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25–480 2017

THE STATE OF RELIGIOUS 

LIBERTY IN AMERICA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 16, 2017 

Serial No. 115–5 

Printed for the use of the Committee on the Judiciary 

( 

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

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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

STEVE KING, Iowa, Chairman 

RON DESANTIS, Florida, Vice-Chairman 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

TREY GOWDY, South Carolina 

STEVE COHEN, Tennessee 

JAMIE RASKIN, Maryland 

JERROLD NADLER, New York 

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C O N T E N T S 

FEBRUARY 16, 2017 

OPENING STATEMENTS 

Page 

The Honorable Steve King, Iowa, Chairman, Subcommittee on the Constitution and Civil Justice ........................................................................................... 1 

The Honorable Steve Cohen, Tennessee, Ranking Member, Subcommittee on 

the Constitution and Civil Justice ...................................................................... 3 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 5 

WITNESSES 

Kim Colby, Director, Christian Legal Society’s Center for Law and Religious 

Freedom: 

Oral Statement ................................................................................................. 7 

Hannah Smith, Senior Counsel, Becket: 

Oral Statement ................................................................................................. 8 

Rabbi David Saperstein, Former United States Ambassador-at-Large for 

International Religious Freedom: 

Oral Statement ................................................................................................. 10 

Casey Mattox, Senior Counsel, Alliance Defending Freedom’s Center for Academic Freedom: 

Oral Statement ................................................................................................. 12 

OFFICIAL HEARING RECORD 

Responses to Questions for the Record from Rabbi David Saperstein, Former 

United States Ambassador-at-Large for International Religious Freedom .....

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD 

Statement submitted by the Family Research Council. This material is available at 

the Committee and can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10- 

20170216-SD004.pdf 

Statement submitted by the Honorable John Conyers, Jr., Michigan, Ranking Member, Committee on the Judiciary. This material is available at the Committee and 

can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10- 

MState-C000714-20170216.pdf 

Letters submitted by the Honorable Steven Cohen, Tennessee, Ranking Member, 

Subcommittee on the Constitution and Civil Justice. This material is available at 

the Committee and can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170216/105593/HHRG-115-JU10- 

20170216-SD003.pdf 

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THE STATE OF RELIGIOUS LIBERTY IN 

AMERICA 

THURSDAY, FEBRUARY 16, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The subcommittee met, pursuant to call, at 1:07 p.m., in Room 

2141, Rayburn House Office Building, Hon. Steve King [chairman 

of the subcommittee] presiding. 

Present: Representatives King, Goodlatte, DeSantis, Franks, 

Gohmert, Gowdy, Cohen, Nadler, and Raskin. 

Staff Present: John Coleman, Counsel; Jake Glancy, Clerk; 

James Park, Minority Chief Counsel, Subcommittee on the Constitution and Civil Justice; Veronica Eligan, Minority Professional 

Staff; and Matthew Morgan, Minority Professional Staff. 

Mr. KING. The Subcommittee on the Constitution and Civil Justice will come to order. 

Without objection, the chair is authorized to declare a recess of 

the committee at any time. 

We welcome everyone to today’s hearing on the state of religious 

liberty in America. 

I now recognize myself for an opening statement. 

James Madison’s writings made clear he believed that the United 

States Constitution, by design, would protect religious liberty. Expressing this view in the Federalist No. 10, Madison stated that, 

‘‘The inference to which we are brought is that the causes of faction 

among people cannot be removed, and that relief is only to be 

sought in the means of controlling its effects’’—meaning the effects 

of factions. ‘‘Indeed, by design, our system of government was intended to take mankind as it is, not as those in government often 

just want it to be.’’ 

In his influential document titled, Memorial and the Remonstrance Against Religious Assessments, Madison pointed out that, 

‘‘The failed attempts by past governments to regulate religious 

thought,’’ and Madison stated that, ‘‘Torrents of blood have been 

spilled in the old world, by vain attempts of the secular arm, to extinguish religious discord by proscribing all difference in religious 

opinion,’’ close quote. 

