I have been
there. But every Monday, Brother Barton comes in and gives an
inspirational message. He doesn't preach a sermon. He gives an
inspirational message right out of the Bible. He has no altar
call. He doesn't take no offering. He prays for the sick. He
visits them in the hospital. He has even buried two or three
people that passed on. He is a wonderful man.
Back in August 2003, after we had our gospel singing and
inspiration, Ms. Deborah, the director, came and told us that
we cannot have no more gospel songs, we cannot stand up and
pray over our food, we can't have Brother Barton to come in and
preach no more, bring inspiration. This message came from the
city manager and was passed down to her by the city attorney.
This was the first time that we was told that we couldn't do
this that had been going on for 20 years.
I don't mind telling you, we was in limbo for 2 or 3 days
around that. We didn't know what we was going to do, nothing.
We prayed about it. We turned it over to the Lord, and we
prayed for the people that was bringing it on us.
Lo and behold, we got a call out of the clear blue sky from
the Liberty Legal Institute. They said, ``They are treating you
wrong. If you want a representative, we will represent you, no
cost to you.'' That was our first prayer that was answered. If
you wanted to see a bunch of smiling faces, you should have
seen those people over there that day. They said, ``It is not
right the way they are treating you, it is against your
religious freedom, your freedom of speech, and it is just not
right.'' They said, ``If you want us to represent you, we will
be out there Monday to talk to you.''
Monday they came out. We got 16 people. We had 40 or 50
people there, but some reason or the other, they were reluctant
about standing up, standing up for their rights. But we got 16
up, and they had television people out, the news people, and
they gave us wonderful coverage. It seemed like every one of
them--in fact, the mayor of Balch Springs said, ``I cannot
believe the publicity this is getting,'' just this little bunch
of seniors. But they rallied from everywhere. I got calls from
Canada. I got calls from California. There was even a call that
come in from England, from Florida, and all over Texas, all
saying, ``You are doing good. We are praying for you. Keep up
the good work.''
The people signed up, the petition for the lawyers to
represent us. They said, ``We will go to court if we have to.''
Well, the lawyers sent a demand letter to the center, sent it
to the council. They refused to answer it. They wouldn't talk
to us. My wife personally called each councilman to come over
and talk it over. They wouldn't come talk with us. Two
councilmen come over and talked to us and said they was for us,
they was favorable. They said, ``It is not right, but there is
nothing we can do because every time we speak up, these other
four councilmen votes us down.''
Well, there we go again. In the meantime, Mr. Normal
Moorhead, the director of the Dallas Area Agency of Aging,
stated that our food program would be in jeopardy if we won. I
said, ``You win and you lose your food? That don't sound
right.'' Well, Mr. Sasser from the legal institution, he got a
chuckle out of it, and he said, ``They can't do that.'' He
said, ``Don't worry about it.'' Well, we didn't. We went on.
In the meantime, the Justice Department come down, and they
was nosing around, you might say, talking and asking questions.
And the insurance company from Balch Springs got in it, they
had become involved. Well, the insurance man seemed like a
pretty decent fellow, and he demanded--I don't know whether he
demanded, but they got him to go to mediation. So we went to
mediation. We talked back and forth. Of course, they was in one
room, we was in another. Then lunchtime came. They come and
took orders for sandwiches. We all ate our sandwiches. The
mediator come in, he said, ``Gentlemen, I don't know what to
tell you. They walked out.'' We said, ``What do you mean they
walked out? They called the meeting.'' He said, ``They walked
out grumbling, something about the wrong sandwiches.''
Well, I had the wrong sandwich. My name was on it. Whoever
took the order got them mixed up. It was a good sandwich. I ate
it.
[Laughter.]
Mr. Clark. But they refused to eat theirs and walked out of
the meeting.
The next thing, when the Justice Department really got into
details on it, they threw in the towel. They said, ``Give
seniors back their rights.'' All right. Everything, the
seniors, we could sing, we could pray, preach, whatever we want
to do, and religious, we can, except Mrs. McDaniel, our
director, came from Mr. Moorhead's office--I can't say he give
the order, but it came from his office. She can have nothing to
do with religion whatsoever. The preacher is a personal friend
of hers. He married her and her husband there at the center. If
he comes into the building, she has to leave and go into her
office. He can go in there and talk to her, but she can't talk
to him in the main building.
Now, something is wrong when somebody can tell you if you
take this job, you give up your religion, you can't have it.
Now, there is something wrong with that. But it happened.
Now, in the meantime, we got another letter from Mr.
Moorhead that said our food program--we are not happy with what
is going on, our food program will be in jeopardy again.
Mr. Sasser called me and said, ``We will have a press
meeting Monday''--I believe it was a Monday evening at 1
o'clock, said, ``Get all the people together.'' We assembled--
well, we was all at the center that day. About, I would say,
11:00, 11:30, he called me. He had been over talking to Mr.
Moorhead. He said, ``Forget about it.'' He said, ``He's throwed
in the towel. He's decided that you will get your food.'' Of
course, he assured us all along that we would. So that took
care of that.
But would you believe, Senator, that the mayor come over
and told me personally--and other people was there--that I
could go over in the corner if I wanted to and pray. He
couldn't tell me I could or I couldn't. I told him, ``My Bible
says, `Profess me publicly.' I will not go in the corner and
pray like a criminal, and if you want to carry me to jail,
carry me to jail.'' That is so it be. And we, the people
involved in the lawsuit, got out in the center of the room and
held hands and prayed for our food.
In closing, I want to say that I am a veteran from World
War II. I put my life on the line for what I believe in. And if
Mr. Truman hadn't dropped the bomb when he did, I believe that
I would have paid the price, the supreme price, for what I
believe in. And I just do not believe that is right for anybody
to come up and tell you that you can't pray, preach, or listen
to religion.
And, in closing, I would like to say to each one of you
all, the Constitution guarantees each American the right for
peaceful assembly. Now, I ask you, what could be more peaceful
than a bunch of old folks sitting around singing good old
gospel songs that this country was founded on?
[Laughter.]
Mr. Clark. And, with that, I thank you from the bottom of
my heart for letting me come up here and state my case.
[The prepared statement of Mr. Clark appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Clark. We appreciate your
testimony.
Mr. Walker, we would be delighted to hear from you.
STATEMENT OF J. BRENT WALKER, EXECUTIVE DIRECTOR, BAPTIST JOINT
COMMITTEE ON PUBLIC AFFAIRS, WASHINGTON, D.C.
Rev. Walker. Thank you, Mr. Chairman and Members of the
Subcommittee. I don't thank you, however, for putting me after
Mr. Clark on the dais.
[Laughter.]
Rev. Walker. For 68 years, the Baptist Joint Committee has
pursued what I think is a well-balanced, sensibly centrist
approach to church/state issues. We take seriously both
religion clauses in the First Amendment as essential guarantors
of our God-given religious liberty. It is, indeed, our ``first
freedom.''
The wise architects of our republic fashioned twin
constitutional pillars--no establishment and free exercise--and
they placed them first in the Bill of Rights to protect what
many of them believed to be God-given rights and to buttress
the wall of separation that is so critical to ensuring our
religious liberty.
The Establishment Clause is designed to keep Government
from promoting or helping religion. The Free Exercise Clause is
intended to prevent Government from discouraging or hurting
religion. And the two, taken together, call for a neutrality on
the part of Government and how it relates to religion.
Government should accommodate religion but without advancing
it, protect religion but without promoting it, lift burdens on
the exercise of religion without extending religion an
impermissible benefit.
The requirement of keeping church and state separate,
however, does not call for a divorce of religion from politics.
The metaphorical wall of separation between church and state
does not block metaphysical assumptions from playing a role in
public life. Religious people have as much right as anybody
else to seek to vend their convictions in the marketplace of
ideas and, within some limits, to allow their religious ethics
to influence public policy by speaking out and organizing
politically and even running for office.
While religious expression by public officials is
ordinarily permitted, there are, I think, constitutional
limits. With all respect to my co-witness on this panel, the
Ten Commandments case out of Alabama illustrates a Government
official expressing his own religious views that clearly, in my
mind, crossed the constitutional boundary. Far from a generic
recognition of a supreme being, Hon. Chief Justice, one,
singled out one favored religious tradition; two, he chose the
preferred Scripture passage; and, three, he displayed it in a
way that created nothing less than a religious shrine. And
while so doing, he made theological judgments throughout. Which
Commandments, Deuteronomy 5 or Exodus 20? Is it the English Old
Testament or the Hebrew Bible or maybe the Greek Septuagint? Is
it a Catholic or Protestant one? Which translation--King James,
New International, Revised Standard? They all differ in form
and style and theological nuance. These are fundamentally
religious decisions that Government officials are ill-suited to
make.
We must always keep in mind the difference between
Government speech endorsing religion, which the Establishment
Clause prohibits, and private religious speech, which the
Constitution protects. Religious speech by private citizens,
even in public places, is not forbidden. It is protected and
commonly practiced. And there are lots of ways in which the Ten
Commandments, for example, can be expressed in public without
the helping hand of Government. They can be posted in front of
every church and every synagogue in the land, in full public
view. They can be displayed even on public property if that
property is a free speech forum. One can hold up a sign, Exodus
20 or Deuteronomy 5, instead of or in addition to John 3:16 in
the end zones of televised football games. And taking a lesson
from the prophet Jeremiah, we can write the Commandments o our
hearts instead of on stone, thereby providing a living witness
to those teachings.
In sum, the question is not whether the Ten Commandments
embodied the right teachings. The question, rather, is: Who is
the right teacher--politicians or parents, public officials of
religious leaders, judges or families?
As a minister, I can think of little better than for
everyone to read and obey the Ten Commandments, but as a
lawyer, I can think of little worse than for Government
officials to tell us to do it.
Finally, even public officials are not prohibited from
considering the Ten Commandments in the proper context. For
example, schools may teach about the Ten Commandments in Bible
as literature courses. Schools can instruct students in the
ethical precepts embodied in the Commandments in a proper
character education course. And the Commandments can be
depicted as an integral part of a historic educational exhibit,
such as on the frieze across the street in the United States
Supreme Court courtroom.
We must catch the vision of our Nation's Founders:
religious freedom for all, unaided and unhindered by
Government. We must commit ourselves to protecting religious
expression in public places without allowing Government
officials to promote religion or to pick and choose among
religions.
Two Founders, in conclusion, I want to refer this
Committee's attention to. Two Founders who succinctly expressed
this aspiration in a way that inspires me every day: Daniel
Carroll, a Catholic from Maryland, captured the pith of the
free exercise principle when he said, ``The rights of
conscience are of particular delicacy and will little bear even
the gentlest touch of Government's hand.'' And on the other
side of the Potomac, Virginia Baptist John Leland expressed the
rationale for the no establishment principle when he exclaimed,
``The fondness of magistrates to foster Christianity has done
it more harm than all the persecutions ever did.''
The stirring words of Carroll and Leland call for
Government neutrality in religion and highlight the importance
of protecting the rights of conscience of every human being,
and they posit, in my judgment, a well-balanced view of a free
church in a free state.
Thank you.
[The prepared statement of Rev. Walker appears as a
submission for the record.]
Chairman Cornyn. Thank you very much, Mr. Walker, for being
here and for that statement.
Judge Moore, we would be delighted to hear from you now.
STATEMENT OF HON. ROY S. MOORE, FORMER CHIEF JUSTICE, SUPREME
COURT OF ALABAMA, BIRMINGHAM, ALABAMA
Justice Moore. Thank you, Senator Corny and Senator
Feingold. I am glad to be here and argue before this Committee
my position. I thank you for the opportunity to appear, and I
want to especially appreciate Senator Sessions and Senator
Shelby, two of the finest Senators I think Alabama has ever
had, and we are very proud in our State of these Senators.
I realize that my testimony is long, very factual, and I
request that it be entered into the record.
Chairman Cornyn. Without objection.
Justice Moore. I want to first agree with Representative
Edwards on one thing, at least. It is not between those who
believe in God and those who do not believe in God. It is
between those who understand the First Amendment and those who
do not. The issue in all these is the acknowledgment of that
God upon which this Nation was founded. The issue in my case--
and disagreeing with Mr. Walker since he knows so much about my
case--was not the Ten Commandments. It was about the
acknowledgment of God.
