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93–282 PDF 2015

RELIGIOUS FREEDOM RESTORATION ACT AND 

THE RELIGIOUS LAND USE AND 

INSTITUTIONALIZED PERSONS ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 13, 2015 

Serial No. 114–9 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

FEBRUARY 13, 2015 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

The Honorable Bob Goodlatte, Jr., a Representative in Congress from the 

State of Virginia, and Chairman Member, Committee on the Judiciary ........ 4 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 5 

WITNESSES 

Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Nelson Tebbe, Professor of Law, Brooklyn Law School 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

Craig L. Parshall, Special Counsel, American Center for Law & Justice 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 48 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 75 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from the Anti-Demation League (ADL) ...................................................... 90 

Prepared Statement of Kimberlee Wood Colby, Director, Center for Law and 

Religious Freedom, Christian Legal Society ...................................................... 96 

Prepared Statement of Carl H. Esbeck, R.B. Price Professor and Isabelle 

Wade & Paul C. Lyda Professor Emeritus, School of Law, University of 

Missouri ................................................................................................................ 111 

Prepared Statement of Rachel Laser, Deputy Director, Religious Action Center of Reform Judaism ......................................................................................... 123 
(IV) 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Material for the Record submitted by the Honorable Steve Cohen, a Representative 

in Congress from the State of Tennessee, and Member, Committee on the Judiciary. This material is available at the Subcommittee and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=102957 

Laycock Amicus Brief: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=102957 
(1) 

RELIGIOUS FREEDOM RESTORATION ACT 

AND THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT 

FRIDAY, FEBRUARY 13, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:37 a.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, DeSantis, Gohmert, 

Jordan, Cohen, Conyers, Nadler and Deutch. 

Staff Present: (Majority) John Coleman, Counsel; Tricia White, 

Clerk; (Minority) James Park, Subcommittee Chief Counsel; and 

Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. 

Good morning. The quest for true religious freedom is one of humanity’s greatest and most enduring dreams. Indeed, America’s 

forebears fled the tyrannies of religious oppression abroad in the 

longing hope that America would be the place where they would 

find that freedom yearned for in every human heart to live according to the convictions of their faith. 

Our Founding Fathers recognized and protected this 

foundational human right by enshrining it forever in the very first 

amendment to the United States Constitution. It states very simply 

and clearly that ‘‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’’ 

Those noble, straightforward words, because of their enormous 

meaning and implication, have often been the target of distortion 

and attack. In 1990, the Supreme Court handed down the Employment Division v. Smith decision. It set the bar so low in allowing 

for the Government’s infringing on religious freedom, that in many 

cases individuals could not successfully challenge overreaching 

laws that contradicted their faith. The Smith decision was widely 

regarded as one of the most radical departures from this long-settled Constitutional doctrine in American history. 
2 

In response to the Smith decision, with incredibly broad bipartisan support, Congress passed the Religious Freedom Restoration 

Act in 1993. That law restored the pre-Smith compelling interest 

standard, and along with it, religious liberty in America. 

And in 2000, in direct response to another Supreme Court decision that threatened religious liberty, Congress passed the Religious Land Use and Institutionalized Persons Act, which prohibits 

the application of neutral and generally applicable laws in ways 

that substantially burden religion related to zoning, land marking, 

and prisons. 

In his written testimony before the Senate Judiciary Committee 

on September 18th, 1992, Professor Douglas Laycock stated, ‘‘there 

is a simple reason why formerly neutral laws sometimes lead to religious persecution: because once government demands that religious minorities conform their behavior to secular standards, there 

is no logical stopping point. Sometimes the government will back 

off and create an exemption, but often the bureaucracy will grind 

forward, and persecution will be the result.’’ 

These critical statutes exist today because a broad group of lawmakers, organizations and Americans from both sides of the aisle 

believe that religious freedom was and is far more vital than that 

afforded by those profoundly flawed Supreme Court decisions. Support for religious freedom remains one of the very strongest commitments of the American people. According to a December 2012 

Gallup Poll, nearly 70 percent of American adults are very religious 

or moderately religious, based on self-reports of the importance of 

religion in their daily lives and attendance at religious services. 

Despite its critical importance to our Republic and a clear message from Congress and the American people, this current Administration’s attitude toward religious freedom is nothing short of 

alarming. The Obama administration has consistently failed to recognize that religious liberty involves much more than the freedom 

to believe in any religion or none at all, rather, that religious liberty is exercised both in private and in public, informing all areas 

of an individual’s life. 

Religion in the United States has never been forcibly confined to 

one’s church or one’s home. In spite of the Constitution’s clear provisions for the accommodation of religion, this Administration has 

repeatedly failed to create and honor needed religious exemptions 

from otherwise neutral laws. 

In the last 3 years, the United States Supreme Court has ruled 

in favor of religious plaintiffs and against this Administration five 

times. Indeed, three of those five cases have been unanimous. This 

is stunning evidence of the Obama administration’s failure to honor 

religious freedom in America. 

My friends, the central phrase, the central phrase of America’s 

Declaration of Independence is itself a statement of religious conviction. It states clearly that we are all created, and that is what 

makes us equal, and further, that each of us is endowed by our creator with the unalienable rights of life, liberty and the pursuit of 

happiness. It is so unfortunate that we must repeatedly remind the 

Obama administration that religious freedom is the very cornerstone of all other freedoms and that if it is lost, all other freedoms 

will ultimately be lost with it. 
3 

I look forward to today’s examination of the Religious Freedom 

Restoration Act and the Religious Land Use and Institutionalized 

Persons Act. And I would like to thank our witnesses for being 

here. 

And I will now yield to the distinguished Ranking Member of the 

full Committee for an opening statement. 

Mr. CONYERS. Thank you, Chairman. 

Members of the Committee, religious freedom, of course, was one 

of the core principles upon which our Nation was founded. This 

freedom was important enough that protections against unwarranted government intrusion into religious practice was enshrined 

in the First Amendment to our Constitution, and that is also why, 

after the Supreme Court in Employment Division v. Smith eliminated the compelling interest test for scrutinizing free exercise 

clause claims, a bipartisan coalition helped to shepherd the Religious Freedom Restoration Act of 1993 into law to restore those 

earlier protections. 

The act has successfully helped to protect religious liberty over 

the last generation, yet recent developments have been troubling 

for those of us who believe that exemptions from generally applicable laws shouldn’t be used to undermine women’s health or the 

guarantee of equal treatment under the law. Unfortunately, in my 

view, the Supreme Court subverted congressional intent and undermined the act’s purpose in Burwell v. Hobby Lobby. In that decision, the court held that for-profit corporations were entitled to an 

exemption under the Religious Freedom Restoration Act from the 

Affordable Care Act’s contraception mandate because of the corporate owner’s religious objection to the mandate. 

To reach that holding, the court had to conclude that the precedents governing the Free Exercise Clause prior to Smith no longer 

governed interpretations of the Religious Freedom Restoration Act. 

That conclusion, to me, is contrary to what Congress intended 

when it passed the act. Indeed, the statute itself unambiguously 

made clear that its purpose was to restore the compelling interest 

test that applied to governmental burdens on the free exercise of 

religion prior to Smith. 

Pre-Smith law was clear that commercial enterprises were not 

entitled to religious exemptions under the Free Exercise Clause. 

Also, as Justice Ginsburg noted in her strong dissent, no Constitutional tradition nor any prior decision interpreting this act allowed 

religious exemptions when such an accommodation harmed third 

parties. Yet that is exactly what happened in Hobby Lobby when 

the court denied contraceptive coverage to the company’s women 

employees and shifted the costs of Hobby Lobby’s religious accommodation onto those women. 

A particularly troubling implication of the court’s broad and unsupported interpretation of the Religious Freedom Restoration Act 

is that for-profit commercial entities can now seek exemptions from 

other generally applicable laws, including anti-discrimination laws. 

This clear threat to anti-discrimination laws could include efforts 

by businesses to exempt themselves under State versions of the Religious Freedom Restoration Act from State and local laws prohibiting discrimination on the basis of sexual orientation or gender. 
4 

It could also manifest itself in efforts by for-profit businesses to 

exempt themselves from any Federal efforts to combat discrimination against members of the lesbian, gay, bisexual and transgender 

communities, such as President Obama’s executive order prohibiting discrimination against such individuals who are employees of 

Federal contractors. 

And notwithstanding the assurances of the court’s Hobby Lobby 

majority, it is entirely possible that a business claiming a sincerely 

held religious belief, for example, in White supremacy, could justify 

exemptions from Federal civil rights laws. 

At the very least, we in Congress must examine how the Religious Freedom Restoration Act can be amended to address the very 

problematic reasoning of the Hobby Lobby decision. 

While there is broad bipartisan support for the Religious Freedom Restoration Act and for strong protection of religious liberty, 

we have to acknowledge that we live in a pluralistic and religiously 

diverse society. 

The act was meant to protect all, not to favor some at others’ expense, and so at a minimum, we here should amend the act to address third-party harm to make clear that pre-Smith Free Exercise 

Clause precedents apply and limit the act’s interpretation. 

I thank you, Mr. Chairman. 

I yield back the balance of my time. 

Mr. FRANKS. And I thank the gentleman. 