Madison proposed that only equal and complete liberty would ensure that religious discord among factions did not harm the health 

and prosperity of the State. This idea would later be enshrined in 

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and prosperity of the State. This idea would later be enshrined in 

the establishment and free exercise clauses of the First Amendment, which state that, quote, ‘‘Congress shall make no law respecting an establishment of religion or prohibit the free exercise 

thereof,’’ close quote, which just means Congress will not establish 

a State religion. 

Despite the protections afforded the American people under the 

First Amendment, religious liberty is threatened today. This is, in 

part, a result of Supreme Court precedent that has twisted the 

original meaning of the religion clauses. The free exercise clause, 

for example, after the much criticized Employment Division v. 

Smith, has been interpreted so narrowly that Congress saw a need 

to pass the Religious Freedom Act of 1993, known as RFRA, to restore the most robust, compelling interest standard found in earlier 

decisions. RFRA, which was introduced by Congressman Chuck 

Schumer—seems interesting to note that at this point, in retrospect—received overwhelming bipartisan support from a broad coalition of over 50 organizations that included the American Civil 

Liberties Union, Americans United for the Separation of Church 

and State, the Home School Legal Defense Association, Concerned 

Women for America, and the Christian Life Commission of the 

Southern Baptist Convention. 

Other cases, however, continue to leave an ugly stain on American jurisprudence. One such case is Everson v. Board of Education 

of Ewing, which was authored by Justice Hugo Black in 1947. Appropriating the phrase, quote, ‘‘wall of separation between church 

and State,’’ close quote, from Thomas Jefferson’s 1802 letter to the 

Danbury Baptist Association, Justice Black redefined the establishment clause despite the fact that his metaphorical wall appears nowhere in our Constitution. Moreover, in his book titled, ‘‘Separation 

of Church and State,’’ legal historian, Philip Hamburger meticulously documents a strong connection between the phrases originally used in the Everson case and the anti-Catholic ideology of the 

Ku Klux Klan, though Justice Black himself was a former Klansman. 

More recently, Americans’ religious liberty was threatened by executive action under the previous administration. I think of Little 

Sisters of the Poor, Hobby Lobby, Hossana-Tabor and many others 

who have spent years of their life defending themselves in court 

only to win in the Supreme Court and be rewarded with the obvious conclusion that our body of laws cannot regulate our conscience. And our Founders recognize our Nation and the human 

race as a whole has drawn strength from a diversity of ideas and 

beliefs. 

My hope is that today’s hearing will shed some light about the 

challenges now facing religious liberty in the United States. I want 

to thank the witnesses for your testimony. 

And before I recognize the ranking member for his opening statement, I first would like to submit a letter from the Family Research Council regarding today’s hearing. 

Without objection, the statement will be entered into the record. 

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STATEMENT SUBMITTED BY THE FAMILY RESEARCH COUNCIL 

This material is available at the Committee and can be accessed 

on the committee repository at: http://docs.house.gov/meetings/ 

JU/JU10/20170216/105593/HHRG-115-JU10-20170216- 

SD004.pdf. 

Mr. KING. The chair now recognizes the ranking member of the 

Subcommittee on the Constitution and Civil Justice, Mr. Cohen of 

Tennessee, for his opening statement. 

Mr. Cohen. 

Mr. COHEN. Thank you, Mr. Chair. 

Today’s hearing is the first hearing of this subcommittee, the 

Constitution and Civil Justice Subcommittee of the 115th Congress. And we look forward to working with Mr. King. We have 

traveled together and we have served together and we have had 

committees together, and I look forward to this one. 

I had the pleasure of working with the chairman when he was 

chairman and I was ranking member of the Executive Overreach 

Task Force in the last Congress. The Task Force, which we ought 

to revive for, indeed, we have an executive in need of scrutiny. Executive in need of scrutiny. We certainly have that situation. So I 

look forward and hope we will continue that work in this 115th 

Congress. 

Today’s hearing on the state of religious liberty in America is 

very timely. And I am sorry that the state of religious freedom is 

not so good at the moment, for our Nation seems to have entered 

a dark zeitgeist. When it comes to religious freedom, our most fundamental values as embodied in the First Amendment’s religion 

clause are under threat. 