The court judge in that case said this: ``The issue is: Can
the state acknowledge God?'' He said, ``I think you said it.
And I think perhaps in many ways I doubt the plaintiffs will
disagree with you on that.'' You see, we have got to understand
what the issue is. I have heard the word ``religious'' or
``religion'' used over a thousand times here today. And who can
define that word? Well, the Supreme Court did define that word
in 1878 and 1890 and attached the true definition to the case
of Everson v. Board of Education in 1947. ``Religion'' was used
over 150 times in Judge Myron Thompson's opinion. Do you think
he could define the word? He said that the court lacks the
expertise to formulate its own definition of religion for First
Amendment purposes. In another section, he said, ``Indeed, it
is unwise and even dangerous to put forth as a matter of law
one definition of religion for First Amendment purposes.''
You see, when you can't define a word as a judge, you can't
interpret the law. The First Amendment says, ``Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.'' That part of that
First Amendment was designed to allow the States and to allow
the people of this country to acknowledge God according to the
dictates of their conscience. As far back as 1776, we were
declared to be one Nation under God in the Declaration of
Independence because it was the laws of nature and nature's God
who gave us that right.
Now, many take the secular position that they put
themselves into being neutral toward religion. Indeed, God is
the only one neutral to religion because He gave us that
freedom of conscience to believe as we must. Therefore, it is
actually very imperative that we recognize the issue in this
case, and the issue in the case is the Government's
interference with the right of the people of these States to
acknowledge God. Every State in this Union acknowledges God in
its Constitution. I have been speaking--I have spoken to about
25 States since November. Every State acknowledges God. If you
can give me not that doesn't, I will take it.
I heard earlier that God was meant to be separated from our
Constitution. That certainly wasn't the case. James Madison,
the chief architect of the Constitution, in Federalist Paper
No. 37, on January 11, 1788, said, ``It is impossible for the
man of pious reflection to perceiving it, a finger of that
almighty hand which has been so frequently and singularly
extended our relief in the critical stages of the Revolution.''
In Federalist 37, on January 23, 1788, in addressing Article
VII of the Constitution, he said, ``Some may wonder why nine
States can adopt the Constitution when 13 States have already
adopted the Articles of Confederation.'' He said, ``The first
question can be answered at once, by recurring to the absolute
necessity of the case, to the great principle of self-
preservation, to the transcendent law of nature and of nature's
God which declares that the safety and happiness of society are
the objects to which all political institutions aim and to
which all such institutions must be sacrificed.''
We have simply confused today, Senator, the acknowledgment
of God with religion. In 1954, when the legislature of this
country, the Congress, put ``under God'' in the Pledge, they
were not confused. They said this: ``It should be pointed out
that the adoption of this legislation in no way runs contrary
to the vision of the First Amendment to the United States
Constitution. This is not an act establishing a religion or one
interfering with the free exercise of religion. A distinction
must be made between the existence of religion as an
institution and the belief in the sovereignty of God.''
They also said one other thing that is pertinent in this
hearing. They said, ``At this moment of our history, the
principles underlying our American Government and American way
of life are under attack by a system whose philosophy is at
direct odds with our own. Our American Government is founded on
the concept of the individuality and the dignity of the human
being. Underlying this concept is the belief that the human
person is important because he was created by God and endowed
by him with certain inalienable rights which no civil authority
can usurp. The inclusion of God in our Pledge, therefore, would
further acknowledge the dependence of our people and our
Government upon the moral directions of the Creator.''
For those who would wonder what God this is, it was the God
of the Holy Scriptures. It was the God referenced in Benjamin
Franklin's address before the Constitutional Convention. I
happen to have that address. I happen to have it in the--right
out of the Congressional Records of the Senate in which they
discussed--I am sorry, the House of Representatives, in which
they discussed his address. He used these words. He said, ``We
have not hitherto thought of humbly applying to the Father of
Lights to illuminate our understanding.'' ``The Father of
Lights'' comes right out of Matthew. He referred to, ``A
sparrow cannot fall to the ground without His notice''--right
out of Matthew--I'm sorry. ``Father of Lights'' comes out of
James. ``A sparrow cannot fall to the ground,'' out of Matthew.
``Except the Lord build a house, they labor in vain that built
it,'' under Proverbs. And the builders of Babel under another
section of Scripture. He certainly knew which God they
worshipped.
But it is important for everybody in this room to realize
that does not discriminate against anybody else's faith. You
see, that God gave us freedom of conscience, the freedom to
believe as we wish. It would allow such things as wearing
scarfs. It would allow such things as prayers, with or without
Jesus' name. It is that God who gives us the freedom to worship
God according to the dictates of conscience.
Joseph Story in his commentaries on the Constitution in
1833 said, ``The rights of conscience are indeed beyond the
reach of human power. They are given by God and cannot be
encroached upon by any human authority without a criminal
disobedience of precepts of natural as well as of revealed
religion.''
Let me just quote one thing from President Ronald Reagan,
spoken to the Alabama Legislature on March 15, 1982: ``Standing
up for America also means standing up for the God Who has so
blessed our land. I believe this country hungers for a
spiritual revival. I believe it longs to see traditional values
reflected in public policy again. To those who cite the First
Amendment as reason for excluding God from more and more of our
institutions and everyday life, may I just say: The First
Amendment of the Constitution was not written to protect the
people of this country from religious values; it was written to
protect religious values from government tyranny.''
That statement is as true today as it was then.
I believe in separation of church and state quite strongly,
but separation of church and state does not separate this
country, it never has and never will, from God. The First
Amendment to the United States Constitution's only purpose was
to allow us to worship God. That was the first act, very act of
the Congress that formed the words. They said that--they
appointed a Committee to wait upon the President, directed the
Committee to wait upon the President and request that he
recommend to the people a day of public thanksgiving and prayer
to be observed by acknowledging with grateful hearts the many
and singular favors of Almighty God, especially by affording
them an opportunity peaceably to establish a constitutional
government for safety and happiness. Eight days later, George
Washington did exactly that in his first Presidential
Proclamation, when he said, ``Whereas, it is the duty of all
nations to acknowledge the providence of Almighty God, to obey
His will, to be grateful for His benefits, and humbly to
implore his protection and favor.''
Just like in the court proceeding, the first thing this
Committee needs to do, Senator, is to clarify the issue. Can we
acknowledge God? Certainly we can. That is all that was done in
Alabama. That is all that the court said was done. But he said
because we acknowledge the Judeo-Christian God, we could not do
it. Right now in Alabama sits a display of the Ten
Commandments, written out, put there by eight Justices, because
they did it the, quote-unquote, ``right way.'' What is the
right way? According to the ACLU, Southern Poverty Law Center,
and Americans United for Separation of Church and State, and
the courts, it is to surround it with historical artifacts so
that it reduces to past tense, so that God is no longer
relevant.
My monument sit in a closet because it says--it is an
acknowledgment of that sovereignty of God upon which this
Nation was founded. The difference between those two monuments
is one that caused me to lose my job. The other is for
political purposes and does not acknowledge God.
I thank you for the opportunity to speak today, sir.
[The prepared statement of Justice Moore appears as a
submission for the record.]
Chairman Cornyn. Thank you, Judge Moore.
Mr. Shackelford, we would be happy to hear your opening
statement.
STATEMENT OF KELLY SHACKELFORD, CHIEF COUNSEL, LIBERTY LEGAL
INSTITUTE, PLANO, TEXAS
Mr. Shackelford. Thank you, Chairman Cornyn, Ranking Member
Feingold, Senator Sessions. First, I just want to thank you for
the privilege, the opportunity to be requested to speak today
on the subject of the current hostilities to religious freedom.
I respectfully request that the entirety of my personal
statement be made part of the record of today's hearing.
Chairman Cornyn. Without objection.
Mr. Shackelford. Unfortunately, we don't have to look to
Canada and their recent passage of a hate speech law, which
actually makes it a crime now to read certain sections of the
Bible aloud, in order to find outrageous violations of
religious freedom. We, unfortunately, have our own problems
here in the U.S.
While I have been an adjunct professor of law teaching
religious liberties at the University of Texas School of Law
since 1994, I speak to you today as chief counsel of the
Liberty Legal Institute. I have spent the past 15 years in
specifically religious freedoms constitutional cases, and I
have overseen hundreds of these types of cases. And let me
assure you, the hostility that we are talking about is very
real. We see it every day. There are simply those in this
country who think that they are actually doing the country a
service by removing references to our religious history and
heritage from public and reducing and limiting, restricting
religious expression in the public arena. And, unfortunately,
these people are having great success.
Ten Commandments displays are being removed by court orders
across the country. ``Under God'' is being challenged. In fact,
they wanted the Ninth Circuit in our Pledge. Cities are having
to remove all their religious symbols from their city seals. As
you mentioned, just recently the City of Los Angeles, I think,
has agreed to do that now after pressure. Churches and
synagogues are being banned from entire communities, and
children are being told in case after case after case that
their religious expression is prohibited in school.
The atmosphere and hostility is out there.
In the short time I have I just want to share a few of our
cases to provide an example of what is going on out there. You
have already heard from one of our clients, Barney Clark.
Actually, it is probably the most enjoyable clients I have ever
had, senior citizens there from Balch Springs. In Balch Springs
they were told they could no longer pray over their meal, they
could no longer sing gospel songs. They could no longer have
one of their own members talk about the Bible at the senior
center.
We sent a letter. We tried to resolve this amicably, but
these were not uninformed people. Their attorney, after looking
at the law, decided the this could not be allowed. A government
agency sent them a letter stating that if this continued, their
funds for their meals would be taken away. So the idea that
these are little isolated incidents, in addition to the
situations we see day after day after day, are borne out by the
fact that even attorneys who you would think, being through law
school, could figure this thing out, are confused over and over
again. They were shocked. Only after an extensive lawsuit over
months of time, and only after over $80,000 fees were donated
for these seniors, were they able to rectify this situation,
and in part, it was also because the United States Department
of Justice intervened.
In Barrow v. Greenville, ISD, another one of our current
cases, we have a teacher, Karen Barrow, who waited 9 years to
be an assistant principal. When a job opened up she was told by
the superintendent that she could only have the job if she
agreed to remove her children from the private Christian school
where they attended. When she said she could not do that, she
was informed that she had no future in the district. In the
depositions taken in this lawsuit, superintendent after
superintendent testified that this is what superintendents
across the State did as a matter of customary policy.
Again, this lawsuit, after over a million dollars in
attorneys fees having been donated on behalf of this one
teacher, and 6 years of litigation, this lawsuit is still
ongoing, and they still have not backed down.
In H.E.B. Ministries case, Tyndale Seminary was find
$173,000 for daring to issue 34 diplomas in the Bible without
getting government approval first of their curriculum and their
professors. Again, all the lower courts have ruled against
Tyndale Seminary to this point. We are at the last stage of
this litigation now and are hopeful that one of these courts
will come to its senses.
Small African-American and Hispanic seminaries are being
shut down across the State. One of our clients, the Institute
for Teaching God's Word Seminary was shut down, and all they
did was train black pastors in the Bible, and they were told
that they could not do that until they first got State
approval.
The most disturbing cases to me are the cases and the
actions taken against children. Jonathan Morgan, a 9-year-old
student in Texas just wanted to give a gift to his fellow
students at the Christmas party like everybody else was doing.
School officials, however, stopped him at the door of the
classroom because his candy cane had a religious message
attached to it. Again, here we are 7, 8 months later, the
school officials and the school attorneys have refused to back
down. They stand on their position, and they are forcing
Jonathan and his family to actually prepare for a lawsuit in
order to protect his right to hand out a candy cane to his
friends at school.
A Hispanic kindergartner--I will refer to her as Little
Doe--saw that other children were bringing Pokemon and other
cards to her kindergarten class. They are a poor family, but
she had some cards from her Catholic Church. She brought those
to school and passed those out. However, the response was
incredible. The teacher not only told her to stop, but went in
to all the other classes with all the other fellow
kindergartners who had received these, in the front of class
asked them to come forward and confiscated the cards in front
of the class. She was then informed that she was never to bring
religious articles to school again. Even after trying to inform
her that this was wrong, to this day she is scared to bring
anything or say anything religious at her school.