And I now yield to the Chairman of the full Committee, Mr. 

Goodlatte, from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

In 1777, Thomas Jefferson drafted a bill for establishing religious 

freedom. Introduced in the Virginia General Assembly in 1779, it 

was enacted into law on January 16, 1786, as the Virginia Statute 

for Religious Freedom. Last month we honored the Virginia Statute 

for Religious Freedom’s 229th anniversary. 

This Virginia law remains relevant today. In addition to being a 

model for the Free Exercise Clause of the First Amendment, its 

language continues to provide wisdom. The statute, for example, 

states in part, the opinions of men are not the object of civil government, nor under its jurisdiction. 

This morning the Subcommittee on the Constitution and Civil 

Justice will examine the Religious Freedom Restoration Act and 

the Religious Land Use and Institutionalized Persons Act. These 

two laws are vitally important means of protecting religious liberty 

in the United States and individuals’ opinions from an interceding 

government. 

The Religious Freedom Restoration Act prohibits the Federal 

Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability. The exception is that the government may burden a person’s 

exercise of religion only if it demonstrates that application of the 

burden to the person, one, furthers a compelling governmental interest, and two, is the least restrictive means of furthering that 

compelling governmental interest. 

I cosponsored this legislation when the Religious Freedom Restoration Act passed the House and Senate and was signed by the 

President in the 103rd Congress, and I was amazed at the incred-
5 

ible bipartisan support the bill generated. Senator Charles Schumer, who was then representing the Ninth District of New York in 

the House and a Member of this Committee, introduced the bill. By 

the time the bill passed by a voice vote, it had the support of 170 

cosponsors from both sides of the aisle. 

A diverse array of organizations formed a bipartisan coalition to 

support this bill. This coalition included over 50 organizations, including the American Civil Liberties Union, Americans United for 

the Separation of Church and State, the Home School Legal Defense Association, the Traditional Values Coalition, Concerned 

Women for America, and the Christian Life Commission of the 

Southern Baptist Convention. It was incredible to see all sides 

come together for such an important piece of legislation. 

Reflecting the same language as the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act 

prohibits any government from imposing or implementing a land 

use regulation in a manner that places a substantial burden on the 

religious exercise of a person, including a religious assembly or institution, unless the government demonstrates the burden, one, is 

in furtherance of a compelling governmental interest, and two, is 

the least restrictive means of furthering that compelling governmental interest. 

It provides a similar religious protection for institutionalized persons, including prisoners. Congress made it clear that the Federal 

Government must provide religious accommodations in our laws, 

and any laws passed that infringe upon religious freedom must be 

subject to the strictest scrutiny in our courts. 

And while religious liberty remains threatened, I am nevertheless encouraged by recent Supreme Court decisions in favor of religious plaintiffs. These cases indicate the religious protections 

passed by Congress are working. While not determining the outcome of any case, these crucial statutes provide individuals with 

practical and meaningful ways to challenge government infringements on their religious beliefs in court. 

I want to thank all of our witnesses for coming today and I look 

forward to their testimony. 

Thank you, Mr. Chairman. 

Mr. FRANKS. And I thank the gentleman. 

And I now yield to the Ranking Member of the Subcommittee, 

Mr. Cohen, from Tennessee. 

Mr. COHEN. Thank you, Mr. Chairman. 

Today is the first hearing of this particular Subcommittee, and 

I am the Ranking Member again, and I appreciate that opportunity 

to serve, and I appreciate serving with Chairman Franks. We have 

served together as Chair and Ranking Member, and this is a Committee that gets some very emotional issues where people have 

strong opinions on each side, and yet Mr. Franks has always remained civil and respectful toward the—our side, despite the fact 

that his opinions are light years away. It is a large universe and 

we encompass it, but we do it in a good manner, and I appreciate 

that. 

The freedom to practice one’s religious free from undue governmental influences is particularly special in American history, and 

the First Amendment guarantees the right to freedom of religion, 
6 

along with speech and petition, and our First Amendment protections. And Thomas Jefferson, as Mr. Goodlatte mentioned, he is a 

big fan of Jefferson’s, as am I, has on his resting place in Virginia 

three things: that he was the father of the Constitution, that he 

was the founder of the University of Virginia, and that he was the 

author of the declaration of religious independence or freedoms; 

nothing about being President or Secretary of State or any of those 

things, they were mundane, because it was values and ideas and 

education and liberty and freedom that was so important to him. 

He has on the Jefferson Memorial, of course, he doesn’t have 

this, the descendants have this, one of his particular quotes is that, 

‘‘I swear upon the altar of God eternal hostility toward all forms 

of tyranny over the mind of man.’’ 

It is important that we understand that as our Founding Father’s legacy and that we adhere to it, and we did in passing the 

Religious Freedom Restoration Act here. I was not here at the 

time. Mr. Goodlatte was. 

But I was in the Tennessee State Senate, and I passed the Tennessee RFRA law and I was proud to do it. And there was that 

great coalition, as he mentioned here, of the ACLU to the Southern 

Baptist Convention, or something associated therewith, and all 

kind of diverse religious groups and folks about the First Amendment were all for it. And that was wonderful. And it was about, 

really, Employment Division v. Smith, and it was a direct reaction 

to that case that RFRA was passed with this broad bipartisan support and that we passed it in Tennessee as well. 

Unfortunately, our Supreme Court, in its corporatization of 

America, which of course has also been part of the work of this 

Congress, took religious freedom from the ideas that were really 

held by Jefferson and others about individuals being oppressed by 

the government and gave it to corporations, and nobody had ever 

envisioned that, like nobody had envisioned corporations having 

the right to have free speech, free speech in the thousands and 

hundreds of thousands and millions of dollars to influence legislation and who gets elected and how the laws are made so that the 

tax rates are appropriate for those who have much so they could 

have much more and do much more trickle-down. 

So the corporatization of America has taken place, and the courts 

did it in this case, and that is what happened and what broke 

apart that great bipartisan coalition that we were so proud of in 

passing RFRA. 

To be concerned about the Hobby Lobby case, which is part of a 

whole series of cases with the Supreme Court and legislative actions that nobody would have envisioned, giving corporations rights 

and worshiping to the altar of the corporate god does not mean you 

are against religion. You can still be for religion. 

And I am for religion and I’m for the separation of church and 

state and I’m for the First Amendment and I’m for RFRA as it was 

envisioned when it was passed and restore those pre-Smith laws, 

but the Hobby Lobby decision was aberrant, and that’s why I and 

many other people who have deep—thought and felt commitments 

to religious liberty oppose Hobby Lobby decision, they still believe 

in RFRA, and they just think RFRA went too long. 
7 

It was an activist court, activist in the worst way, activists that 

gave powers to people that we never envisioned; not activists that 

went far to give minorities opportunity and minorities rights. It 

went far to give corporations rights. That’s the wrong type of activism, in my opinion. 

But I look forward to this hearing and listening to all of the witnesses and working with Mr. Franks as we go forward. 

Mr. GOODLATTE. Would the gentleman yield? 

Mr. COHEN. Yes, sir. 

Mr. GOODLATTE. I thank the gentleman for yielding. 

I appreciate his admiration of Thomas Jefferson, as I have. 

I do want to get his tombstone correct, though. He did—he is 

identified on his tombstone as the author of the Declaration of 

Independence and the Virginia Statute for Religious Freedom, but 

he did not have any involvement in the writing of our Constitution. 

He was our ambassador to France. Instead, the third item is the 

establishment—— 

Mr. COHEN. University of Virginia. 

Mr. GOODLATTE [continuing]. Of the University of Virginia. 

Mr. COHEN. I thought I said that. Let’s take a vote. How many 

of you think I said University of Virginia? Raise your hand. You’re 

right. Vote’s over. 

Thank you, though. 

Mr. GOODLATTE. I thank the gentleman. 

Mr. FRANKS. The man is from Virginia. 

Let me now introduce our witnesses. Our first witness is Lori 

Windham, senior counsel at the Becket Fund For Religious Freedom—for Religious Liberty. Ms. Windham has represented a variety of religious groups at every level, from the district courts to the 

Supreme Court. Her work includes the cases under the Free Exercise Clause, Establishment Clause, RFRA, and RLUIPA. We’re glad 

you’re here. 

Our second witness is Gregory Baylor, senior counsel with Alliance Defending Freedom. Mr. Baylor litigates cases to protect the 

rights of religious students, faculty and staff at public colleges and 

universities across the Nation. Prior to joining Alliance Defending 

Freedom in 2009, he served as director with the Christian Legal 

Society Center for Law and Religious Freedom, where he defended 

religious liberty since 1994. 

Our third witness, Professor Nelson Tebbe, teaches courses on 

Constitutional law, religious freedom, legal theory, and professional 

responsibility at Brooklyn Law School. Professor Tebbe is a co-organizer of the annual Law and Religion Roundtable and has previously served as the chair of the Law and Religion section of the 

Association of American Law Schools. 