I heard, it was on television, I guess, of President Obama’s executive order banning all refugees—President Trump. Sorry. Wrong 

President—wishful thinking. I channel myself back to the good old 

days. When I heard President Trump’s executive order banning all 

refugees and all travelers from seven majority Muslim countries 

with what effectively amounted to an exception that favored Christian refugees for admission, I was disturbed. I thought, this is not 

the America that I grew up in, studied, and revere, and take an 

oath to uphold. 

This executive order must be seen in context for how it coincides 

with President Trump’s campaign promise of a, quote, ‘‘total and 

complete shutdown of Muslims entering the United States.’’ 

Rudy Giuliani, a prominent Trump supporter, said the President 

wanted a, quote, ‘‘Muslim ban,’’ unquote, and asked him for a way, 

quote, ‘‘to do it legally.’’ Good evidence in the cases that later came 

forward but terrible for the idea that our country was looking at 

a religious test. And President Trump did on television the same 

thing in an interview when he said he wanted to prioritize Christian refugees over those of other faiths. 

Now, I supported a bill I think that we had about Christian refugees, and I think there might have been a minority of Democrats 

on that. There was a lot of Republicans and just a few of us Democrats. So I understand the fate of the Christian refugees. But to 

take our immigration policy and prioritize one religion is still 

wrong, whether that was the Christian minority or Jewish or Buddhist or whoever. 

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I cannot believe our country, which has a history of being a 

haven for religious freedom going all the way back to the pilgrims, 

John Winthrop talking about our shining city upon a hill, which I 

think Reagan then played upon, would engage in such an act of religious intolerance. 

The freedom to worship one’s God or no God is fundamental to 

our national identity and our essential character as a large and diverse society and central to our values. If religious freedom means 

anything, it means that all religions and not just those of the majority culture have a right to be free from discrimination by our 

government. 

There has, lately, kind of been a group in America that had been 

saying that this is a Christian Nation, and that is not true. We are 

not a Christian Nation or a Judeo-Christian Nation. We are the 

United States of America, and we welcome all religions and put 

none over another, and that is why we have a First Amendment. 

Casting suspicion on Muslims because they are Muslims is not 

an American value. Unfortunately, denigrating Islam and its followers seems to have become the latest form of dog whistle politics, 

and innocent people are paying the price. Hopefully, they won’t be 

paying the price as greatly as we fear they will be as American 

troops might have people turn on them in Iraq where we suspended immigration, yet we are fighting with those people against 

ISIL. 

Just yesterday, the Southern Poverty Law Center issued a report 

finding that the number of anti-Muslim hate groups in America 

rose sharply from 2015 to 2016, tripling from 34 to 101, a rise 

which coincided with the 2016 Presidential campaign and much 

anti-Muslim rhetoric. 

A coalition of 24 civil rights and religious organizations wrote to 

this subcommittee, quote, ‘‘Treating one’s faith as a second class 

and favoring others as the executive order does threatens all faiths 

and the religious freedom that protects us all,’’ end quote. It is no 

argument to say that we need this order for national security reasons. Indeed, we have done nothing in the last 4 days—6 days, I 

guess, since the order was—the Ninth Circuit ruled on the order, 

and we were told that terrorists and bad hombres were rushing 

into our country by the hour and, yet we have done nothing Saturday, Monday, Tuesday, Wednesday, Thursday. No action. 

It is not nearly tailored to countries with a history of terrorist 

attacks in America. In fact, those seven countries had little to no 

immigrants who committed a terrorist act. They were Americans 

with ancestry from Somalia. But the 9/11 folks, of course, were 

Saudi Arabia, and Egypt, and I think maybe the UAE, I am not 

sure, but certainly countries that weren’t on that list, and that was 

unfortunate. 

It brushes broadly, impugning entire countries and entire religion. Indeed, this is why Federal courts have found that, at least 

in these initial matters and district courts and in the Ninth Circuit, that the TRO should have been issued because there was a 

likelihood of irreparable harm and immediate damage, and then 

apparently that it likely violates the Constitution. Silence is not an 

option. 