Another one of our clients that we are preparing a lawsuit
for right now, an elementary school girl, was told she could
give pencils to her friends at school but not ones with Jesus
on them. She asked her mother, crying, and I quote, ``Why does
the school hate Jesus, Mommy?''
The point is these little kids get the message. Their
religion is treated the same as a curse word at school. They
are taught at an early age, keep your religion to yourself; it
is dirty. And that is wrong.
Many are aware of the Doe v. Santa Fe case in which I know,
Mr. Chairman, you were involved, in Texas, the football game
prayer case. Few are aware of the court order below, where the
judge told the students that they could not at the graduation
pray in Jesus' name, and that Federal martials would be in
attendance, and that any student who violated that order would
be taken to the Galveston County Jail for up to 6 months
incarceration. He then followed, and I quote, ``Anybody who
violates these orders, no kidding, is going to wish that he or
she had died as a child when this Court gets through with it.''
This is the atmosphere we have created in the schools for our
children.
Last I want to mention the Ten Commandments case in which
we were involved, Van Orden v. Perry, which involves the Texas
Ten Commandments. We pointed out in that case that the attempt
to remove the Ten Commandments there was an open attempt at
religious bigotry. There are 17 monuments around the capital
lawn at the Texas capital, yet they have focused on the one
with religious content. Our question is: why is it that we
should censor only our religious history? Unfortunately, the
establishment clause is now a weapon to be used to eradicate
ideas and expression which one disagrees with by simply
labeling them as religious. It is an instrument, unfortunately,
as the Ten Commandments case shows, that is now used to rewrite
history, particularly to erase any religious references in our
history such as the Ten Commandments as almost anyone agrees is
a basic foundation of our system of laws.
The hostility is real. There is a pervasive atmosphere out
there that has been created to ban or stop religion in public.
The separation of religion and State fundamentalists and
activist courts are succeeding instilling confusion and
creating an atmosphere of hostility, one where I would say that
most government officials now even feel they have some sort of
duty of religious cleansing in public. We are moving quickly
towards the naked public square, where religion is being
treated as pornography when expressed in public, and the
hostility has spread quickly from across our public schools to
all areas of public life including even our public displays.
If we do not begin to speak up and act now, we are going to
lose the great religious heritage and history upon which this
country was founded, and I think that would be a terrible
mistake.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Shackelford appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Shackelford.
We will now have a round of questions, and I will start.
First of all, I want to say, Nashala, to you and Mr.
Rosenauer and Mr. Clark, and also to you, Judge Moore. I know
that each of you are here because you have endured a challenge
to your right to express or protect your rights under the First
Amendment of the Constitution, and we certainly respect your
fervent belief and your efforts to protect your rights. One of
my biggest concerns is that people who do not have the money or
do not have a lawyer or who do not have the time, or who just
simply do not want to put up with the ridicule that you might
suffer in order to protect your rights under the First
Amendment, just simply give up. Indeed, one of the problems, we
will hear from the next panel, is that the law is not clear. It
is contradictory in many respects, and so individuals,
organizations, governments, simply default to a religion-free,
faith-free zone because they are concerned about being sued or
other consequences that are obviously. It is because of the
courage of people like you, Nashala, Mr. Rosenauer, Mr. Clark,
and Judge Moore, that these issues are brought to our
attention, and I think they are worth of discussion. They
should not be swept under the rug for many of the reasons that
you have already mentioned.
But in listening to the testimony here today, I actually
think that there is some consensus at least on what it is that
we are concerned about. On the one hand, the First Amendment
protects religious liberty, free exercise of religion, but also
it prohibits the establishment of religion, the government
officials, in Mr. Rosenauer's case, dictating what kind of
specific religious prayer that might be offered.
But. Mr. Rosenauer, in your case, you believe you were able
to reach a satisfactory resolution by a consent agreement that
provide for a nonsectarian prayer; is that right, sir?
Mr. Rosenauer. Yes. We have entered into a consent
agreement, and the Judge entered it in the court about a week
and a half ago, and in the consent agreement it constrains the
school board members or anyone acting on their behalf basically
from preaching, proselytizing or otherwise advancing any
specific religion either during the invocation or during the
school board meeting. It does not enjoin them from having an
invocation. The invocation or sample invocation, I should say,
that was attached to it as an example, does mention God in it.
It is not against religion, our suit, against this school, was
not against religion, it was against a government endorsing a
religion.
Chairman Cornyn. And you were satisfied with that outcome?
Mr. Rosenauer. We settled it, yes.
Chairman Cornyn. Sometimes the settlements, that means that
neither side is entirely satisfied.
Mr. Rosenauer. I think that is probably the best way of
putting it. If the school board actually does follow through
with the settlement, then we will be very satisfied.
Chairman Cornyn. Thank you very much.
Mr. Clark, what would have happened if you and the other
seniors there at the community center, the senior center, had
just simply caved in when they said you could not sing or pray?
Mr. Clark. That is what Mr. Moorhead put it in his letter.
He said, I believe the site council, which is the ruling
majority there. We meet every month, decide the issues of the
center. He said, I believe the site council can resolve this
issue. The only way we could have resolved it was just knuckle
under to it, to their demands, and we refused. We refused to
knuckle under. Probably the center would probably have shut
down because half the people would have quit going.
Chairman Cornyn. I know you cannot say for sure, and none
of us can for sure, but do you suspect that there are other
instances that may be occurring across the country where people
do not have the courage to stand up and they do in fact knuckle
under?
Mr. Clark. I am real sure of it, and that is one of my
purposes here. I hope that I can encourage somebody to have
enough backbone to stand up. As Christians we have been taught
to turn the other cheek. There comes a time you run out of
cheeks and you have to stand up and be counted.
[Laughter.]
Chairman Cornyn. Mr. Walker, let me ask--and here again I
think there may be more we share in common here in this hearing
than divides us, but let me just ask you a question and ask you
to comment on it. I gather the Baptist Joint Committee
supported the Equal Access Act in 1984, which simply says that
public secondary schools may not discriminate against religious
groups in providing access to public school buildings for
meetings and events during off hours. And as the Supreme Court
told us in the recent Good News Club decision, to do otherwise
would violate the free speech clause of the First Amendment.
But what amazes me, is you look back in 1984, and that
actually, that legislation was somewhat controversial at the
time.
But am I correct that you and the organization you
represent supports the Equal Access Act and agree that public
secondary schools may not discriminate against religious groups
in providing access to public school buildings for meetings and
events during off hours?
Rev. Walker. We certainly do, and we support it today. We
were involved in the debate in the Congress along with then
Senator Mark Hatfield and others. We thought that was a good
way to do religion in the public schools that involved taking
religion seriously and accommodating the needs of students to
practice their religion and to meet and discuss their religious
views, while at the same time keeping government from getting
involved in promoting or advancing religion or governing
religious exercises. So, yes, we very much supported it. We
defended it in the Supreme Court in the Mergens case, and we
continue to work out the details from that very important piece
of legislation.
And we filed a brief in the Good News case too. It was not
an Equal Access Act case, but it was an equal access principle
that we thought students should be allowed to meet with outside
groups after class on school campus.
Chairman Cornyn. I raise that issue, and I point out that
in 1984 there was no overwhelming consensus in favor of that
outcome. In fact, there were groups like the American Civil
Liberties Union and People for the American Way, who were on
the other side of that, that raised constitutional objections
to the Equal Access Act.
Rev. Walker. My friend, Eliot Mintzberg from People For
said they were not on the other side of that one, and they have
been very good at helping us enforce the parameters of the
Equal Access Act.
Chairman Cornyn. My information is that they were on the
losing side of that case. But just, it is funny you should be
talking about the People for the American Way, because I
noticed on my Blackberry, they have already issued a press
release commenting about this hearing and criticizing this
Committee for conducting a hearing that would provide a forum
for Judge Moore to speak out. I guess they failed to note, at
least in the e-mail I saw, that there were others here, that
there are six members of this panel, and we are talking about a
variety of concerns about the First Amendment protections and
certainly not just any single case.
Mr. Shackelford, let me just ask you what sort of
difficulty do people have? I think you mentioned, was it Mr.
Clark's case or maybe another, where people had to get together
and raise $80,000 just to be able to afford a lawyer to defend
their rights. Is the money and the time and possibly even the
public ridicule that people have to endure in defending their
rights under the free exercise clause, does that represent a
real problem in terms of people getting to be able to express
their views publicly?
Mr. Shackelford. Mr. Chairman, no question. Most people
immediately just cave because they feel like, I am not OJ and I
cannot hire the dream team, so I am going to back down. The
extra problem is that unlike other lawsuits, our religious
freedoms and our constitutional rights are much more valuable,
but they do not result in damages. So number one, attorneys
might be less likely to take those because there is not great
remuneration at the end, and number two, and even more
problematic, the government entities, therefore, are much more
likely to drag their feet because there is no downside to them.
They do not have to pay damages. I think that some improvements
statutorily in the future would maybe get a lot of these things
settled more quickly if there was actually a downside to the
government entity who was refusing to take care of people like
Mr. Clark and the other seniors that are involved there.
Chairman Cornyn. Thank you very much
Nashala, let me ask you one question. Now, I believe in
your case, when your school told you that you could not come
and wear your head scarf to school, your lawyer mentioned
earlier today that they said that, well, if you wanted to wear
a head covering for medical reasons, or if you wanted to wear a
head covering for recreational reasons, or perhaps for
educational reasons, that they would allow it, but they would
not allow you to wear your head scarf as a manner of religious
observance. Is that right?
Miss Hearn. Yes.
Chairman Cornyn. Thank you very much for answering the
question.
At this time I will be glad to recognize the Ranking Member
for any questions he may have.
Senator Feingold. Thank you, Mr. Chairman.
Reverend Walker, thank you for appearing before the
Committee today. You have a very distinguished record regarding
church/state issues. Today we heard Mr. Shackelford discuss
cases in which children are allegedly being deprived of the
right to religious expression in school. Can you say a bit
about the scope of legal rights of children with regard to
religious expression in schools today?
Rev. Walker. Generally speaking, the religious rights of
students should be protected and is being protected in most
cases. It is the government we do not want getting involved in
religion, but the government should accommodate the religious
needs of students. So passing out a pencil with Jesus' name on
it, or a candy cane, or other vestiges of religion, inviting
somebody to come to church, or even witnessing to another
classmate, I think is not only not constitutionally prohibited,
it is constitutionally protected, and I think we are doing a
lot better. Notwithstanding the cases that have been brought
before this Committee, I think we are doing a lot better in
that area than we used to.
We have got problems on both sides of that course of
neutrality that I think the schools ought to take, and we can
bring attorneys from People For to this board and tell horror
stories on the other side too. So there are problems on both
sides, but I think in the main we are doing better now.
There is some limitation I think to what even students can
do and say on campus. They cannot be disruptive. It has to not
be harassing of other students. You can ask somebody to go to
church with you, but if they say no, you cannot badger them on
and on, and I think the school have an obligation to maintain
some peace and harmony there when proper religious expression
gets out of hand and turns into harassment, particularly in the
younger grades.
Senator Feingold. I would agree with that. I note that when
the Clinton administration issued their explanation of what was
really allowed and what it not allowed, people who were
concerned became less concerned when they realized the scope of
activities that certainly are protected within the school.
Mr. Shackelford, as you know, S. 2323, introduced by
Senator Shelby, would remove jurisdiction from both the Supreme
Court and the inferior Federal Courts regarding matters where
relief is sought against an entity, officer or agent of the
Federal, State or local Government by reason of the entity or
agency's acknowledgement of God as the sovereign source of law,
liberty or government. Senate Bill 1558, introduced by Senator
Allard would remove jurisdiction from inferior Federal Courts
regarding the subject matters of displaying the Ten
Commandments, the word God in the Pledge of Allegiance, and the
motto ``In God we trust.''
In the Balch Springs case the Court played an important
role for you and your client. By filing suit in U.S. District
Court you were able to bring the parties to the table and
ultimately to reach an agreed judgment on January 8th of this
year. Do you not agree that Federal Courts can play a valuable
role in resolving disputes about religious expression, and that
in effect stripping the courts of their jurisdiction regarding
these very important issues might be detrimental to the free
exercise of religion?