Our fourth and final witness, Craig Parshall, is special counsel 

to the American Center for Law and Justice. In addition to being 

a senior law and policy advisor to Washington, D.C.-based groups, 

Mr. Parshall writes and speaks about trends in Constitutional 

issues, culture, religion and media technology. He previously 

served as senior vice-president and general counsel at National Religious Broadcasters and was the founding director of the John Milton Project for Free Speech. Welcome, sir. 
8 

Now, each of the witness’ written statements will be entered into 

the record in its entirety, and I would ask each witness to summarize his or her testimony within 5 minutes or less. To help you stay 

within that time, there is a timing light in front of you. The lights 

will switch from green to yellow in concluding, indicating that you 

have 1 minute to conclude your testimony. When the light turns 

red, it indicates that the witness’ 5 minutes have expired. 

Before I recognize the witness, it is the tradition of the Subcommittee that they be sworn. So if you’d please stand to be sworn. 

Do you solemnly swear that the testimony that you are about to 

give will be the truth, the whole truth and nothing but the truth, 

so help you God? 

You may be seated. 

Let the record reflect that the witnesses answered in the affirmative. 

I now recognize our first witness, Ms. Windham. And, Ms. 

Windham, if you want to make sure we turn on that microphone 

before you start. Yes, ma’am. 

TESTIMONY OF LORI WINDHAM, SENIOR COUNSEL, 

THE BECKET FUND FOR RELIGIOUS LIBERTY 

Ms. WINDHAM. Thank you, Chairman Franks, vice-chairman 

DeSantis, and other distinguished Members of the Subcommittee. 

Good morning. 

Thank you for the invitation and opportunity to testify on the importance of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. 

I represent the Becket Fund for Religious Liberty, where I serve 

as senior counsel. The Becket Fund is a non-profit public interest 

law firm dedicated to protecting the free expression of all religious 

traditions. For over 20 years, it has defended clients of all faiths, 

including Buddhists, Christians, Jews, Hindus, Muslims, Native 

Americans, Sikhs and other faith groups. 

Its recent cases include three major Supreme Court victories: a 

unanimous ruling in a RLUIPA case, Holt v. Hobbs; the RFRA case 

of Burwell v. Hobby Lobby; and another unanimous ruling in Hosanna-Tabor v. EEOC. 

Today I’d like to highlight the positive impacts of RFRA and 

RLUIPA for protecting the rights of Americans of all faiths, well 

known and little known, large and small. One example. According 

to documents released by the Department of the Interior, the department had an operation called Operation Pow-Wow. 

Under Operation Pow-Wow, the department sent an undercover 

Federal agent to covertly enter a sacred Native American religious 

ceremony. While there, he questioned the participants, observed 

the ceremony, refused to leave after being asked to do so. The reason for this, the department was looking to see if the Native Americans in their religious ceremony were using permitted or non-permitted eagle feathers. The Becket Fund now represents Robert 

Soto, a renowned feather dancer and ordained religious leader in 

the Lipan Apache tribe, a tribe that has used eagle feathers as sacred emblems for centuries. 

Federal law grants eagle feather permits to museums, scientists, 

zoos, farmers and other interests. It even allows wind farms to kill 
9 

eagles. The Federal Government grants permits for some religious 

uses, but only if the person is a member of a federally-recognized 

tribe. Mr. Soto’s tribe is recognized by historians, sociologists and 

the State of Texas, but not by the Federal Government. He is not 

even allowed to use loose eagle feathers picked up off the ground. 

Applying RFRA and Hobby Lobby precedent, the Fifth Circuit 

ruled against Operation Pow-Wow and for Mr. Soto. Mr. Soto is 

currently continuing his case in Federal court. As this case shows, 

RLUIPA’s protections, RFRA’s protections are still vital today. 

When RFRA was passed in 1993, the bill was supported by one 

of the broadest coalitions in recent political history, with 66 religious and civil liberties groups, including Christians, Jews, Muslims, Sikhs, humanists, and secular civil liberties organizations. 

RFRA passed with unanimous support in the House and virtually 

unanimous support in the Senate. 

RLUIPA, like RFRA, was enacted with overwhelming bipartisan 

support. It passed both the House and Senate by unanimous consent. In his signing statement, President Clinton noted that 

RLUIPA once again demonstrates that people of all political bents 

and faiths can work together for a common purpose that benefits 

all Americans. 

RLUIPA has provided critical protections for religious exercise. 

The Supreme Court’s recent decision in Holt v. Hobbs, another 

Becket Fund case, is an excellent example. There, the Supreme 

Court used RLUIPA to protect a Muslim prison inmate who sought 

to grow a religiously mandated half-inch beard. The Court recognized that government bureaucrats cannot use arbitrary double 

standards granting secular exemptions but not similar religious exemptions. 

The unanimous Supreme Court explained that RLUIPA affords 

prison officials ample ability to maintain security. At the same 

time, RLUIPA requires government officials to scrutinize the asserted harm of granting specific exemptions to particular religious 

claimants. This is consistent with the statement made by 

RLUIPA’s sponsors, Senators Hatch and Kennedy, who emphasized 

that inadequately formulated prison regulations and policies 

grounded on mere speculation, exaggerated fears, or post hoc rationalizations will not suffice to meet the act’s requirements. 

RLUIPA’s land use provisions have allowed houses of worship 

across the Nation to escape discriminatory or substantially burdensome land use restrictions. RLUIPA protected a Muslim congregation in New Jersey after the City labeled the proposed mosque a 

public nuisance and tried to seize its land. 

One of the earliest RLUIPA victories was for a Christian church 

in California when the City attempted to seize its land and build 

a Costco in its place. RLUIPA also protected a Sikh temple when 

a local government repeatedly gave contradictory reasons for denying its land use applications. 

Protection for religious freedom, even when religious practices 

conflict with otherwise applicable law, is an important part of our 

Nation’s history. We applaud Congress’ commitment to the principle that religious freedom is fundamental human freedom and 

human dignity. 
10 

I thank you for your time and I look forward to answering your 

questions. 

Mr. FRANKS. Well, thank you, Ms. Windham. 

[The prepared statement of Ms. Windham follows:] 
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Mr. FRANKS. And I would now recognize our second witness, Mr. 

Baylor. And, sir, please turn on your microphone. You got it. 

TESTIMONY OF GREGORY S. BAYLOR, SENIOR COUNSEL, 

ALLIANCE DEFENDING FREEDOM 

Mr. BAYLOR. Thank you. My name is Gregory Baylor and I serve 

as senior counsel with Alliance Defending Freedom, a non-profit 

legal organization that advocates for religious liberty, the sanctity 

of life, marriage and the family through strategy, funding, training 

and litigation. 

I appreciate very much the opportunity to testify today regarding 

the Religious Freedom Restoration Act and the Religious Land Use 

and Institutionalized Persons Act. I will focus my testimony on 

RFRA. 

In response to a damaging and unexpected Supreme Court decision, Congress restored robust legal protection for religious exercise 

when it enacted the Religious Freedom Restoration Act in 1993. 

The coalition supporting RFRA and the foundational principles underlying it was remarkably broad and diverse. 

Over 20 years later, support for those principles and perhaps for 

RFRA itself has notably waned in some quarters. Given this unfortunate development, I think, I believe that a look back at RFRA’s 

enactment and the circumstances surrounding it is warranted. 

Beginning in 1963, the United States Supreme Court held that 

government burdens on religious exercise violate the First Amendment’s Free Exercise Clause unless those burdens are justified by 

interests of the highest order. Under this approach, the court protected, for example, the rights of a Seventh Day Adventist who declined work on her sabbath, and it protected the rights of Old 

Order Amish families to make religiously-based decisions about the 

schooling of their children. 

In each case, the court understood that most government burdens on religious exercise come from facially neutral and generally 

applicable laws, ones that do not single out religion for especially 

disfavored treatment. The court acknowledged also that although 

important government interests were behind the laws in question 

in these cases, the State failed to prove that exempting these 

claimants would unacceptably danger what the court called paramount interests. The court also indicated that government could 

use other, less restrictive means to pursue its stated goals. 

The Supreme Court, of course, unexpectedly abandoned this approach to free exercise in 1990 in Employment Division v. Smith, 

as has been said. The court concluded that facially neutral laws of 

general applicability burdening religious exercise generally require 

no special justifications to satisfy Free Exercise Clause scrutiny. 

A large number of religious and civil rights organizations 

promptly formed the Coalition for the Free Exercise of Religion to 

urge Congress to restore strong legal protections for religious liberty. The 68-member, or 66- or 54-, I’ve heard different numbers, 

member coalition included the Baptist Joint Committee for Religious Liberty, the American Jewish Congress, Americans United 

for Separation of Church and State, Christian Legal Society, the 

American Civil Liberties Union, Agudath Israel of America, and 

the National Association of Evangelicals. The coalition drafted and 
23 

advocated for legislation designed to restore strict scrutiny to Free 

Exercise cases. Large numbers of Congressmen and Senators from 

both sides of the aisle co-sponsored RFRA. 

Lawmakers and advocates for the bill emphasized a number of 

key themes. First, they observed that pervasive governmental regulation adversely affects adherents of all faiths, large or small. 

Second, they stressed that RFRA merely set forth the relevant 

test that judges and other government officials should apply when 

examining claims of free exercise. RFRA didn’t dictate the results 

in particular cases. 

