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97–033 PDF 2005

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

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

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 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JAMES C. HO, Majority Chief Counsel 

ROBERT F. SCHIFF, Demdcratic Chief Counsel 

(III)

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

Mun ̃ oz, 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 Mun ̃ oz to questions submitted by Senator Cornyn .......... 63

Responses of Vincent Mun ̃ oz 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

Page

IV

Mun ̃ oz, 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

(1)

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 

2

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 reliVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
3

ance 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 libVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
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erty 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 

5

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, recogVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
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nize 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 

7

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 

8

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 

9

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.] 

10

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 fundVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
11

ing 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 

12

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 

13

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 faithbased 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 

14

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, taxfunded 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. 

15

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 

16

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 

17

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. 

18

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 memVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
19

bers 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 highVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
20

lighted 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, 

21

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 

22

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.] 

23

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 

24

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. 

25

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 

26

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 

27

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. 

28

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 

29

$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 

30

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 

31

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. 

32

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 

33

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 

34

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 

35

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. 

36

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 

37

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 establishVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
38

ment 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. 

39

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 

40

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 Mun ̃ oz 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 Mun ̃ oz received his Ph.D. from Claremont Graduate 

School, his M.A. from Boston College and his B.A. from ClaremontMcKenna 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. 

41

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 

42

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. 

43

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 betVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
44

ter 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 

45

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 Mun ̃ oz. 

46

STATEMENT OF VINCENT PHILIP MUN ̃ OZ, CIVITAS FELLOW OF 

RELIGION AND PUBLIC LIFE, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C., AND ASSISTANT PROFESSOR OF 

POLITICAL SCIENCE, NORTH CAROLINA STATE UNIVERSITY 

Mr. MUN ̃ OZ. 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. MUN ̃ OZ. 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 

47

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 

48

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. Mun ̃ oz appears as a submission 

for the record.] 

Chairman CORNYN. Thank you, Professor Mun ̃ oz, 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 Mun ̃ oz 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 

49

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 Mun ̃ oz, you commented in your remarks about 

the difficulties of apparent ad hoc decision making. Could you comment on that? 

Mr. MUN ̃ OZ. 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 

50

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. 

51

I am sympathetic to Professor Mun ̃ oz’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. Mun ̃ oz, I remember the night the Ninth Circuit rendered its 

ruling, and the leaders of the Democratic Party raced down to the 

52

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 

53

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 Mun ̃ oz 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. 

54

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 firstVerDate 0ct 09 2002 13:07 Feb 10, 2005 Jkt 097033 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\97033.TXT SJUD4 PsN: CMORC
55

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. Mun ̃ oz? 

Mr. MUN ̃ OZ. 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 

56

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, 

57

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. 

58

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. Mun ̃ oz, did you want to comment? 

Mr. MUN ̃ OZ. 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 

59

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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