Mr. Shackelford. I do think they can obviously play a
valuable role. The problem is if they go so astray of the words
of the Constitution that they are not actually helpful, but
they act like a legislature, and I think that is the concern.
The idea that our Founders, in passing the First Amendment,
would think that there is something wrong with acknowledging
the existence of God, I think is an example of how far they
have gone adrift, but I do think that the courts can be
helpful. I think the shame in the religious freedom area is
that the only way those of us who practice in this area can win
now is under the free speech clause, that the free exercise
clause has been so reduced that you have to argue free speech
to protect religious expression, and I think that is sad.
But again, you cannot argue free speech and therefore you
can get some protection in the courts for religious freedom
even today.
Senator Feingold. I appreciate your candor in that answer
because a couple of the episodes today on both sides of this
question were assisted to the right answer by the ability of
the Federal Courts to be involved.
Mr. Rosenauer, thank you for agreeing to appear before the
Committee and sharing your family's story with us. Some people
who have followed your case seem to think that the school board
members were simply engaged in their own private religious
expression. To you and others, opening school board meetings
with the Lord's Prayer amounted to government endorsement of
religion and made those who did not share the religious views
of the board members feel something like outcasts. I take it
that you support the free exercise of religion as long as it is
not government endorsed; is that right?
Mr. Rosenauer. Oh, definitely. If I can just go back a
minute to Mr. Cornyn's question a little bit. You asked if we
were satisfied. One of the things on the agreement is that we
had actually wanted in the agreement places where discussion of
specific deities was allowable, specific as far as content and
such like that. And actually, the school board members are the
ones who did not want that include in the agreement.
But, no, to your question, yes. It is just that this--our
action against the school board, an awful lot of the people in
Manatee County and the officials were trying to turn it into a
religious argument, religion versus non-religion and so on, and
basically it was not that. It was a matter of the Rosenauer
family standing up to the government in the name of the school
board for I have a right to raise my children in the faith and
in the manner to which I believe, and not in the faith and the
manner to which they believe in.
Senator Feingold. Thank you, sir.
Back to Reverend Walker. In testimony today, Judge Moore
states that he believes public officials are unfairly
restricted in acknowledging God. What in your view is the scope
of public officials' rights to acknowledge God in their
official capacity?
Rev. Walker. I think they can certainly talk about their
religious convictions in their campaign speeches, in their
speeches on the floor. They can use their religious beliefs to
inform their policy decisions in a variety of ways, but they
cannot use that religious acknowledgement or conviction to
force that believe on other people through coercive action.
They cannot, as in the case with Judge Moore, set up a
religious shrine at the front of the highest court in the State
of Alabama, by which everyone who goes into that courtroom must
pass in order to get justice. I think that is more than an
acknowledgement of his belief in God, but actually establishing
a religious tradition, a preferred scripture, and creating a
religious display that under any imaginable understanding of
the establishment clause violated the intent of that provision.
And then of course there are legal guidelines that we use
to determine whether the policies that result from those
religious convictions are constitutional, they have to have
some secular purpose. They may not have the primary effect that
advances religion, may not excessively enable the government
with religion. As long as it passes those tests, the fact that
a public official acknowledges God or has some religious
motivation behind his or her actions in office, is not
problematic in my view.
Senator Feingold. Thank you, Reverend.
Thank you, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Feingold.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. These certainly
are important issues, delicate and sensitive issues for
America. We need to respect other people's faith and be
sensitive to that. I think that is the first rule of courtesy,
is to be sensitive to other people and how they believe.
I remember vividly saying something to my father once about
some strange religious practice I thought was strange at least.
And he said never make fun of somebody's religion. And I think
that is American tradition, that we respect faith, and I do
believe that the Founders respected faith, and they intended
people to be able to exercise it freely, but they did not
intend for the government to favor one religion over another. I
think that is fundamental to the deal. I read recently a
biography of James Madison and his marvelous letter about the
persecution of the Baptists in Virginia. The Anglican Church,
many of them were corrupt, were being paid by the State, and
they put in jail Baptists, and he could hear them singing
hymns. And so he felt real strongly about it, and so did
Jefferson. But Washington and Patrick Henry are on the other
side. It took a long battle before they passed this thing.
But let me just ask you this, Judge Moore. Virginia Act for
Establishing Religious Freedom was Jefferson's and Madison's
victory in Virginia for religious freedom, something I am most
proud of. You do not know I am going to ask this, but you
probably know about it because I know you are a scholar of
these things. But again it is this way.
This is a Virginia Act Establishing Religious Freedom, well
aware that almighty God hath created the mind free, that all
attempts to influence it by temporal punishments or burdens or
by civil incapacitations tend only to beget habits of hypocrisy
and meanness and are a departure from the plan of the holy
author of our religion, who being a lord, both of body and
mind, yet chose not to propagate it by coercions on either, as
was in his almighty power to do.
I remember very vividly the first conversation you had with
me at one point, and I do not even know how it came about, and
you shared to me your view that there is a difference between
acknowledging God and establishment of a religion.
Justice Moore. Exactly.
Senator Sessions. We do not have a whole lot of time, but
could you share with us your view of that?
Justice Moore. Well, first, turning back to the Bill for
Religious Freedom, clearly that was Jefferson's statement, well
aware that almighty God hath created the mind free and
manifested his supreme will that free it shall remain by making
it all together insusceptible of restraint, that all attempts
to influence it by temporal punishments, burdens or civil
incapacitations tend only to beget habits of hypocrisy and
meanness and are a departure from the plan of the holy author
of our religion, who being lord both of body and mind, yet
chose not to propagate it by coercions on either, as it was in
his almighty power to do; but to extend it by its influence on
reason alone.
Now, listen to this, that the impious presumption of
legislators and rulers, who being themselves but fallible and
uninspired men, have assumed dominion over the faith of others,
setting up their own opinions and modes of thinking as the only
true and infallible, and as such endeavoring to impose them on
others, have created and maintained false religions across the
earth to all mankind.
What Jefferson is saying here is that God gives us the
freedom, and for a Baptist representative here to say a public
official cannot acknowledge God is hypocrisy. We have a right,
we have a duty to acknowledge God. The organic law of our
country, the Declaration of Independence, according the United
States Code Annotated, states that this Nation was established
by the laws of nature and of nature's God, that we hold these
truths to be self evident that all men are created equal and
endowed by their Creator with certain inalienable rights. Among
these are life, liberty and pursuit of happiness. And
Government's only role is to secure those rights for us.
Now we find the Federal Courts coming into our State and
telling us we cannot acknowledge God. That is exactly what they
did in Alabama. They have no right, no jurisdiction to do that.
The only purpose of the First Amendment was to keep the Federal
Government out of the affairs of the State with regard to the
acknowledgement of God.
Why is there so much confusion in the First amendment? It
is very simple. The law says Congress shall make no law
respecting the establishment of religion or prohibiting the
free exercise thereof. We have just forgotten the word
religion, what it means. We have confused it with terms that
you cannot accommodate, you cannot promote, you cannot advance,
you cannot endorse, you cannot excessively entangle. We feel
like outcasts. We are offended. All these are feel good things,
not law. We have departed from the law. If Congress cannot make
a law, how in the world can the Supreme Court interpret a law
that Congress cannot make?
You see, the Supreme Court is coming into the States and
telling these States that any acknowledgement of God is
verboten. Well, that contradicts the laws of every State. It
contradicts my oath in Alabama. They said, well, the justice
system. The justice system in Alabama is established invoking
the favor and guidance of almighty God.
I want to answer your question with one other thing. The
House of Representatives in 1854, 100 years before they put
``under God'' in the pledge, they talked about religion. This
is the Judiciary Committee. They said: Congress shall make no
law respecting the establishment of religion. Does our practice
of chaplaincy in the military present practice violate this
rule? What is an establishment of religion? It must have a
creed defining what a man must believe. It must have rights and
ordinances which believers must observe. It must have ministers
of defined qualification to teach the doctrines and administer
the rights. It must have test for the submissive and penalties
for the nonconformists. There never was an established religion
without all these.
You see, God's not religion. He never has been, and man is
not the neutral party here. Government is not the neutral
party. It is God who gave us that freedom. These matters belong
to the States, not to Federal Government. The Constitution
Restoration Act of 2004 says something so basic that no
American person should disagree. It says that when a Federal or
State official acknowledges God--by the way, they all do, even
the United States Supreme Court opens with God save the United
States and this Honorable Court. Every representative here in
Congress opens their sessions with prayer. ``In God we trust''
is the national motto. The President takes his oath, not on the
Koran, but on the Holy Bible. That is not to deny other people
the right to worship according to the dictates--
Senator Sessions. Could he take it on the Koran?
Justice Moore. If that was his choice, yes. It would not
acknowledge the God upon which this Nation was founded, but has
he got the freedom to do that? Absolutely, it is not an
establishment of religion and the President would not be
Congress. Congress shall make no law respecting the
establishment of religion. Is a monument a law? Does a monument
forbid you to do anything or command you to do anything? Is it
establishment? Is it religion? Am I Congress? And you say,
well, by and through the Fourteenth Amendment. By and through
the Fourteenth Amendment does not give the right of the Federal
Government to forbid the acknowledgement of God from the
States. It is that simple. It is outside Federal jurisdiction
and this Act should be passed by Congress to stop--we call this
court stripping. In the 107th Congress, just last year, they
used this Article III jurisdiction 12 times, one of them by
Representative Daschle regarding the forestry out in his
district. Certainly if you can use it for that, you can use it
to stop the Federal Courts from interfering with the right of
the States to acknowledge God. It is not taking anything from
the Courts to which they have a right to. It is restricting,
regulating them in accordance with Article III from something
they have no jurisdiction of.
Senator Sessions. Mr. Walker, briefly, I think you would
want to respond.
Rev. Walker. Yes.
Senator Sessions. And maybe Mr. Shackelford, you lawyers.
But I wonder seriously if Judge Moore is not touching on
something that maybe could help us out of this thicket. He is
saying it is alright to acknowledge God, but you cannot
propagate a faith or a religion. Would you comment on that, and
Mr. Shackelford?
Rev. Walker. Sure. Yes, I did not say that it was
impermissible for a public official to acknowledge God. I said
just the opposite, and Judge Moore just catalogued the dozens
of ways in which that is commonly done. Senator Shelby withdrew
the laundry list earlier. Religion is routinely acknowledged by
public leaders.
But what you cannot do is to put up a monument in the
middle of the courthouse that starts off saying ``I am the Lord
your God, who brought you up out of the land of Egypt, the
house of bondage. You shall have no other Gods before me,'' and
to put the imprimatur of the highest judicial officer in the
State of Alabama on that expression of religion, if that is not
establishing a religion, I do not know what does. That is the
difference. It is not just an acknowledgement. It is an
establishment, not just of religion generally, but of a
particular religious tradition, and we part company simply on
that conviction.
Two Baptists here disagreeing with one another like you
have never seen before.
Justice Moore. We may disagree, Senator, but he also
disagrees with George Washington, John Adams, the first Senate,
the first Representatives of the House of Representatives, who
after April 30th, 1789 in New York City, right above Wall
Street, he took his oath, acknowledged God. They went up the
street and went to St. Paul's chapel. I recently visited St.
Paul's Chapel. Anybody here can go. It stands right at the edge
of Ground Zero, and right in front of the chapel with the Ten
Commandments in two tables of the law. They went back to
Federal Hall and formed the first First Amendment, and the
first thing they did was allow the President to acknowledge
God. The only thing the case in Alabama stands for, according
to the Federal District Judge--and I have his opinion right
here--he said he was not saying that the Ten Commandments could
be displayed in government office buildings. He was saying that
when you did it with a monument, with the express purpose of
acknowledging the Judeo-Christian God as the moral foundation
of law, you cross a line between the permissible and the
impermissible. No judge, no Federal Court, can tell a State
official to violate his oath of conscience to his own
Constitution that acknowledges God. That is simply an
acknowledgement of God. It always has been and always will be.