Third, and relatedly, and I think this goes to some of the comments that have already been made, Congress and RFRA’s diverse 

supporters were well aware that the statute’s protections might be 

relevant in cases involving emotionally charged, so-called culture 

war issues. 

Congress subsequently voted overwhelmingly to enact RFRA. It 

passed the Senate, as has been said, by a vote of 97 to 3, and it 

passed the House by unanimous voice vote. 

Now, recounting this history I hope will help serve as a corrective to the current impulse to doubt the wisdom of that Congress 

and of the very broad spectrum of individuals and organizations 

who labored to restore adequate legal protection of religious exercise. 

That impulse is driven in no small part by the Supreme Court’s 

relatively recent decision in Burwell v. Hobby Lobby Stores. In that 

case, of course, the court held that the Federal Government violated RFRA by threatening to impose crippling fines upon family 

business owners who refused, for reasons of conscience, to include 

abortion-inducing drugs and devices in their employee health 

plans. 

Unhappiness with the outcome of that case has contributed to a 

growing skepticism, even hostility, toward RFRA and its underlying principles; indeed, those that have—that would have partially 

repealed RFRA were introduced last summer in the wake of the 

Hobby Lobby decision. Thankfully, RFRA survived. 

I urge Congress to resist any further efforts to undermine the 

Religious Freedom Restoration’s Act indispensable protection of our 

first freedom. 

Thank you again for the opportunity to testify. I look forward to 

addressing any questions Members of the Subcommittee may have. 

Mr. FRANKS. And thank you, Mr. Baylor. 

[The prepared statement of Mr. Baylor follows:] 
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Mr. FRANKS. And I would now recognize our third witness, Mr. 

Tebbe. 

Mr. Tebbe, please turn your microphone on. 

TESTIMONY OF NELSON TEBBE, PROFESSOR OF LAW, 

BROOKLYN LAW SCHOOL 

Mr. TEBBE. Good morning, Chairman Franks and distinguished 

Members of the Subcommittee. 

Thank you for the opportunity, for allowing me to testify on these 

important questions of religious freedom and equality law. It’s an 

honor to be here, and I look forward to answering your questions. 

At least since the Supreme Court’s recent decisions in Hobby 

Lobby and Holt v. Hobbs, debate has been intensifying concerning 

the two statutes that we are discussing today, the Religious Freedom Restoration Act, or RFRA, and the Religious Land Use and Institutionalized Persons Act, or RLUIPA. 

In my testimony, I would like to highlight one problem with how 

RFRA has been applied, namely, the Hobby Lobby court shifted the 

cost of accommodating the employer’s religious beliefs onto the employees, who may not share those beliefs. That violated a core principle of Constitutional law. While ordinarily the costs of accommodating religious citizens are borne by the government or by the 

public, here those costs were shifted onto the shoulders of other 

private citizens. 

Protecting religious freedom is critically important, but it cannot 

come at the cost of meaningful harm to identifiable third parties. 

Not only should doing that be avoided as a policy matter, but it 

also violates the religion clauses of the Constitution. 

There are at least three ways that the Congress could address 

this problem. First, it could amend RFRA and RLUIPA to make 

them inapplicable when accommodating religious actors shifts 

meaningful harm to identifiable private citizens. 

Second, it could amend the statutes to make them inapplicable 

to commercial actors, which tend to have significant impact on individuals and on the public. 

Third, Congress could clarify that it did not intend RFRA and 

RLUIPA to break completely with judicial precedence under the 

Free Exercise Clause, case law that embodies the Constitutional 

principle I have been describing. 

Each of these changes would improve the statutes by ensuring 

that their application conforms with Constitutional principle 

against shifting costs of religious freedom for some private citizens 

onto the shoulders of other private citizens. 

In its Establishment Clause cases, the Court has invalidated 

laws that accommodate religious people by shifting costs to others. 

For example, the court invalidated a Connecticut statute that required all employers to allow employees who observe a sabbath to 

take that holiday off. The court held that Connecticut law ‘‘contravenes a fundamental principle of the religion clauses, namely, 

that the First Amendment gives no one the right to insist that in 

pursuit of their own interests, others must conform their conduct 

to his own religious necessities.’’ 

In its Free Exercise cases, similarly, the court has denied relief 

that would mean harming other private citizens. For example, the 
37 

court refused to grant an exemption to an Amish employer who is 

theologically opposed to paying Social Security taxes on behalf of 

his employees. The court held that granting the exemption would 

impose an unacceptable cost on the third-party employees. 

So this legal rule is grounded both in the Establishment Clause 

and in the Free Exercise Clause, and it’s properly part of RFRA 

and RLUIPA. 

The principal difficulty with the court’s landmark decision in 

Hobby Lobby is that it did not do enough to protect the company’s 

13,000 employees and their dependents. Doctrinally, the court reaffirmed the principle I have been describing, but nothing in the 

decision made its ruling contingent on the employees not being 

harmed, and, in fact, those employees are being harmed right now 

as we hold this hearing. 

Although the Obama administration is working on implementing 

the solution that the court suggested in its opinion, that solution 

has not yet been put in place. Not only employees at Hobby Lobby 

itself, but the employees at other companies affected by the decision are therefore currently without contraception coverage. These 

thousands of people have suffered harm that may well be irreparable, including unwanted pregnancies and other health problems 

that medical experts sought to address in the regulation. 

Importantly, not every accommodation of religion imposes harm 

on third parties; therefore, this limitation will not frustrate religious freedom writ large. A good example is the court’s recent decision in Holt v. Hobbs, which I applaud. There, a unanimous court 

held that RLUIPA required a prison to accommodate an inmate, 

who wished to grow a short beard for religious reasons. Allowing 

him to do that, despite the prison’s grooming policies, shifted no security risks to other fellow inmates. Justice Ginsburg, joined by 

Justice Sotomayor, wrote separately in Holt to emphasize both that 

third parties were harmed in the Hobby Lobby decision and that 

no one would be harmed by the decision in Holt v. Hobbs. 

As I mentioned, there are at least three ways that Congress 

could address this problem. The most direct way would be the one 

that Representative Conyers suggested: to amend RFRA and 

RLUIPA to clarify that religion accommodations are not available 

where extending them would shift meaningful harm to identifiable 

third parties. RFRA itself is in need of a restoration. This amendment would return its meaning to something that can claim much 

wider public and bipartisan support than the interpretation that 

the Supreme Court has given it in Hobby Lobby. 

Thanks very much for your time. 

Mr. FRANKS. And thank you, Mr. Tebbe. 

[The prepared statement of Mr. Tebbe follows:] 
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Mr. FRANKS. And I would now recognize our fourth and final witness, Mr. Parshall. 

TESTIMONY OF CRAIG L. PARSHALL, SPECIAL COUNSEL, 

AMERICAN CENTER FOR LAW & JUSTICE 

Mr. PARSHALL. And thank you, Mr. Chairman, and Ranking 

Member Mr. Cohen, and distinguished Members of the Subcommittee. 

On behalf of the American Center for Law and Justice, thank 

you for allowing me to address this very important subject of religious freedom under the Religious Freedom Restoration Act, RFRA. 

Like my colleague, I will focus specifically on RFRA in my testimony. 

I make three primary points. First of all, the language of RFRA 

must not be diminished. If anything, it ought to be expanded to 

apply to other situations, some of which I have mentioned in my 

written testimony. I believe, with all due respect, that all three of 

the suggestions of Professor Tebbe to amend RFRA would not only 

diminish, but probably substantially undermine the religious liberty rights recognized by RFRA. I’d be glad to address those in any 

questions that you’ve got. 

Second of all, the success of RFRA itself is proven in a number 

of different ways; first of all, by the cases that have been mentioned by my colleagues at the dais today, but also, of course, by 

the Hobby Lobby decision by the Supreme Court, but the necessity, 

the necessity of RFRA is proven by the Olympian, near impossible 

legal hurdle that a person has to pass in order to vindicate their 

religious rights without RFRA, ever since the Smith decision of the 

Supreme Court. And I’d just mention one case to prove my point 

about how high that hurdle would be, but for RFRA. The case was 

LeBlanc-Sternberg v. Fletcher, a Second Circuit Court of Appeals 

decision. 

Now, while RFRA was being debated in Congress, a village in 

New York state was being formed and a zoning code was being created, the evidence showed, for the specific purpose of keeping Orthodox Jewish citizens out of that area. Despite that, the U.S. District Court entered a judgment as a matter of law against the Orthodox Jewish plaintiffs. I was retained to argue the appeal in the 

Second Circuit Court of Appeals. We were fortunate to get that decision reversed and the religious rights of those Orthodox Jewish 

citizens were vindicated. 

But it was decided on a Free Exercise claim, not RFRA, because 

RFRA was not applied in that case. But the only reason that we 

prevailed is because the village officials made the mistake 

tactically of having a flood tide of anti-Semitic evidence in the 

record and then corroborated by the way in which they gerrymandered their zoning code to make sure that Jewish citizens 

could not have in-home synagogue worship. 

But that kind of a situation, individual specific targeting of religious groups, is very, very rare. Invidious anti-religious discrimination is usually much more covert than that, and without RFRA, religious rights in those situations would have absolutely no method 

of redress since the Smith case. In those cases, like the Holt case, 

the prison beard case, where there’s no evidence that there was in-
47 

tentional hostility against religious belief, more like a thoughtless 

bureaucratic decision-making that simply failed to understand the 

high value of religious freedom. 