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As the late, great Nobel Laureate and Holocaust survivor Elie 

Wiesel said, ‘‘We must take sides. Neutrality helps the oppressor, 

never the victim. Silence encourages the tormentor, never the tormented. We must speak out.’’ 

And I yield back the balance of my time. 

Mr. KING. I thank the gentleman for his statement. 

And the chair now recognizes the chairman of the full Judiciary 

Committee, Mr. Bob Goodlatte of Virginia, for his opening statement. 

Chairman GOODLATTE. Thank you, Mr. Chairman. I want to 

thank you for holding this hearing. 

I want to thank the witnesses for the testimony they are going 

to offer. 

Since the birth of our Nation, debates about religious liberty 

have been centered on the relationship between religion and government. Indeed, the Founding Fathers feared the effect of government on religion. In a letter dated June 12, 1812, to Benjamin 

Rush, John Adams stated that, ‘‘Nothing is more dreaded than the 

national government meddling with religion.’’ Many Americans 

today know all too well this dread. The policies and regulations implemented under the previous administration were in many cases 

hostile to the religious protections afforded by our Constitution. 

Thankfully, several of these policies were struck down by the 

United States Supreme Court. 

In 2012, for example, the justices of the Supreme Court unanimously rejected the government’s argument in Hosanna-Tabor. To 

the surprise of many, the administration’s lawyers argue that the 

First Amendment had little application to the employment relationship between a church and its ministers. The court stated that requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere 

employment decision. The decision described by the administration—the decision described the administration’s lawyers’ position 

as extreme. 

As this committee today examines current threats to religious 

liberty, my hope is that we approach this examination in the same 

spirit as when Congress passed the Religious Freedom Restoration 

Act in the 103rd Congress and was signed into law. I cosponsored 

that legislation, and I was amazed at the incredible bipartisan support it generated. By the time the bill passed by a voice vote, it had 

the support of 170 cosponsors from both sides of the aisle and overwhelming support from a variety of organizations across the political spectrum. 

One key to the—to RFRA’s success is that it was carefully crafted to avoid being outcome determinative. No carve-outs were 

added, which ensure that courts would have the ability to look at 

all the circumstances on a case-by-case basis and make a decision 

particular to each case. 

By passing this law, Congress made it clear that the Federal 

Government must provide religious accommodations in our laws, 

and any laws passed that infringe upon religious freedom must be 

subject to the strictest scrutiny in our courts. 

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

forward to your testimony. 

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I yield back. 

Mr. KING. Thank you, Mr. Chairman. And I appreciate your 

opening statement. 

And now I would recognize the ranking member for an opening 

statement. 

Mr. COHEN. The ranking member is not here, but he does have 

a statement that I would like to enter into the record, without objection. 

Mr. KING. Without objection, so ordered. 

STATEMENT SUBMITTED BY THE HONORABLE JOHN CONYERS, JR., MICHIGAN, RANKING MEMBER, COMMITTEE ON 

THE JUDICIARY 

This material is available at the Committee and can be accessed 

on the committee repository at: http://docs.house.gov/meetings/ 

JU/JU10/20170216/105593/HHRG–115–JU10–MState-C000714– 

20170216.pdf. 

Mr. COHEN. And I also have some statements that I would like 

to enter in response to some of the contentions that religious freedom requires the government to permit discrimination against 

members of the LGBTQ community and against women’s health 

and reproductive rights as well as support and consideration—considering the discriminatory nature of the Muslim travel ban order. 

I would ask unanimous consent to allow these records—letters into 

the record from Catholics for Choice, the Human Rights Campaign, 

NARAL, Anti-Defamation League, and basically, you know, rounding up the usually suspects. 

Mr. KING. Hearing no objection, also so ordered. 

Mr. COHEN. Thank you. 

Mr. KING. Thank you, Mr. Cohen. And they will be entered into 

the record. 

This material is available at the Committee and can be accessed 

on the committee repository at: http://docs.house.gov/meetings/ 

JU/JU10/20170216/105593/HHRG–115–JU10–20170216– 

SD003.pdf. 