Mr. Shackelford. Senator, to answer your question, there
are sort of two concepts rolling around here, and I think Judge
Moore hits it, is we are talking about the establishment
clause. Unlike the Supreme Court, unfortunately, we ought to
look at the words of the establishment clause. It says ``an
establishment of religion.'' We hear terms like separation of
church and State thrown around, but almost never will you see a
situation where the term even applies because it is almost
never a church. It is usually some kid in a school or some
situation. It is the attempt to separate religion from State,
which is never what the Founders intended. It is not what the
establishment clause is meant to do. That is hostility to
religion, to separate religion from State. It is talking about
really the separation of not having an establishment of
religion, and the danger of this separation of church and State
terminology is we live in a society now where government is
almost everywhere we go. If you have strict separation that is
simply a nice vehicle to say religion needs to retreat to the
corners of society, because everywhere the government is,
religion has to retreat.
Senator Sessions. Such as a senior center, senior citizens
center.
Mr. Shackelford. Yes, and that is why the confusion with
the senior citizen center. That is why this type of thing is
going on. If we went back to the words of the Constitution,
even besides the fact that it says Congress, okay, and almost
never is it a Congress that we are talking about, let us just
look at the words ``an establishment.'' That is not talking
about the current test of the Supreme Court, for instance, the
endorsement test, that is supposedly unconstitutional for the
government to endorse religion in general. I mean our Founders
would be shocked at the idea that you cannot say religion is
good. But that is what the test says because they have so gone
away from what the Constitution says, and they are making up
the rules as they go.
Senator Sessions. Chairman, I guess my time is over.
[Laughter.]
Senator Sessions. Thanks to all of you.
Chairman Cornyn. I am enjoying the vigorous debate,
discussion and testimony of these witnesses. We thank all of
you for being here. We have another panel right behind you, so
we are going to thank you and ask you to make way for the next
panel.
I know a question came up earlier about the People for the
American Way's position on the Equal Access Act, and against
the Good News Club decision, and we will make a copy of those
amicus briefs raising objections in both of those cases part of
the record without objection.
[Pause.]
Chairman Cornyn. We are going to move quickly in the
interest of time to the next panel, so if I can ask everyone
else in the chamber please to hold it down a little bit, we
will do that henceforth.
We have three distinguished legal scholars. Professor
Richard Garnett, who is an Associate Professor of Law at Notre
dame Law School in South Bend, Indiana. Professor Garnett
received his undergraduate degree from Duke University and his
law degree from Yale Law School. He served as a law clerk in
the Federal Public Defender's Office in Arizona as well as a
law clerk to Chief Justice William Rehnquist, and Chief Judge
Richard S. Arnold of the U.S. Court of Appeals for the Eighth
Circuit.
Professor Melissa Rogers is a Visiting Professor of
Religion and Public Policy at Wake Forest University Divinity
School in Winston-Salem, North Carolina. She previously served
as the Founding Executive Director of the Pew Forum on Religion
and Public Life, and as General Counsel of the Baptist Joint
Committee on Public Affairs, the same organization that Mr.
Walker is associated with. She received her law degree from the
University of Pennsylvania Law School and her undergraduate
degree from Baylor University, which of course is located in
the great State of Texas.
Professor Vincent Philip Munoz is a Civitas Professor with
the American Enterprise Institute here in Washington, D.C. He
is an Assistant Professor of Political Science at North
Carolina State University, where he teaches public law and
political philosophy. Professor Munoz received his Ph.D. from
Claremont Graduate School, his M.A. from Boston College and his
B.A. from Claremont-McKenna College.
Thanks to all of you for being here. We very much
appreciate the benefit of your expertise and enlightenment on
this difficult subject, and we look forward to hearing from
you.
Professor Garnett, you may please proceed.
STATEMENT OF RICHARD W. GARNETT, ASSOCIATE PROFESSOR OF LAW,
NOTRE DAME LAW SCHOOL, SOUTH BEND, INDIANA
Mr. Garnett. Mr. Chairman, I thank you and your colleagues
for the chance to share my thoughts with you about the place of
religion in civil society, and also about the protections that
our Constitution guarantees to religious expression. These are
issues of great importance to all of us, and to me as a lawyer,
a teacher and as a citizen.
I have a longer law professorish statement that I would
like to have included in the record if that is all right.
Chairman Cornyn. Certainly. It will be made part of the
record without objection.
Mr. Garnett. I will begin with a fundamental premise. As
President Clinton put it nearly 10 years ago, religious freedom
is literally our first freedom, and it was central to our
Founders' vision for America. True, the framers did not always
agree about what the freedom of religion meant, and we were
reminded of that today. But they knew that it mattered, and
they were right.
The protections afforded to religious freedom in our
constitutional text and tradition are neither accidents nor
anomalies. They are not, as one scholar has claimed, an
aberration in our secular state. Our Constitution does not
regard religious faith with grudging suspicion or as a bizarre
quirk or quaint relic, rather as a former colleague of mine
once observed, our laws protect the freedom of religion because
religion is important, and because, put simply, the law thinks
religion is a good thing.
In our tradition religious freedom is cherished a s basic
human right and as a nonnegotiable aspect of human dignity.
Accordingly, we should regard government restrictions on
religious expression and not religious expression itself with
sober skepticism.
As you know, Mr. Chairman, the law books and the papers are
full of stories of public officials who have lost sight of
these fundamental premises, and these officials have on
occasion turned things upside down, treating citizens' public
religious expression with suspicion rather than with
evenhandedness and respect.
The good news though is that the Supreme Court by and large
continues to reaffirm that the Constitution neither requires
nor permits State actors to single out private religious
expression for unfavorable treatment. The Court continues to
remind us, in other words, as Justice Scalia has put it, that
private religious speech, far from being a First Amendment
orphan, is as fully protected as secular private expression.
Why does discrimination against religious expression
continue again from time to time? I am confident that the
public officials involved in the cases you have heard about
today do not for the most part harbor ugly prejudice or deep
hostility toward religious believers. Instead, I am convinced
that many well-meaning Americans today fail to understand in
several important ways the text, history and purpose of our
First Amendment.
For starters, many misunderstand the meaning of the phrase
``separation of church and State'' and the place of this idea
in our tradition. To be sure, the separation of church and
State, if properly understood, is a crucial component of
religious freedom, that is, the institutional and
jurisdictional separation of religious and political authority,
respect for the freedom of conscience, and strict government
neutrality with respect to different religious traditions, all
of these separationist features of our Constitution, have
helped religious faith to thrive in America. In other words,
the separation of church and State, if properly understood, is
not an anti-religious ideology, but an effective way to
implement our overarching commitment to religious freedom.
Unfortunately, many have confused Jefferson's figure of
speech about a wall of separation with an entirely unsound rule
that would authorize public officials to scrub clean the public
square of all sectarian residue. This view is seriously
mistaken, and indeed, as John Courtney Murray lamented, about
50 years ago, arguments like this stand the First Amendment on
its head, and in that position, he said, it cannot but gurgle
nonsense. In fact, our Constitution separates church and State
not to confine religious belief or to silence religious
expression, but to curb the ambitions and reach of governments.
The aim is not to put religion in its place after all,
government lacks the authority to determine religion's place,
but to protect religion by keeping the government in its place.
In addition, many of us have forgotten that the First
Amendment constrains government conduct only. It has nothing to
say about private action except of course to confirm that
religious expression and exercise and worship are worth
protecting. The establishment clause is not a sword, driving
private religious expression from the marketplace of ideas.
Rather the clause is a shield that constrains government
precisely to protect private religiously motivated speech and
action.
So nothing in our tradition implies a duty of self
censorship by religious believers, and nothing in the First
Amendment suggests that religious expression is out of place or
unwelcome in public debate. Still, many appear to have the view
that it is somehow in bad taste to bring religion into
discussion of public policy. On this view, as Stephen Carter
memorably put it, religion is like building model airplanes,
just another hobby, something quiet, something trivial, not
really a fit activity for intelligent adults.
But in fact our Constitution does not demand the
trivialization of religion. and does not require what Richard
Newhaus famously called a naked public square. There is no
``don't ask-don't tell'' rule that applies to religious
believers who are presumptuous enough to venture into public
life, and there is no special obligation on devout religious
believers to sterilize their speech before entering the public
forum. Active and engaged participation by the faithful is
perfectly consistent with the institutional separation of
church and State that the Constitution is understood to
require.
Thank you very much.
[The prepared statement of Mr. Garnett appears as a
submission for the record.]
Chairman Cornyn. Thank you, Professor Garnett.
Professor Rogers, we would be happy to hear from you.
STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF RELIGION AND
PUBLIC POLICY, WAKE FOREST UNIVERSITY DIVINITY SCHOOL, WINSTON-
SALEM, NORTH CAROLINA
Ms. Rogers. Thank you Mr. Chairman, Senator Feingold and
other members of the Subcommittee. I am Melissa Rogers, and I
am Visiting Professor at Wake Forest University Divinity
School. As you said, I also formerly served as the Founding
Executive Director of the Pew Forum on Religion and Public Life
and as General Counsel to the Baptist Joint Committee on Public
Affairs.
I am also an attorney, a lifelong Baptist and a youth
Sunday school teacher, probably one of the hardest of my jobs.
Mr. Chairman, I am not persuaded that there is persistent
or frequent governmental hostility toward religious expression
in the public square. I see no need for legislation on this
issue. Indeed, I believe that religious freedom is something
that America usually gets remarkably right.
Let me take a few minutes just to look at some of the
examples that we have seen this afternoon. We have talked a lot
about the Supreme Court, and I am sure we will do so more. In
my opinion the Supreme Court has struck a very wise balance by
prohibiting the government from promoting religion, but also by
protecting the people's rights to promote their own religion.
That is a very wise balance. It spells benevolent neutrality
toward religion, not hostility toward religion. It promotes
religious freedom, and it also, I would add, protects religion
by keeping the government out of religion. That is good for
religion. It helps religion to stay vital and autonomous from
the State.
The first case that we talked about this morning was the
Hearn case, and in my opinion, that case represents a very
serious mistake that was made by the school, and I am grateful
that the Department of Justice entered that case to set things
right. The facts that I know do not suggest in that particular
example a kind of generalized hostility to religion, but they
may perhaps suggest some kind of particularized hostility to
Islam, and certainly in the wake of the 9/11 attacks it is
particularly important that our own country protect the
practice of Islam and our own country. President Bush I think
did a very good job of that right after the 9/11 attacks and we
need to continue to educate people about the practice of Islam
in America, and to protect students' expression of their faith
by wearing a head covering and by having this opportunity to
pray during the school day.
Several examples that Kelly Shackelford mentioned about
students in schools and their giving gifts to other students
and cards and things, when there were times for gift giving and
the like, and from what I know about this, these sound like
examples of personal expression of religion that the law
protects. In other words, this is not a problem with the law,
this is a problem with a misunderstanding of the law. In my
general experience, like Professor Garnett, this does not stem
from hostility towards religion, but ignorance about the law
and confusion.
When any violation is identified like Nashala Hearn's, it
is a serious matter. It is something that we should seek to
rectify quickly. But we need to treat problems with the right
remedy. When we have a misunderstanding of the law we need to
educate people better about what the law is. We do not need to
change the law in that situation.
Also the senior center also sounds to me like that is
personal expression that the law protects. Indeed, I worked
with people during my time at the Baptist Joint Committee to
write some rules for senior citizens that allowed this kind of
equal access rule to be instituted, where groups were allowed
to have private meetings, whether they were religious or not,
in the senior center, and they were allowed to do that without
interference from the State because that was recognized as
individual religious expression, not government religious
expression. And there is an important difference between the
two.
Judge Moore's case does not stand for the proposition that
all Ten Commandments displays are unconstitutional. Beside
being able to post Ten Commandments in our churchyards and our
homes and the yards out in the front, there are also ways to
display the Ten Commandments in a constitutional manner on
government property. And this case does not prohibit public
officials from acknowledging God. In my testimony I talk about
many ways in which government officials can reflect their
personal religious convictions and that is all quite
appropriate. This case does not reflect hostility to religion.
Instead this case stands for the proposition that the American
Government will not endorse the majority Christian faith over
other faiths. That is a noble proposition. It stands for the
principle that the government will not become involved in the
propagation of religion, but it will leave that task to
citizens and to houses of worship. That is a wonderful
proposition. It leaves us as religious people more free. The
case stands for the notion that the American courts belong to
all of us and not just those who believe a certain way.