And that brings me to my third point. RFRA, under the rubric 

of the statute, as correctly interpreted by the Supreme Court, simply says this: if a Federal regulation, statute or action impinges or 

substantially burdens the sincerely held religious beliefs of individuals, then the burden shifts to the government to prove, number 

one, that it has a compelling government interest, a very high 

standard, of an interest, a compelling interest that must overcome 

that religious burden on the individuals, and then number two, 

that there are no lesser burdensome alternatives that are available. 

Now, why is that burden-shifting appropriate? It’s appropriate 

only if you take a high view of religious liberty. If you take a low 

view, then you will shift, as Professor Tebbe has suggested, you 

will shift the burden on the religious person to defend themselves. 

And I don’t think that’s what the founders intended, and certainly 

that’s not what RFRA was all about. 

I pointed out in my written testimony the research data that 

shows how Nations globally around the world that have a high 

value placed on religious liberty have flourished, not only in terms 

of their economies, but in terms of innovation. I’ve also cited some 

of the clear data that indicates that religious America supports an 

entire private sphere of charitable giving that benefits local communities as a result of the religious liberty climate thus far, as we 

have allowed it to flourish. 

But, then, that should not come as any surprise. Our founders 

knew how preeminent religious freedom was and ought to be. They, 

in effect, have given us a sacred trust to protect it. Now the question is, will we honor that trust? 

Thank you. 

Mr. FRANKS. Well, thank you, Mr. Parshall. 

[The prepared statement of Mr. Parshall follows:] 
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Mr. FRANKS. And thank you all for your testimony. 

We will now proceed under the 5-minute rule with questions, and 

I will begin by recognizing myself for 5 minutes. 

Mr. Baylor, some have portrayed religious liberty recently as a 

conservative issue, and this was certainly the case after the Supreme Court’s decision in Hobby Lobby, and much of the written 

testimony here conversely focuses on the bipartisan efforts that 

passed RFRA. And so I’m wondering what, if anything, has 

changed? I mean, isn’t religious liberty a principle that every 

American should advocate for? 

What is the reason for the shift since the Hobby Lobby case? 

Mr. BAYLOR. Well, religious liberty absolutely is an issue that 

goes across the aisle and it goes across the ideological and religious 

spectrums. Professor Eugene Volokh recently published a piece in 

the Washington Post where he reminded us of the political history 

of religious exemptions, and he pointed out that in the 1960’s, 

when Justice William Brennan wrote the Sherbert v. Verner decision, this was essentially a—what might be characterized as a liberal project to put exemptions, to interpret the Free Exercise 

Clause to provide for exemptions from facially neutral, generally 

applicable laws. 

Second, and more fundamentally, as I said before, government 

regulation affects everybody. When you have a pervasive Federal 

Government, State government, local government, you can’t say 

that this regulation disproportionately affects Republicans rather 

than Democrats, conservatives rather than liberals, Christians 

rather than Jews, Muslims, Sikhs or whoever. That is not true. 

And that is an empirical reality. 

If you go and look at the cases in the reporters, it is simply not 

the case that most RFRA and RLUIPA cases are ones that are 

brought by people on one particular side of the spectrum. Just to 

give some examples, there was recently a law in Alabama that prohibited everyone, including churches, including the Archdiocese, 

in—the Catholic Archdiocese in Alabama from serving the needs of 

illegal immigrants. Well, they asserted a religious liberty defense 

to that law. And I don’t think one would characterize it as a conservative or right-wing issue. 

The other RFRA case that reached the Supreme Court prior to 

Hobby Lobby was the O Centro case, which involved a minority religion and its use of a scheduled drug in its religious ceremonies. 

And, finally, I think it’s worth noting, as Professor Gregory Sisk 

has pointed out, that members of minority religions tend to do better in RFRA cases than the larger religions in this country. So I 

don’t think that this is a right-left culture war kind of issue, and 

I think the bipartisan coalition that came together reflects that. 

Now, what has changed? I think the short answer is that some 

folks who were back in the coalition in 1993 have simply subordinated religious liberty to other interests and objectives. 

Mr. FRANKS. Well, thank you, sir. 

Mr. Parshall, as we’ve heard today, both the RFRA and RLUIPA 

have received the overwhelming bipartisan support at the time 

that they were enacted, and I think it’s important that we not lose 

sight of the reasons why. In your written testimony, you cite data 
63 

that shows a variety of economic benefits flowing to America, and 

that is if we protect religious freedom in a substantial way. 

Now, you’re not suggesting that recognizing religious freedom is 

a just a matter of dollar and cents, I know that, but is there a 

greater economic factor? Is this economic factor just part of really 

a bigger set of benefits that are recognized when a Nation defends 

religious freedom? 

Mr. PARSHALL. Thank you, Mr. Chairman. 

Yes. I think that you’ve—I think you’ve hit the nail on the head 

in the sense that while it isn’t just a matter of dollars and cents 

in terms of protecting religious liberty, we need to know the downside consequences when we diminish year after year the rights of 

religious people and religious organizations. Likewise, if we support—with the original vision that our founders had the full gamut 

of religious liberties, there are tremendous blessings, tremendous 

benefits that are going to accrue to our Republic. One of them—and 

I’ve mentioned the economic aspect in my written testimony, but 

one of them is also the happy consequence to other civil liberties. 

As a matter of fact, when you look at the speeches of the clergy 

who supported the move to independence in the 1700’s, people like 

John Witherspoon and others, they were absolutely convinced that 

religious liberty and civil liberty were so intertwined intrinsically, 

that if you denied one, you were automatically going to deny the 

other. 

So, as you look at the data about how unfortunately much of the 

American public has lost sight of the history and the meaning and 

the parameters of the Bill of Rights, I think there’s also a blessing 

and a benefit to America, not just in fortifying religious liberty 

when we stand for that principle, but it will enlighten the fact that, 

as I’ve indicated by—Professor Cox once said, you look at it, the 

history of the Bill of Rights, it started with a spiritual core and 

moved out from there. 

Mr. FRANKS. Well, thank you, Mr. Parshall. 

And I would now recognize Mr. Cohen for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chairman. 

Since, as I understand it, there’s no legislation filed that’s particularly relevant to the subjects on which we’re talking, this is 

more of an academic, intellectual exercise rather than a legislative 

hearing for the purpose of producing legislation and changing the 

law, so I will pursue it in that manner. 

First, I want to correct the record, if it needs to be corrected, because I think the record ought to be correct. If I said author of the 

Constitution, which if I check with my staff, I might have said 

that, he was obviously the author of the Declaration of Independence. And Mr. Goodlatte was in the right church, but the wrong 

pew when he corrected me. If I didn’t say that, he was just in the 

wrong church. But I definitely had University of Virginia down. 

I’d like to compliment Ms. Windham. You graduated Abilene 

Christian. Is that correct? 

Ms. WINDHAM. Yes, that’s correct. 

Mr. COHEN. And then you went to Harvard Law School, right? 

Ms. WINDHAM. Yes, that’s correct. 

Mr. COHEN. Is there any other person in the universe with that 

combination of degrees? 
64 

Ms. WINDHAM. Thank you, sir. There have been a few. 

Mr. COHEN. Have there really? Well, great. I knew Abilene 

Christian, but I never knew it reached to Harvard, and you’re a 

proud alumna. I’m sure they’re very proud of you. 

Mr. Baylor, you’ve got a lot of Texas history, but it didn’t tell me 

where you went to undergraduate school. Where did you go to 

school? 

Mr. BAYLOR. To Dartmouth College and Duke Law School. 

Mr. COHEN. Duke. I was afraid you were going to say Baylor and 

you were right down—— 

Mr. BAYLOR. We claim we own it, even though we don’t. 

Mr. COHEN. But you’re from Texas, I take it. 

Mr. BAYLOR. I’m not, actually. 

Mr. COHEN. You just practiced years there. 

Mr. BAYLOR. I’m from New York. 

Mr. COHEN. Okay. You practiced a lot there. 

Your group is for the defense of marriage. Is that right? 

Mr. BAYLOR. Yes. 

Mr. COHEN. That is one of the things you do? The biggest—the 

biggest assault on marriage, from time immemorial has been adultery. What have—has your group done to attack adultery? 

Mr. BAYLOR. What was my group done to attack adultery? 

Mr. COHEN. Yeah, because adultery is the root problem with 

marriage. That’s what breaks up more marriages than anything, is 

adultery. And if you want to protect marriage, you’ve really got to 

get to the core, and that’s fight adultery. 

Mr. BAYLOR. I—— 

Mr. COHEN. What have you all done to fight adultery? 

Mr. BAYLOR. I would agree with you, sir, that adultery certainly 

undermines the institution of marriage. 

Mr. COHEN. Right. 

Mr. BAYLOR. I don’t think it’s the case that we’re in a political 

environment right now where someone could seek to criminalize 

adultery, but ADF does support the family. We work with allied organizations that do all that they can to keep marriages together, 

to keep marriages together for the benefit of the children and for 

the folks who are in those marriages. 