As I have heard more about Judge Moore's case, I think
about how I would feel as an attorney if I lived in another
land, in another place, where the State endorsed Islam, for
example. How would I feel if on my way to court I had to pass a
central monument lifting up the religion of Islam? How would I
feel if I was made to stand to listen to Islamic prayers in the
courtroom before I started my case, and to give attention to
those prayers? I think I would feel unwelcome as a Christian. I
think I would feel that the State was coercing me to give
respect and honor a religion I do not endorse or believe in. I
think I would have legitimate concerns that that Nation's
courts would not treat me and my fellow Christians as well as
it would treat Muslims.
We cannot get off the hook by simply saying that will never
happen in America. That is not a good justification. There has
to be a principle here, and if the situation I described is
intolerable and wrong in our own country and it is intolerable
and wrong for a State-endorsed Islamic faith, then it is just
as intolerable and wrong for us to do it as Christians in our
own country. Instead we have to extend to others the same
freedom we demand for ourselves.
Where there are misunderstandings of the law, either over
interpretations or under interpretations, they need to be
corrected. Those are serious mistakes, and any denial of
religious freedom, I would work very hard to correct, and I
have been a part of those educational solutions in the past and
I would like to work toward more educational solutions in the
future. But the First Amendment gets it right. It prohibits the
government from promoting religion, but protects the people's
right to do so.
This is not the French rule. There was talk earlier about
some effort perhaps in America to cleanse the public square of
religion. France, I think, is arguably headed in that direction
because they are saying, ``You cannot have this religious
symbol on government property. That is inappropriate. You are
on government property. You take off that religious symbol.''
That is cleansing the public square of religion.
We do not have that rule. The key question in our own
country is to whom the speech is attributable. If it is
attributable to a person, then it is protected. If the
promotion of religion is attributable to the State, then it is
prohibited. That is the right rule.
Finally, let me just close by saying there is one thing
that I want to mention that has troubled me in this hearing,
among some other things. I have heard a number of people talk
about on the one side we have religious liberty, and that is
one thing, and on the other side we have this establishment
clause. So we have religious liberty over here and we have the
establishment clause over here. So the establishment clause is
not a part of supporting religious liberty. It is almost as if
we are saying the free speech and free exercise clause are
religion's friend and the establishment clause is religion's
foe. They are two different things and they do not work
together.
I think by preventing the government from supporting
religion we keep the government out of religion. We acknowledge
that religion is not and should not be a creature of the State.
We acknowledge that the government should not be making
decisions about religion. Indeed, I feel sort of sick when I
start hearing people talk about nonsectarian, nonproselytizing
prayers. That means the government is going to determine what
is sectarian and what is proselytizing. It means that the
government is going to be very much involved in making
determinations about religious doctrine and speech, and it
seems to me we have to avoid that bad result. We also have to
avoid the government endorsing religion, and we have to leave
that promotion of religious expression to people and to their
houses of worship.
By keeping the government from supporting religion, we
actually ensure that religion remains vital, strong and
autonomous in America.
In short and in closing let me say that under the free
exercise clause, government should not interfere with religion.
Under the establishment clause the government should not
support religion. When we put these two things together, we get
real religious freedom, and that is the noble goal we should
continue to pursue.
Thank you.
[The prepared statement of Ms. Rogers appears as a
submission for the record.]
Chairman Cornyn. Thank you, Professor Rogers.
Professor Munoz.
STATEMENT OF VINCENT PHILIP MUNOZ, CIVITAS FELLOW OF RELIGION
AND PUBLIC LIFE, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON,
D.C., AND ASSISTANT PROFESSOR OF POLITICAL SCIENCE, NORTH
CAROLINA STATE UNIVERSITY
Mr. Munoz. Mr. Chairman and members of the Subcommittee,
thank you for inviting me to present my views. I am the Civitas
Fellow of Religion and Public Life at the American Enterprise
Institute and an Assistant Professor of Political Science at
North Carolina State University.
In addition to my spoken comments, I have a longer written
statement that I would like to submit for the record.
Chairman Cornyn. Without objection.
Mr. Munoz. I want to try to explain today why the hostility
toward religion that we have heard is taking place, and if I
can communicate only one point in my testimony today, it is
this: the Supreme Court of the United States remains primarily
responsible for the continued legal hostility towards religion
in America today. Simply stated, the Supreme Court has
interpreted the establishment clause in a manner that
encourages and sometimes demands hostility toward religion.
Two establishment clause doctrines in particular lead to
hostility toward religion, the endorsement test and the
coercion test.
The endorsement test, which was invented by Justice Sandra
Day O'Connor in the 1984 case, Lynch v. Donnelly, prohibits
State actors from endorsing religion. It purportedly keeps
government religiously neutral. In practice, however, no
endorsement quickly becomes outright hostility, especially in
the context of public school. Under this rule activities that a
child perceives to favor religion must be prohibited to avoid
the appearance of governmental endorsement. The quintessential
example of how the endorsement test purges religion from the
public square and public schools occurred in the 1985 case,
Wallace v. Jaffree. The Supreme Court used the test to strike
down an Alabama law that directed the public school day to
begin with a moment of silence for voluntary prayer. Justice
O'Connor claimed that to set aside only one minute for children
to pray silently to themselves endorses religion, and thus,
under her interpretation, violated the Constitution. In 1989
the Supreme Court used the endorsement test to require the
removal of a privately-funded nativity scene in front of the
courthouse of Allegheny County, Pennsylvania, and perhaps most
notoriously, the Ninth Circuit Court of Appeals employed the
endorsement test to prohibit teacher-led recitations of the
Pledge of Allegiance in public schools. The words ``under God''
the Ninth Circuit claimed, endorse a particular religious
concept, namely, monotheism. The Ninth Circuit's decision has
come under heavy criticism including criticism from the Senate,
but the Ninth Circuit only followed the example set by the
Supreme Court. ``Under God'' endorses the civic faith Americans
have adopted since the signing of the Declaration of
Independence, but this expression and the tradition it follows,
if we use Justice O'Connor's standards, violate the
Constitution.
The second leading test used by the Supreme Court for
establishment clause jurisprudence is the coercion test.
Invented by Justice Kennedy in the 1992 case, Lee v. Weisman,
the coercion test sounds reasonable. No one believes the that
State legitimately may coerce religious practice, but as
applied by the Court, it too drives religion out of the public
square. In Lee v. Weisman the Court eliminated a
nondenominational invocation and benediction at public school
graduations. According to Justice Kennedy, to ask public school
children to stand respectfully while others prayed
psychologically coerces religious practice. In the 2000 case
Santa Fe Independent School District v. Doe, as you know, the
Court prohibited the Texas tradition of nondenominational
prayers at high school football games. The Court said that some
fans might feel like outsiders. Thus interpreted, the coercion
test secures the right not to feel uncomfortable because of
others publicly expressing their religious beliefs.
It is common sense to say that government may not force a
student to pledge allegiance or to recite a prayer. It is all
together different to say that because some feel like
outsiders, others may not pray. Tolerance should be a two-way
street. Like the endorsement test, the logic of the coercion
test calls for the curtailment of public expressions of
religious sentiment. It is not coincidence that the Ninth
Circuit also cited Justice Kennedy's doctrine of psychological
coercion when it struck down the Pledge of Allegiance.
The cases I have mentioned are significant in and of
themselves. Their impact extends far beyond the specific
parties involved. What constitutes an impermissible endorsement
or psychological coercion is inherently indistinct. The law's
vagueness makes State acknowledgement of religious sentiment
suspect. It enables special interest litigators who are
professionally hostile towards religion to file lawsuits to
challenge almost any State action that accommodates religion.
The pernicious effect of such litigation, and the mere threat
of it, is considerable.
Imagine yourself as a high school principal or a city
council member. It is easier to remove the Ten Commandments
from the public park or to silence a school valedictorian who
wishes to speak about religious faith than it is to fight a
legal battle against the ACLU. It is easier to mandate a
religion-free zone than to be sued. Fearful local officials and
public school administrators have the incentive to eliminate
the public acknowledgement of religious sentiment in order to
avoid costly litigation, and in this way, the Supreme Court has
armed anti-religious activists to impose their vision of the
secular State to legal threats and litigious intimidation. The
result is not only the naked public square but the trampling of
religious individuals' constitutional rights to religious free
exercise and the freedom of expression.
The Constitution's text prohibits laws respecting an
establishment of religion or prohibiting the free exercise
thereof. It says nothing about governmental endorsement of
religion. Justice O'Connor has effectively replaced the text
and original meaning of the First Amendment with her own words
and her own ideas. Justice Kennedy's psychological coercion
test is also far off the mark.
The Founders understood religious coercion to mean being
fined or being imprisoned or being deprived of a civil right on
account of one's religion. Coercion to them did not include
merely feeling uncomfortable when other people mention God. The
modern Court has lost sight of the fact that the framers of the
First Amendment meant to protect religious freedom, not to
banish religion from the public square. The free exercise of
religion is the primary end fostered by the First Amendment. No
establishment is a means towards achieving that end. By
prohibiting religious establishments the Founders sought to end
things like State officials appointing bishops, limiting public
office to members of the established church only, and the
licensing and regulation of dissenting religious ministers.
They did not mean to forbid the public acknowledgement of God
or even nonsectarian endorsement of religion. They certainly
did not intend to constitutionalize doctrines like the
endorsement test and the psychological coercion test.
Until these doctrines are overturned, legal hostility to
religion in the public square will continue.
Thank you.
[The prepared statement of Mr. Munoz appears as a
submission for the record.]
Chairman Cornyn. Thank you, Professor Munoz, and thanks to
the entire panel for illuminating the difficult issue, and one
that I have struggled with in the past and continue to struggle
with today. It is no wonder that local elected officials,
whether they be school board officials or city council men or
women or others, that they would struggle with them because
indeed we see that the Supreme Court of the United States is in
a struggle with itself over some of these cases.
I guess, Professor Rogers, and I appreciate very much you
being here, it is tempting to me to accept your statement that
this is really a case of just people being misinformed or
ignorant about what the First Amendment requires, and this is a
friendly question, by the way. It really is very tempting, but
I cannot agree with you if you mean by that that there are not
people who are decidedly on the other side of these issues in a
very organized way.
For example, I know in the Baptist Joint Committee we heard
agreed with the Equal Access Act, and the Good News Club cases,
we know that the ACLU and the Americans United for Separation
of Church and State and People for the American Way were on the
other side of it, and indeed these were, I believe, divided
Court opinions. So there was not this consensus that the law is
clear and the people who are misinterpreting it, it is their
fault. It is not the fault of the people at the top who are
indeed writing the opinions and telling us what the law is. And
it really does not acknowledge the role of some of the
organized groups who are out there, who from my perception,
take a very hostile view toward any public expression of
religion.
But I would like for you to--and I think Professor Munoz
has done us a service by focusing on a couple of tests, the
endorsement test and the psychological coercion test. Could you
give us the benefit of your thoughts on how if private
expression of one's faith, if done in a public forum, how that
would ever pass Justice Kennedy's psychological coercion test,
or if done in a public forum controlled by some governmental
entity, how that would ever pass the endorsement test. It seems
to me like both of those would be very real impediments toward
the exercise of one's religious liberty, even if from a
standpoint of a private expression of faith or prayer if done
in a public setting, and if indeed our goal is not to create a
faith-free zone or a naked public square, how do we get around
that?
Ms. Rogers. You refer to the coercion and endorsement test,
and I would say Justice O'Connor has been the one to be
principally responsible for the origination of the endorsement
test. She is also the one who wrote an opinion in the Mergens
case, which upheld the constitutionality of the Equal Access
Act, and she gave a very sort of favorable review of that law,
if you will, saying this is exactly right. She is the one wrote
the statement that speech promoting and endorsing religion by
individuals is protected by the Constitution, both the free
exercise and the free speech clause. What is prohibited by the
establishment clause is the government's promotion of religion.
So I think right there you see someone, that is one example.
Justice O'Connor has said things like the Equal Access Act, and
also she joined in the majority of course in the Good News
Club, where community groups can use school property after
school on an equal access basis. She is one who has brought
these things together, if you will, has said that the
government should not promote religion, but it should protect
the right of individuals and religious groups to do so. I think
in that very example you see how that understanding can be
consistent. It is certainly consistent in her own actions and
statements on the Court.
Chairman Cornyn. I would say in response, and you raise an
interesting point, but it sounds to me like a lot of ad hoc
decision making by the judges. In other words, they look at a
given case on its facts, and they say, okay, this passes the
endorsement test. This does not. And there is no way for
individual citizens to predict how their case might be
regarded, which indeed creates an environment where there is a
perceived hostility to the religious expression, because as you
say, well-meaning people not understanding what set of facts
are going to result in me losing the case, what set of facts
are going to result in me winning the case. They simply say, we
are not going to take a chance, so we are going to ban all
religious expression from our senior community center, from the
middle school, from the PTA meeting.
I think, Professor Munoz, you commented in your remarks
about the difficulties of apparent ad hoc decision making.
Could you comment on that?
Mr. Munoz. Let me get at exactly the problem you have
brought up. A high school valedictorian speaking at graduation,
is that a private individual speaking or is that a government
actor speaking? Who is to know? That is a hard question. So
what happens is the high school principal says, ``Look, you
cannot talk about God. I do not want to get sued. The school
district cannot afford to fight against the ACLU.'' And that
inherent ambiguity of the endorsement test leads directly to
this sort of hostility in the law.
Chairman Cornyn. Thank you.
Ms. Rogers. I do not know if I could come back to--
Chairman Cornyn. Let me tell you why the one reason why I
am mystified by the Supreme Court's jurisprudence. For example,
in a case that I helped argue before the United States Supreme
Court when I was Attorney General, Doe v. Santa Fe Independent
School District, this was student led, student initiated
prayer, albeit in a public forum before a school football game.
But the very fact that it was in that forum in large part
contributed the Court to striking it down as a violation of the
First Amendment. It appeared to be a very fact-specific case,
but the problem is when the Supreme Court of the United States
finds facts, there is no predictability in the outcome.
Professor Garnett, would you care to comment on this
dilemma? Do you have any observations to offer us?
Mr. Garnett. I do not know that I have much to add to what
you just said, Senator. I share your view that the Doe case was
wrongly decided, and I also am inclined to agree with your view
and with my colleague, that the endorsement test leads to a
danger of unprincipled ad hoc decision making.
Chairman Cornyn. Professor Rogers, I am sorry. Did you have
something else you wanted to add?
Ms. Rogers. I think these tests do have to be sensitive to
their facts, and I should say that no test of the Court is
perfect to be sure. But the point of the endorsement test, as
Justice O'Connor has said many times, is to ensure that
government does not make one's religious affiliation affect
one's standing in the political community. I think that is a
good principle.
These factual situations have to be considered in making
that evaluation, but I would disagree with you that there is
not any way to sort of figure out where the safe harbors are,
and I do not think the safe harbors are just in ``oh, go talk
about your religion somewhere else.'' No, the safe harbors are
not just that. There are more safe harbors for people to use to
express their religion in public schools and on government
property because we have had enough decisions using these tests
to--we cannot decide every case in advance, we cannot predict
every case in advance, but I think we can lay down some certain
principles that can be used by government officials. When you
referred in your opening remarks to the government officials, I
just find that my experience overwhelmingly is there, that they
are not hostile. They are simply scratching their heads a
little bit and trying to say, what does this mean? When you
have a time to sit down with them and provide them with some of
the guidelines that various ones of us have worked on, they
find that they are much better able to apply the law, and that
creates a situation in which people are actually able to enjoy
their rights and avoid lawsuits. I think we can make a certain
substantial amount of progress building on the projects of the
past to help government officials understand this law better.
Chairman Cornyn. I guess what makes me skeptical of what
you say is the fact that we have so many given examples of
people engaged in litigation, and indeed, these are the people
who have had the money and the resources to fight the
discrimination against their free exercise of religion, and I
wonder how many others have simply, as I think one witness
said, just caved in, and I worry about it. But while you say
the endorsement test and coercion test do provide some
predictability in this area of the law, I wonder, for example,
where in the world did the endorsement test and the
psychological coercion test come from? I do not see those words
in the First Amendment. These are judge-created tests and it
seems like the Supreme Court has gotten itself in such a box
that it literally cannot find its way out.
I am sympathetic to Professor Munoz's statement that the
Ninth Circuit has written a relatively straightforward opinion
striking down the Pledge of Allegiance following the United
States Supreme Court's jurisprudence, which demonstrates how
messed up it is.
I see my time is up, so I am going to turn the floor over
to Senator Feingold.
Senator Feingold. Professor Rogers, Senator Shelby
testified in the first panel, proposes that all U.S. Federal
Courts, including the Supreme Court, be stripped of any
jurisdiction over cases involving allegations of government
misconduct where the entity, office or agent acknowledges God
as a sovereign source of law, liberty or government. He also
proposes that any decision in the Federal Courts in cases of
that sort, even those decided in the past, no longer be binding
precedent on the State courts.
This proposed bill is clearly directed toward the Pledge
and Ten Commandments cases and shows the Senator's intent to
effectively nullify any ruling that the Supreme Court might
deliver in the future.
Could you please comment on what effect his proposal would
have on protections of religious liberty generally in our
country?
Ms. Rogers. I think that proposal would hurt religious
freedom. I think that we need to have the courts look at these
issues. They need to be able to evaluate them. One of the
things I put in my testimony, which by the way, I should have
asked be included in the record, was all the things that the
courts have done to recognize the way that religion can be
expressed in the public square. If we tie the courts' hands on
these issues, I think we will get a lot more situations that
will involve government endorsements and governmental promotion
of religion, and that is a religious liberty problem too. It is
not good for the government to be promoting religion. When the
government promotes religion it begins to control religion, it
begins to evaluate religious doctrine, it begins to many times
dumb down religion, make religion something that is not
powerful, that does not respond to God, but responds to earthly
powers. I think that this is a real problem, not just for those
who would say, ``Look, I do not want the government telling me
something religious because I am not religious.'' I think
religious people should be very concerned about government
promoting religion. It is a harm to religion, and a way to
undermine its strength I believe ultimately.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Cornyn. Senator Sessions.
Senator Sessions. Sorry, I had to be in another meeting for
a few minutes.
I do not know where we are going with all of this, but I
agree with you, Mr. Chairman, that the Supreme Court is
confused, and when we have the Senate commence every day with a
prayer by a paid chaplain, and when you look right out of that
chair and onto the wall it says, ``In God we trust,'' in the
wall of the United States Senate. And then we are told a little
child cannot pass out a pencil that says ``Jesus loves me'' on
it, and we cannot have the Pledge of Allegiance. It just
realizes that we are confused.
Mr. Munoz, I remember the night the Ninth Circuit rendered
its ruling, and the leaders of the Democratic Party raced down
to the floor to denounce the Ninth Circuit and how bad the law
was and all this, and I remember saying that night that I was
not sure that they were that far away from much of the
precedent of the U.S. Supreme Court because it is so messed up.
How can we get out of this? We do not need these confused
standards it seems to me. I remember, Mr. Chairman, former
Attorney General of the United States Griffin Bell, under
President Jimmy Carter, was in Alabama in a State Bar
Association, and he was asked a question about, really he was
asked a question about President Reagan's nominees, and they
thought he would be critical of them, and he walked up to the
microphone and shocked everybody. He said, ``Well, we do not
need a judge on the Supreme Court, on the Federal Bench that
does not believe in prayer at football games.'' I mean why does
anybody care if somebody has a voluntary prayer at a football
game? Are they going to send in the 82nd Airborne? I mean this
is something that really you do not have to bow your head. If
it means something to somebody to have a blessing for the
senior citizens in Texas, to have a blessing before they have
their meal, who is concerned about this? Of what great threat
to liberty is this? They are in a senior citizens center,
Federal and State money I suppose helped fund it, so now they
cannot say a blessing? So really I am just confused.
And these legislation by Senator Allard and Senator Shelby
represent real frustration with the state of the law. The
American people ultimately control this country. It is not the
Federal Courts. They do not get to set policy in America. They
are required to enforce the constitutional provisions, and I
think they are out of sync with it really.
Having said all of that, I am not sure what my next
question would be.
[Laughter.]
Senator Sessions. Why can we not get back to the way we ran
this country for 150 years? If people should show respect for
one another's religion, if people continue to be offended, as a
gentleman was here, by sectarian prayer, although it is not an
excessively sectarian prayer. Jesus was Jewish and it was
fundamentally a Jewish prayer. But at any rate, it was a prayer
that concerned him, and they kept doing it so much that it
represented a concern in a public event, and it is good to
listen to your concerns, but if nobody is upset about this, are
we not creating too much Federal Government influence? Can we
not draw back and allow people to behave naturally and only
assert the governmental interest in serious cases? Can you all
briefly give a comment on that?
Mr. Garnett. There is a lot to address there, Senator. On
the question of endorsement though, you raise an important
point. You ask what can we do? I suggest two things. The first
would be to remember that as much as we should worry about
government endorsements that might be coercive of religion,
there is a flip side to that coin which has come up in several
cases, and Justice Thomas has been very eloquent about this,
that you do not want to communicate to children that their
religious beliefs are disfavored. You do not want to
communicate to children that the State endorses aggressive
secularism. Neutrality has to be a two-way street, and I think
some of the cases you heard about today suggest that citizens
and particularly children are getting the wrong message from
government action, so that might be one place to look.
Another place, and my colleague Professor Munoz has talked
about this, one problem with the endorsement test and also the
coercion test is they get judges in this tricky business of
trying to gauge what is going on in people's psyches, you know,
do people feel excluded? Do people feel coerced? Would the
reasonable person perceive an endorsement.
Senator Sessions. With regard to Judge Moore, they got into
his head. They tried to figure out what he was intending when
he put the Ten Commandments there, rather than really precisely
the impact of a display of the Ten Commandments in a
courthouse. Excuse me, go ahead. It just makes it complicated
and difficult.
Mr. Garnett. One improvement on the doctrine might be--and
a lot of scholars have tried to make this point--that the Court
might be better off to look objectively at what the government
does, rather than at the subjective reactions of various people
to the government conduct. That might give us brighter lines in
these areas. How that would play out in Judge Moore's case, I
am not completely sure, but I do believe that the endorsement
test, one reason why it has sometimes led us astray is because
it is not anchored in anything other than subjective reactions
to government action.
Senator Sessions. Professor Rogers.
Ms. Rogers. Thank you. Two things. One is, on the equal
access point, I think the Court has come to sort of a critical
mass in saying that equal access is constitutional in the
schools, and with the Good News Club, they have applied it also
to community use of government property, which would cover Mr.
Clark's situation, as I understand it.
So I think a lot of good could be done right now in the
wake of the Good News Club case to say, look back at the
Mergens case, equal access law and Good News, and say, Listen,
there is basically an equal access principle. It is actually
not that complicated. If you open up a forum on government
property to many different groups and have first-come first-
served rules, then you can let religious groups use that space,
and you just have to be careful that you are not giving it only
to the Christians or only to the religious groups. That will
not work.
But what we say is, we understand that that is not--the law
understands that that is not government endorsement of religion
just because it is on government property. That is a fairly
clear rule, and would curb almost--I have not counted up the
examples here, but I think quite a number of these would be
done away with just by clarifying that rule for people who
administer government property, whether it is school
superintendents or people who run senior centers.
So I would say that a lot of progress could be made right
there.
Senator Sessions. But you would say then that if the senior
citizens voted to singing ``You Are My Sunshine,'' and the
second most popular song they wanted to sing was ``Shall We
Gather At The River,'' they could not sing--
Ms. Rogers. No, no, that is fine. They can do whatever they
want in an equal access situation, and that is precisely why I
am so supportive of it.
Senator Sessions. Equal access, let us go back to this. I
am talking about a group of people that come to that center.
One of them may be Muslim. One may be Jewish, and 95 may be
Christian or do not care, and they are happy to sing ``Shall We
Gather At The River?''