Now, ADF as a matter of its own institutional policies tries to encourage those who are married to have strong marriages. 

Mr. COHEN. What do you think is—what do you think or your 

group thinks is the biggest threat to marriage? 

Mr. BAYLOR. Well, we haven’t published a list of all the threats 

to marriage and ranked them in any form or fashion. 

Mr. COHEN. Well, would you—— 

Mr. BAYLOR. We’re dealing—we’re dealing with the cultural moment. I don’t happen to be on the marriage team at ADF, but we 

protect the institution of marriage. We think it’s important for the 

upbringing of children. That’s why the institution exists, is to create an environment in which children can best be raised. 

Mr. COHEN. So you’re saying that since I’m—I’m 65, and I’ve 

never married. I’ve thought about it and I’ve thought about—even 

this morning, I thought about it, but I haven’t thought about having children. And so are you suggesting to me I should—don’t need 

to get married because I’m not going to have children? 
65 

Mr. BAYLOR. No, not at all. I think you—I encourage you to read 

a book that was published by Professor Robert George at Princeton, 

and his coauthors Ryan Anderson and Sherif Girgis where they lay 

out the case for marriage. And one of the points that they make 

is that sort of the template, the model, the ideal of marriage can 

be one thing, and it doesn’t necessarily mean that every single 

marriage has to be geared toward procreation and toward protection of children. We’re talking about setting an ideal setting, a 

model setting. 

Mr. COHEN. Right. So it’s sharing in life and getting through the 

senior years with somebody that you can—who can remember what 

you remembered and, you know, who knows who Steely Dan was 

and all those things. 

Mr. BAYLOR. Well, I would—I would not agree, and I think the 

authors of that book and other advocates for marriage would say 

that that is not in and of itself the government’s interest in regulating the institution of marriage. The government does not have 

a particular interest in relationships per se. It has an interest in 

how children are raised, and that’s the reason why what they call 

conjugal marriage. I encourage you to read that resource. It’s very 

useful. 

Mr. COHEN. Well, life, liberty and the pursuit of happiness. The 

pursuit of happiness could be children, and a lot of people it is, I 

think for our parents hopefully it was, and I know a lot of others, 

but—but pursuit of happiness can be just knowing Steely Dan and 

kind of getting through it all. 

Mr. BAYLOR. Well, there’s been some interesting scholarship 

about what the framers meant when they said ‘‘happiness,’’ and I 

suspect it meant something more profound than enjoying a Steely 

Dan concert. 

Mr. COHEN. They certainly weren’t like the Beatles, and thought 

happiness was a warm gun, like some people, my colleagues think. 

Mr. BAYLOR. I doubt that. 

Mr. COHEN. Yeah. 

Mr. BAYLOR. But I think many of the clients that Craig and Lori 

and I represent pursue happiness through their religious exercise, 

and they want protection from the government to be able to do that 

without undue interference. And my concern is that without a statute like RFRA that protects us at least from the Federal Government, we won’t be able, our clients won’t be able to pursue happiness in the manner they deem fit. 

Mr. COHEN. Mr. Baylor, I appreciate it and I appreciate your 

group. 

And I don’t know if you all have suggested that the expansion 

of the definition of marriage to people of the same gender would 

be something that is a threat to marriage, but if you have, I would 

suggest working on adultery, because I think there’s more of a history there. 

I yield back the balance of my time. 

Mr. FRANKS. I now recognize the gentleman from Texas, Mr. 

Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I would like to correct the record. And no number of votes 

taken by the gallery will change the facts. But the gentleman from 
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Tennessee did say he attributed that one of the three things Jefferson wished to be remembered by, as part of his memorial or gravestone, was that he was the father of the Constitution. That was the 

gentleman’s words. I didn’t hear which two things he left out. 

But I’m a bit surprised, since all of us are not immune from having slips of the tongue, that the gentleman would be so contemptuous of Mr. Goodlatte, because the gentleman did say that—— 

Mr. COHEN. Could I—— 

Mr. GOHMERT [continuing]. Attribute to Jefferson as being father 

of the Constitution. He wasn’t there. 

And I kind of like one of his suggestions when he wrote back and 

said, you know, if I’d been at the Constitution’s writing, I would 

have liked to have seen a proposal that no law could be passed that 

had not been on file for a year. And I would suggest that might 

not be a bad rule. 

Mr. COHEN. May I ask the gentleman to yield for a moment? 

Mr. GOHMERT. So—and I will not. The gentleman has had over 

10 minutes, and I have had about 2. 

Mr. COHEN. Could I ask the Chair to correct a point? 

Mr. GOHMERT. So, at this point—— 

Mr. COHEN. I was not contemptuous of Mr. Goodlatte. 

Mr. GOHMERT. Mr.—— 

Mr. COHEN. I was expressing my fault and saying Mr. Goodlatte 

might have been right. I would not express any—— 

Mr. GOHMERT. The Chairman needs to get regular order going. 

Mr. COHEN. Well, if we are going to—— 

Mr. GOHMERT. It is not enough to condemn Mr. Goodlatte or belittle him—— 

Mr. FRANKS. The gentleman from Texas is recognized. 

Mr. GOHMERT [continuing]. Stealing my time. 

In any event, let me go to what is panel three of the Jefferson 

memorial. ‘‘God who gave us life gave us liberty. Can the liberties 

of a nation be secure when we have removed a conviction that 

these liberties are the gift of God? Indeed, I tremble for my country 

when I reflect that God is just and that his justice cannot sleep forever.’’ He didn’t use the word ‘‘and.’’ I slipped that in. 

Now, Mr. Parshall, you indicated a similar belief, so let me ask 

Mr. Tebbe. 

Do you believe Jefferson and Mr. Parshall, that when you threaten religious liberty that you actually are threatening civil liberties 

as well? 

Mr. TEBBE. Yes. I believe that religious freedom is an important 

civil liberty. I think that’s common ground among many of us here 

in this room today. 

What disturbs me slightly is the way the story has been told, 

though, of RFRA and RLUIPA by some of my colleagues on the—— 

Mr. GOHMERT. Well, that goes beyond the extent of my question. 

Thank you for wanting to get into that. 

Mr. Baylor, do you have a succinct answer to whether or not the 

threat to religious liberty threatens everyone’s civil liberty? 

Mr. BAYLOR. Absolutely. As Chairman Franks said in his opening 

remarks, religious liberty is our first freedom and it is the foundation on which all of our freedoms rest. It presupposes that there 

is a God and that we have a duty—— 
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Mr. GOHMERT. Well—and in the First Amendment, do you think 

one portion of the first two clauses is more important than the 

other? 

Mr. BAYLOR. I do not. I think that the Framers of the First 

Amendment recognized the importance of all parts of the First 

Amendment. They had their own purposes—— 

Mr. GOHMERT. But you understand the two parts I’m talking 

about, the first two, that—— 

Mr. BAYLOR. Are you referring to Free Exercise and Establishment? 

Mr. GOHMERT. Yes. 

Mr. BAYLOR. Yes. Yeah, they are both important to protecting liberty—— 

Mr. GOHMERT. Is one more important than the other? Because it 

seems like the Supreme Court, in more recent times, has almost 

eliminated ‘‘or prohibiting the free exercise thereof.’’ It seems like 

that has taken a second seat to this Supreme Court. 

Mr. BAYLOR. Well, obviously, the Employment Division v. Smith 

case was a grave disappointment. And we are grateful that Congress responded with the Religious Freedom Restoration Act. And 

they have interpreted correctly, I believe, in the O Centro case, 8 

to nothing; the Hobby Lobby case, 5–4, a little bit closer. 

I would submit, if you’re asking about this, that there are certain 

Establishment Clause cases, particularly in the ’70s and the ’80s, 

that were wrongly decided, and there are still some problems out 

there in Establishment Clause jurisprudence. But I think the Court 

has done some things to correct some of its prior errors from the 

’70s and the ’80s. 

Mr. GOHMERT. Yeah. 

Ms. Windham, do you have thoughts about religious liberty and 

whether or not infringements on religious liability are a real threat 

to civil liberty? 

Ms. WINDHAM. I believe they are a real threat to civil liberty. Religious liberty is a critical component of human dignity. It also promotes both diversity and peace in our large Nation made up of 

many faiths. 

Mr. GOHMERT. Okay. Thank you. 

My time has expired. 

Mr. FRANKS. I now recognize the Ranking Member of the full 

Committee, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Attorney Tebbe, do you agree that the Religious Freedom Restoration Act should not be used to carve out exemptions to our Nation’s nondiscrimination laws? 

Mr. TEBBE. I do think that’s correct, on the whole. 

As I was saying a moment ago, what disturbs me a little bit 

about the way that the story of RFRA and RLUIPA has been told 

by other members of the panel today is that it has not been simply 

a story of unanimous support for those two statutes over time, and 

it is not the case that dissent over how RFRA has been applied is 

a new thing or originated with the Hobby Lobby decision. 