Ms. Rogers. Thank you for that. That is helpful. What I am
thinking of is in a senior center--and I have helped somebody
work on this before--that the senior center that is city-owned
should essentially form clubs. There would be the club that
would get together and sing spiritual songs and hear from a
pastor. There would be another club that might talk about chess
or they might talk about fishing or something else that is of
interest to them. But it would be the equal access model
applied to a community setting, and I think the Good News Club
makes that possible, that case, and that is an excellent way to
solve it because then you do not have the government coming in
and say, that is a little too proselytizing, that is a little
too sectarian, no. They can do what they want to do, but it is
not endorsed by the government.
Senator Sessions. The government just does not need to come
in and say those things. If that is what they want to sing, let
them sing it.
Ms. Rogers. I agree with you on that point.
Senator Sessions. No. You are saying that you have to have
separate groups and then they can sing whatever they want to
sing, and what, if they sit in one corner of the room, they
have a blessing, and if they do not sit in that corner they
cannot have a blessing?
Ms. Rogers. No. I think they should structure it in an
equal access situation so that the groups have times to meet
and do what they want to with no government interference.
Senator Sessions. But you are saying that they have to
separate themselves unless everybody agrees, and that no
general public announcement of any gathering at the senior
center can have any hymn or prayer.
Ms. Rogers. I would say that the senior--
Senator Sessions. Any general announcement to the public.
Ms. Rogers. I would say that the senior center itself, what
it does as an official duty should not be to promote religion
or endorse religion. What it should do is say--
Senator Sessions. I am not talking--excuse me. I do not
want to argue, but--
Ms. Rogers. That is okay.
Senator Sessions. Go ahead. You are doing well and I should
not interrupt.
Ms. Rogers. That is all right. What I think would be most
productive and that I helped somebody encourage this, and I
believe the system was instituted, was they called all the--the
officials called everybody together at the senior center and
said, we have groups that would like to pursue different things
on senior center property, city-owned property, and we would
like to give everybody the opportunity to do that, so what we
are going to do is allow everybody to organize their own groups
with what they are interested in, whether it is gospel singing
or fishing or cooking, and we are going to have this room
available to your clubs on a first-come first-served basis. You
sign up. You can use the property. In fact, if you get us a
notice of your meeting, we will put that notice out just like
we would for the chess club or the fishing club.
We are not going to say this is something we are endorsing
or running. This is your club, this is your property. And that
negates any sense of Government promotion or endorsement of
religion.
Senator Sessions. Well, you know, that is just very
unsatisfactory to those of us in public life. It may be
theoretically fine with you, but it is not practical in the
real world. I am just telling you, what people believe they
have a right to do is somebody says a blessing before they have
a meal at the senior center, is not an establishment of a
religion, I don't think. I don't know how we get at this deal.
Mr. Munoz?
Mr. Munoz. I think this shows the problem with the
endorsement test. With the test, as the Supreme Court, as
Justice Sandra Day O'Connor has interpreted the Constitution,
you have to have a lawyer present in a senior citizen club to
explain when and how you can pray. That is where this test
leads until we get rid of the test. And let me just add the
Constitution, the First Amendment, says nothing about an
endorsement of religion. It is not that complicated. The
Constitution says, ``Congress shall make no law respecting an
establishment of religion.'' An establishment of religion is
different from an endorsement of religion. We have replaced the
Constitution's text with an idea of endorsement which is
inherently confusing and ambiguous, which leads to litigation,
lawyer-dominated senior citizen clubs, and general hostility
towards religion. That is our problem, and until we return to
the text of the Constitution, all this is going to continue.
Senator Sessions. Well, I saw the little Muslim girl that
was so wonderful earlier. You know, if a group of people--I
believe in my school in the little town I went to in Alabama,
if their faith called on them to pray two or three times a day
and they had to do so in a certain fashion, I believe the
school would have made accommodations to them. I believe they
would have allowed them to do this. And we go on in a natural,
commonsensical way like we did for 150 years trying not to
offend people, to take seriously other people's differing
views. But I don't think most people are offended if somebody
has a slightly different theology than they do and they express
it in a prayer that is different than my theology or something.
But we are tolerant people.
Mr. Garnett. Senator, you mentioned your school in Alabama
and how they would be willing to accommodate. Yet another area
where the doctrine, the common law could really be improved is
if everybody realized that it is not an establishment of
religion to accommodate religion. There are some scholars and
some Justices who seem to be under the misimpression that if
you accommodate, you are establishing. And that is certainly
not the case and I think, again, an area where we could do
better, and the law would be to make that clear.
Ms. Rogers. But I would also say that the Court has found
in the Amos case--and I know Rick is familiar with this case.
They found that the Title VII accommodation that allows
churches to hire and fire on the basis of religion, that that
is appropriate accommodation.
I would just go back--I actually believe that the
principles that I described with the senior citizens, as far as
I know, they were implemented in this one situation because it
was before the Good News Club. And I remember thinking I think
I can help someone come up with a policy here that allows
robust religious expression and is also constitutional. So I
would disagree or would beg to differ to say that these
principles aren't practical. I think that there is a lot that
can be done to help Government officials understand this equal
access principle and to allow robust religious expression in
public spaces.
Senator Sessions. What if you had an agreement at the
senior citizens center that the 95 people who wanted to sing a
hymn and say a blessing would get the biggest room when they
got their meal and the people who didn't want to would be given
a smaller room?
Ms. Rogers. That would not be good legal advice, I don't
think, to give to anybody.
Senator Sessions. Why not?
Ms. Rogers. Well, that sends a very strong message about--
Senator Sessions. That is what you are saying, if you get
the room--you get the room, you can have a room and ask for it,
and you can have your religion.
Ms. Rogers. It sends a strong message to people who are
given a closet and the other people who are given the main
auditorium--
Senator Sessions. Maybe it is a nice room.
Ms. Rogers. What?
Senator Sessions. Maybe it is a nicer room.
Ms. Rogers. You are bringing it up some for me here. But I
think that it has to be on a first-come, first-served basis. It
has to be, you know, basically equal kind of settings that they
would provide, or you are expressing favoritism for perhaps one
religion over another in that situation, or perhaps religion
over non-religion.
Senator Sessions. You give people who need the largest room
the larger room and the people who need the smaller room with a
different--
Ms. Rogers. That might be--I think now we are getting back
in territory that is safer when you say, well, you only have 12
people so you don't need it. So it is a non-discriminatory
reason. I am sorry. I misunderstood you. Then if it is a non-
discriminatory reason, that makes sense. But one of the things
that I just want to follow up on before we leave that point is
I really do sincerely believe that to have Government promoting
religion hurts religion. And one of the things that I
remember--John Leland, a Baptist minister back in the founding
days of our country, I think it is important for us to remember
when we are talking about especially with the faith-based
initiative, with the Government funding, sending grants and
contracts to churches. What the Government funds it regulates,
and this is going to become a situation where churches are
closely regulated by the state. And not only that, but Leland
would often recognize that this Government--this religious
dependence on Government to run its programs ended up
corrupting religion. And he said in one of the quotes, ``The
great doctrines of universal depravity, redemption by the blood
of Christ, regeneration, faith, repentance, and self-denial,
are seldom preached by these churches that are funded by the
government. They just are things to them, of course.'' That is
what he says, these great doctrines become something that
aren't vital anymore. They just become something that are
things to them.
And so I think it is really important to remember,
especially when we are talking about Government grants and
contracts with churches, that the Government is going to
regulate the churches; the Government's funding of them is
going to create a dependence of the churches on the Government.
And I believe in the end that creates for us a situation in
which churches and religion are more creatures of the state
than creatures of God. And that is a problem.
Senator Sessions. I am sorry, Mr. Chairman. I went over my
time.
Chairman Cornyn. Well, this has been a fascinating
discussion, and if it were up to me, we could continue for a
lot longer. I am sure we wouldn't solve all our problems, but
it has been fascinating and I appreciate the contribution each
one of you has made.
What I worry about is that what we are telling people
across the country is, yes, there are some rules, but if you
have the time and the money to hire a lawyer to help you figure
it out and give you legal counsel so you can conform your
conduct in a way that, yes, you might probably win a legal
challenge that goes all the way to the United States Supreme
Court, you might be all right. But if you don't, then the
easiest thing for you to do is just to leave and vacate this
public arena where I believe that there are many people who are
frustrated that the public arena in America and across the
world today are full of all sorts of messages from sex to
violence and the like. I know it is a big frustration on the
part of parents. You can talk about just about anything except
your faith because of what I view to be somewhat contradictory
rules that have come out of the United States Supreme Court.
And I agree with Senator Sessions--I believe it was Senator
Sessions who said some of the legislation that you have seen
and that Senator Shelby and others have talked about in terms
of jurisdiction stripping are a manifestation of the
frustration that we feel on behalf of our constituents for how
do we get ourselves out of this box. It is unlikely that the
members of the United States Supreme Court, once they have
embraced a test--which is, in my view, wholly made up, but it
is, nevertheless, their test and they are going to use it every
time a case goes to the Supreme Court. How do we get ourselves
back to some sort of practical, predictable understanding of
what the rules are so that people can understand what is
required of them and what the rules are and then conform their
conduct in a way that lets them avoid litigation and yet
respects their right to express--to speak their religious views
or faith in a public forum.
So I would just ask in closing for our legal scholars here
to continue to think about these issues, and if you have
anything you would like to share with us by way of suggestions
or ideas--part of the problem is, of course, because these are
constitutional tests, it is hard for the legislature to make
much of a dent in this sort of thing. But maybe there is a role
you can think of for us to play in trying to find a way out of
this thicket.
Senator Sessions. Mr. Chairman?
Chairman Cornyn. Senator Sessions?
Senator Sessions. There was one question I meant to ask and
wanted to ask that was about the Boy Scouts. I was a member of
the Boy Scouts. And they don't really practice religion, but
they have certain moral principles and a belief in God. On my
oath, I will do my duty to God and my country. Obey the Scout
laws. Help other people at all times. They are getting--what do
you call it?--hostilized in the public square. So I might do
that in writing. I don't want to go into any long thing, but if
any of you had a brief comment, Mr. Garnett or--
Mr. Garnett. If you are referring to the case out in
California where the Boy Scouts lost their lease on public land
because they were deemed to be a religious group, I guess I
share your reaction to it. It strikes me as a mistaken action.
The Boy Scouts are a private association that enjoy First
Amendment rights to express themselves and to embrace the
messages that they like to. And San Diego is not establishing a
religion merely by permitting the Boy Scouts to do their thing
on public land.
Senator Sessions. And that was the peg they hung it on,
establishing a religion. I remember, Mr. Chairman, before you
came to the Senate, not long after I did, the Washington Zoo
would not allow the Boy Scouts to have a Court of Honor, at the
Washington, D.C., Zoo because of their affirmation of faith,
apparently, or maybe their standards of behavior they expected
of their scoutmasters. But they did it on, I think, separation
of church and state and backed down after Eagle Scout Senator
Mike Enzi started up and questioned it and challenged it, and
they finally retreated. We are off base here somewhere.
Mr. Munoz, did you want to comment?
Mr. Munoz. This is the problem, what you are pointing to is
the problem with the endorsement test, because Government
cannot endorse religion. Well, if we allow the Boy Scouts who
promote this moral code to meet on our grounds or if we
acknowledge the Boy Scouts in some way, someone might think we
are endorsing religion and, therefore, we need to keep them out
of the public arena. And that is the logic of the endorsement
test. And because, look, you can get sued, better just to avoid
the whole thing, better to keep the Boy Scouts away, and that
way we won't get sued, and that way we won't face litigation.
And because it is so easy to sue under these standards and have
a real case under these standards, that is what leads to
hostility in the public square, hostility against the Boy
Scouts, or anyone else who expresses religious sentiment.
Chairman Cornyn. We will have to end there.
In closing, I would like to thank all the panelists and the
Members of the Subcommittee who have been here today, and also
to thank the Chairman, Chairman Orrin Hatch, for scheduling
this hearing, and Senator Feingold for his usual cooperation
and dedication.
As I stated earlier, we will leave the record open until
5:00 p.m. next Tuesday, June the 15th, for members to submit
additional documentation or ask questions. I would also say if
there is additional written testimony or other things that
witnesses would like to tender, we will also make those part of
the record if they are relevant to what we are talking about.
With that, this hearing of the Senate Subcommittee on the
Constitution, Civil Rights and Property Rights is adjourned.
[Whereupon, at 5:24 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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