Rather, as they well know, the coalition supporting RFRA disintegrated in the mid and late 1990’s precisely because of concerns 

over civil liberties. Civil rights groups became aware that RFRA 
68 

and RLUIPA, or RFRA in particular, could be used to chip away 

at important civil rights protections, and, at that time, particularly 

concerning housing discrimination. And attempts to repass RFRA 

after it was struck down as applied to the States in City of Boerne 

failed in Congress. It’s not that the votes weren’t unanimous; it’s 

that those attempts failed because of these concerns about civil liberties. 

So I think telling the story—it’s at least important to acknowledge that that happened. Right? If the point of this hearing is to 

build up bipartisan support for these statutes, I think it does not 

help to tell the story in a way that doesn’t even acknowledge the 

fact that there was serious concern about the impact of these statutes on civil liberties in the 1990’s. 

Mr. CONYERS. Uh-huh. 

Let me turn to the three ways that were suggested to address 

deficiencies. ‘‘Make RFRA inapplicable to commercial action’’ is one 

of them. 

Could you explain if it would help to ameliorate harm to third 

parties but acknowledge that this may be an incomplete solution? 

Mr. TEBBE. Sure. I’d be happy to do that. 

One of the unprecedented aspects of the Hobby Lobby decision 

was that it granted an exemption to a corporate actor on religious 

grounds. That had never been done before by the United States Supreme Court. It was entirely unprecedented. 

The reason it had never been done before was not because the 

Free Exercise Clause didn’t apply to corporate actors or to business 

actors. It did. But the Supreme Court was worried, in case after 

case, in specific circumstances, that the impact of exempting corporate actors and commercial actors on third parties would be very 

grave. Those third parties are chiefly often employees but could 

also be customers, investors, and a host of other constituents that 

corporations affect in their daily operations. 

Mr. CONYERS. Thank you. 

Mr. Baylor, I wanted to ask you about whether a domestic violence shelter funded by taxpayer dollars and run by a religious institution would be permitted to deny services to a lesbian woman. 

Mr. BAYLOR. You know, your question raises precisely the analysis that RFRA was designed for. 

Now, I don’t know. Your premise is that this clinic, or this shelter, would for some reason refuse to provide services to lesbians. 

That has not been what we have seen in the United States in recent history. 

What we have seen is individuals who are operating in commerce 

not refuse to serve gays and lesbians but rather to be coerced by 

the government to participate in the celebration of a marriage ceremony that they object to. So I think the premise does not really reflect what is happening in reality. 

But the next questions would be: What burden is the operator of 

the shelter articulating, and is it sufficiently substantial? Then, if 

they proved that, it would turn to the government to prove that it’s 

necessary to force this shelter to provide those services, and a 

judge would decide that. 

Mr. CONYERS. Thank you very much. That was a very insightful 

response. 
69 

And I yield back the balance of my time. 

Mr. FRANKS. I thank the gentleman. 

And I now yield to the distinguished Vice-Chairman of the Constitution Subcommittee, Mr. DeSantis. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Thank you, for the witnesses, for your testimony. 

Mr. Tebbe, if I understand you correctly, your objection to Hobby 

Lobby was that the price of giving Hobby Lobby an exemption from 

the regulatory mandate was that the employees of Hobby Lobby 

were made worse off as a result? 

Mr. TEBBE. That’s right. And I think the Supreme Court didn’t 

do enough in its opinion to make sure that wouldn’t happen. 

Mr. DESANTIS. But here’s the problem I have with that point, is 

that, wouldn’t the outcome have been, if that regulatory edict was 

upheld, that Hobby Lobby, per the advice of Justice Kagan and 

Sotomayor during the early arguments, Hobby Lobby would have 

simply gotten out of the health insurance business, perhaps, and 

ended up paying the tax, which Justice Kagan correctly pointed out 

was actually cheaper than offering the insurance? 

So Hobby Lobby still would have maintained its religious commitment. Those employees would have ended up in exchanges, 

which would have been more costly and given them, actually, worse 

coverage, in many respects. 

So wouldn’t they have been made worse off had the case gone the 

other way? 

Mr. TEBBE. Yeah, that’s an interesting point. And I want to acknowledge Professor Marty Lederman, who started to raise that argument, that Hobby Lobby could simply get out of the business, if 

it didn’t want to be burdened, of providing health insurance at all. 

Unfortunately, that argument was raised late in the litigation, 

and there was not a record on how much it would actually cost. So 

whether that—— 

Mr. DESANTIS. Well, let’s just assume that the tax penalty for 

not providing insurance is substantially cheaper. And, obviously, 

Hobby Lobby would be in a position where they wouldn’t be 

complicit in something that violates their conscience. I think it’s 

questionable whether the employees would—I think they would 

have been a lot worse off under that situation. 

Let me ask you this, though. I’m trying to figure out, kind of, 

where the boundaries are here in terms of how you understand religious liberty. Could Congress enact a statute to require churches, 

like a Catholic parish, to pay for late-term abortions for its employees? 

Mr. TEBBE. I think that would be a difficult question I’m not prepared to answer right now, but—— 

Mr. DESANTIS. But, I mean, if under the analysis, I think, that 

you’re proposing, if that parish were to go and ask for, hey, RFRA, 

this is a burden on my faith, not least restrictive means, under 

your analysis, those employees who happen to work for that parish 

would be worse off because they would not be getting a regulatory 

benefit, or maybe even Congress would do a statutory benefit. 

And so wouldn’t you have to then say that that regulation would 

have to be imposed on the church? 
70 

Mr. TEBBE. I see where you’re going with this. No. And I believe—— 

Mr. DESANTIS. Why? 

Mr. TEBBE. The reason is because churches and their relationships with their employees are a special case, and the Supreme 

Court has recognized—— 

Mr. DESANTIS. Okay. What about Catholic Charities? So this is 

a big organization. It’s not a church. It’s based on Catholic principles. Would that mandate apply to Catholic Charities? Would 

they have to fund late-term abortion coverage for their employees? 

Mr. TEBBE. I’m reluctant to speak on that question because I 

haven’t thought it through carefully enough. But I do think that 

Catholic Charities would be required by general laws, for example, 

to provide adoption services to all couples in—— 

Mr. DESANTIS. Well, that’s a different—so what do you think, 

Mr. Baylor? I mean, in this situation, under that analysis—well, 

let’s even go further, more into the commercial realm. EWTN, a 

Catholic station, it’s commercial, but clearly they have a religious 

mission that’s core. 

Would that analysis mean that EWTN would have to provide the 

late-term abortion coverage, which is obviously something that the 

people who are participating in running that organization very 

much would disagree with? 

Mr. BAYLOR. I think it does. And that’s what’s really disturbing 

about some of these arguments that are being made about Hobby 

Lobby, is, you know, we tend to think it’s about contraception, but, 

actually, the objection that was made by Hobby Lobby and by Conestoga and by many of the over 300 plaintiffs that have challenged 

the mandate is that they don’t want to facilitate access to abortion. 

And this hypothetical that you have spun out is not a hypothetical. It is a reality. The District of Columbia now has adopted 

a law that will require all employers, including the Catholic Archdiocese, including Catholic University, including Alliance Defending Freedom, to pay for all elective abortions. California has done 

the same thing. So we need protection from it. 

Mr. DESANTIS. Let me—my time is about to expire. There are 

sometimes distinctions drawn between a corporate actor or a commercial actor versus a non-. I mean, I think if you had a sole proprietor who was running an orthodox Jewish deli, there would be 

religious protections for that sole proprietor. I mean, do people dispute that? 

And if they don’t, then simply the fact that he decides to incorporate his business, he would essentially be forfeiting his right to 

run his business as a—I just—I’m trying to figure out where this 

would go. So can you speak to that issue? 

Mr. BAYLOR. Well, there was a lot of difficult line-drawing that 

folks on the other side of the Hobby Lobby case were trying to engage in during that litigation. And it was pointed out that corporations—I think everyone agrees that at least some corporations have 

religious liberty. Many churches are incorporated. The Christian 

school that my daughters go to is incorporated. So you can’t say 

that all corporations don’t have religious liberty. 

And then you have this prospect, as you talked about, of sole proprietorships. And is it really the case that we’re going to say that 
71 

someone who incorporates or has a sole proprietorship as a Kosher 

deli can be forced by the government to do things that violate their 

religious convictions? 

The lines just don’t hold up. We should keep it as it is. 

There was an amicus brief in Hobby Lobby that explained that 

when RLUIPA—I’m sorry—when RLPA, the predecessor statute, 

was considered, Congress understood that RFRA protected commercial entities. They tried to change that and failed. 

Mr. DESANTIS. Thank you. 

My time has expired. 

Mr. FRANKS. And I thank the gentleman. 

And I now recognize Mr. Nadler from New York for 5 minutes. 

Mr. NADLER. I thank the Chairman. 

I want to go into a little of the history here, first of all. I was 

one of the leaders in the fight for RFRA back in 1993. And along 

with former Congressman, now Florida Supreme Court Justice 

Charles Canaday, I was the principal author, along with Charles, 

of RLUIPA. And the congressional intent at that time—and we did 

pass it by UC on the floor, with only Charles and I being on the 

floor at the time, as the last act before we adjourned in 2000. 

The U.S. Supreme Court’s ruling in Hobby Lobby essentially 

punched a hole in the Constitution, in my opinion. It took the principle of religious liberty, enshrined in our First Amendment and in 

RFRA and RLUIPA, and turned it on its head. 

The Religious Freedom Restoration Act was intended to be used 

as a shield, not a sword. It was designed to protect individuals’ 

ability to exercise their religion. It was not intended to allow any 

of us to impose our religious beliefs on someone else or to use our 

religion to harm other people. 

And I think Mr. Tebbe’s distinction between who pays the price, 

the government or a third-party individual, is exactly apropos. 

When we passed RFRA in 1993, it was not intended to excuse 

for-profit businesses from complying with our laws. Religious belief 

was not understood to excuse restaurants or hotels from following 

our civil rights laws enacted in the 1960’s or an Amish employer 

from having to pay into the Social Security system in the 1980’s, 

and I think Ms. Windham mentioned that case. 

No matter how sincerely held the religious belief, employers 

should not be allowed to use their beliefs as a reason to refuse to 

hire people of the ‘‘wrong,’’ in quotes, race or religion or to deny 

employees access to critical preventative healthcare services required to be provided by law. 

Now, let me ask a couple of questions here. 

By the way, let me mention that all the cases mentioned by Ms. 

Windham as RLUIPA cases—the prison beard case, the eagle 

feather case, the land use cases that were mentioned—all of them, 

I certainly agree with the outcome. And all of them were well within the purpose—they were exactly why we passed RFRA and why 

we passed RLUIPA. 

The Hobby Lobby case, which is the first case that imposes a 

burden on third parties, is the exception—not the exception. It’s 

the new—it’s an extension of the law, because we never intended 

that third parties should bear the burden. And Mr. Tebbe made 

that distinction. 
72 

Let me ask you this. We generally provide exemptions in the law. 

We say that a church—you can’t discriminate on religion in hiring, 

for example. But if you’re a church, you can discriminate in hiring 

as long as the person has to do with the ministry. In other words, 

you can say, ‘‘We insist on Catholics to be priests.’’ You can’t say, 

‘‘We insist on Catholics to be the janitor.’’ 

Where does that end? 

Mr. TEBBE. I think it ends at the church walls. That is, in the 

Amos case, the United States Supreme Court addressed that question. And that very exemption that you are mentioning to Title 7 

that allows religious employers, churches in particular, to discriminate in employment in favor of co-religionists—right? It allows a 

church to hire only people of the same faith for all positions within 

the church. As applied in that case, it did impose a harm on a third 

party, namely the janitor—right?—who was not of the same faith 

as the church. 

But that’s a very special situation. You know, the Supreme Court 

has recognized, and I think a lot of people have, that churches have 

special ability to—— 

Mr. NADLER. And the statute recognizes that. If the statute did 

not recognize that, would that be a constitutional requirement? 

Mr. TEBBE. Well, there’s debate about that. I’m not sure I would 

want to take a position on it here. But the statute requires it, and 

the Supreme Court has acknowledged it in the Hosanna-Tabor 

case, I think rightly, although maybe that case goes a little bit further than it should. 

Mr. NADLER. Now, let me ask you a different question. 

Mr. TEBBE. Yeah. 

Mr. NADLER. We would certainly say that the corner bakery or— 

let’s be bigger—the large bakery could not refuse to hire a Black 

person or a Jewish person or anybody on the basis of race, color, 

religion, creed, faith, et cetera. 

Could they refuse—the bakery—could they refuse to sell a wedding cake to a couple of whose marriage they disapprove, let’s say 

a same-sex couple? If so, why? If not, how do you distinguish that 

from—or, if so, how do you distinguish that from the refusal to hire 

the wrong person? 

Mr. TEBBE. So State and local antidiscrimination laws would prohibit that kind of discrimination even on the basis of religion, and 

there would not be a religion exception. 

There was recently a New Mexico Supreme Court decision that 

held as much in a case to do with a wedding photographer that declined to photograph the civil union ceremony of a gay couple. And 

the Supreme Court of that State said that the antidiscrimination 

law could be applied against the wedding photographer. 

And there are cases pending now in different parts of the country 

concerning bakeries, and they’re coming out the same way. 

Mr. NADLER. And would the Hobby Lobby doctrine, if Hobby 

Lobby were applied, would you think that would change that result? 

Mr. TEBBE. It could be a problem, right? So there are State-level 

RFRAs. One of the dangers with Hobby Lobby and the way it eviscerated the principle against shifting harms to third parties is that 

it could be mimicked by State-level religious freedom restoration 
73 

acts by State courts. And if that started to happen—it didn’t happen in New Mexico, but if it starts to happen, that could be a problem for State and local laws that protect LGBT people against discrimination. 

Mr. NADLER. That’s another problem. 

My last question: Mr. Baylor, I don’t remember if it was you or 

Ms. Windham or somebody cited a number of the zoning cases designed to exclude orthodox Jewish institutions from certain areas 

and that they were rejected on the basis of RLUIPA, quite properly. Maybe it was Mr. Parshall who cited those cases and Ms. 

Windham. 

And those kinds of cases were one of the reasons we passed 

RLUIPA in advance. And I think the Court decisions saying you 

can’t do that were quite proper and correct. And I congratulate any 

of you sitting here who had anything to do with those cases. 

Now, Mr. Parshall, several years ago, a developer announced 

plans to build a Muslim community center named Park51 in New 

York City near Ground Zero in my district. The project satisfied all 

zoning requirements and was legally authorized to move forward 

with construction, but there was significant backlash to the project, 

specifically because it was a building to be used by Muslims, and 

some people said that’s a terrible thing. You know, given its proximity to Ground Zero, it is terrible because, after all, it was Muslims who destroyed the World Trade Center, and it’s bad to have 

a Muslim mosque or whatever close to it. 

Although your organization usually argues that zoning and historic landmark laws may not be used to stop the building of religious structures, in that case it filed a lawsuit arguing that zoning 

and landmark laws should be used to bar the construction of the 

Muslim community center. In fact, you filed a lawsuit to prevent 

the structure from being built. 

Now, this is the very scenario that RLUIPA was meant to protect. A building project was being contested simply because of the 

religious belief of those who would use it. What was unusual in 

this case is that, usually, when someone opposes a religious building project, they’re not honest enough to admit the reason is that 

it’s religious. They find some other excuse, density or whatever. 

Here they were very clear about it; we don’t want a Muslim—— 

Mr. FRANKS. The gentleman’s time has expired here, but go 

ahead and finish the question, and let him answer. 

Mr. NADLER. We don’t want a Muslim structure nearby. 

RLUIPA is there to ensure that this minority religious group is 

not treated differently because of what they believe, et cetera. But 

the ACLJ not only refused to—— 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. NADLER. I’m almost finished. I have one more sentence to 

the question—but actively sought to prevent their use of the property. 

How is blocking the building of a Muslim community center supporting religious freedom? And why would you think that RLUIPA 

did not protect the religious group in this case? 

Mr. PARSHALL. Well, first of all, as you know, the Court ruled in 

a way that affirmed the ACLJ’s legal position that we had argued 

in that case. 
74 

Zoning codes—and I’ve done zoning work. I’m not a specialist in 

it, but those of us who do religious liberty work run into these zoning cases quite a bit. Zoning codes and zoning authorities have the 

right to use a number of criteria that are religion-neutral. 

And, in this case, the reason that the Court ruled and the reason 

that ACLJ argued was not because of public outcry. This wasn’t a 

mob effort. This was a reasoned effort in line with the criteria that 

zoning boards and zoning ordinances and zoning laws can apply— 

things like aesthetics and history, legacy. And, in this case, we all 

have to admit that there was a particular history surrounding the 

9/11 tragedy in that part of New York City, very much like the 

landmarking laws that are often—in fact, the Flores case addressed 

the competing interests between religious liberty and landmarking. 

So, in a sense, I look at this as a landmarking issue and not a 

targeting-of-religion issue. 

Mr. FRANKS. I want to thank all of you today for this very important discussion. 

You know, I am reminded of a—if I can paraphrase and sort of 

condense a quote from a great statesman some years ago when he 

said that, out of fervent, religious, and committed faith arises—you 

know, from bondage sometimes arises great, fervent faith, and that 

faith often leads to great courage, and the courage leads to freedom, and freedom leads to abundance, and abundance leads to apathy, and apathy leads to dependence, and dependence can lead 

back to bondage. 

And I think it’s a great admonition on the part of all of us that, 

when we are in times of abundance, to make sure we protect our 

foundational freedoms, none of which is more foundational than the 

freedom of religion. 

And I thank all of you and—— 

Mr. COHEN. Mr. Chair, before you close, I have a statement to 

enter in the record, without objection. 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 
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Mr. COHEN. And I would like to take the brief time to say I was 

wrong, Mr. Goodlatte was right. I think he was correcting me on 

the author of the Declaration of Independence. 

Mr. Goodlatte is a gentleman. He is my friend. He is a scholar. 

I pre-anticipated his question incorrectly, and I would have been 

eliminated from a game show. 

Thank you. 

Mr. FRANKS. I thank the gentleman. 

So, without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

written materials for the record. 

Again, I thank all of you, and I thank the members in the audience. 

And this hearing is adjourned. 

[Whereupon, at 11 a.m., the Subcommittee was adjourned.] 
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