Mr. KING. And without objection, other members’ opening statements will be made part of the record. Let me now introduce our 

witnesses. 

Our first witness is Ms. Kim Colby. Ms. Colby is the director of 

the Center For Law and Religious Freedom of the Christian Legal 

Society. Our second witness, Ms. Smith, Ms. Hannah Smith, and 

she is senior counsel at Becket. And our third witness is Rabbi 

David Saperstein, who also served as director of the Religious Action Center of Reform Judaism and also former U.S. Ambassador 

at Large for International Religious Freedom. And our fourth witness is Mr. Casey Mattox. Mr. Mattox is a senior counsel and director at the Center for Academic Freedom. 

Welcome to each and all of the witnesses. 

And the witnesses’ written statements will be entered into the 

record in their entirety. I ask that each witness summarize his or 

her testimony in 5 minutes or less. To help you stay in the timeframe, there is a light in front of you. And that light will switch 

from green to yellow indicating that you have one minute left to 

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conclude your testimony. When the light turns red, your 5 minutes 

are up, and we also want you to finish your thoughts however. 

And before I recognize the witnesses for their testimony, it is a 

tradition here in the subcommittee that the witnesses be sworn in. 

So please stand to be sworn. 

Do you swear—please. Do you swear that the testimony you are 

about to give before this committee is the truth, the whole truth, 

and nothing but the truth, so help you God? 

You may be seated. 

Let the record reflect that all the witnesses responded in the affirmative. 

And I now recognize the first witness, Ms. Colby. Please turn on 

your microphone. And you are recognized for your testimony, Ms. 

Colby. 

TESTIMONY OF KIM COLBY, DIRECTOR, CHRISTIAN LEGAL SOCIETY’S CENTER FOR LAW AND RELIGIOUS FREEDOM; HANNAH SMITH, SENIOR COUNSEL, BECKET; RABBI DAVID 

SAPERSTEIN; AND CASEY MATTOX, SENIOR COUNSEL, ALLIANCE DEFENDING FREEDOM’S CENTER FOR ACADEMIC 

FREEDOM 

TESTIMONY OF KIM COLBY 

Mr. COLBY. Chairman King, Ranking Member Cohen, and members of the subcommittee, thank you for inviting me to testify at 

this hearing on our most important freedom: The free exercise of 

religion. I am Kim Colby, director of the Christian Legal Society’s 

Center for Law and Religious Freedom. 

Recently, leading scholars have expressed grave concern about 

the future of religious freedom in America. For example, Professor 

Doug Laycock has written, and I quote, ‘‘For the first time in nearly 300 years, important forces in American society are questioning 

the free exercise of religion in principle, suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized,’’ end quote. 

As if to confirm his warning, 5 months ago, the United States 

Commission on Civil Rights released a report entitled, ‘‘Peaceful 

Coexistence: Reconciling Nondiscrimination Principles with Civil 

Liberties.’’ The report marks a new and profoundly troubling inflection point in the deepening erosion of Americans’ religious freedom. 

For the first time, at least to my knowledge, a Federal agency 

issued an official report that treated religious freedom as something shameful. 

The report arose out of a briefing held by the Commission in the 

words of the written report, quote, ‘‘to learn how best to reconcile 

the conflict which, in certain cases, may exist between those seeking to practice religious faith and those seeking compliance with or 

protection of nondiscrimination laws and policies,’’ end quote. 

But the report’s findings and recommendations make no effort to 

reconcile religious freedom and nondiscrimination. Instead, the report adopts an extremist position. Government should subordinate 

citizens’ religious freedom claims to nondiscrimination claims 

whenever possible, no matter how strong a specific religious freedom claim is or how weak a nondiscrimination claim might be, and 

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modated without denying either person’s ability to live according to 

her deepest convictions. 

In perhaps the most disturbing paragraph in the report, the 

Commission chairman disparaged religious freedom when he wrote, 

and I quote, ‘‘The phrases ‘religious liberty’ and ‘religious freedom’ 

will stand for nothing except hypocrisy so long as they remain code 

words for discrimination, intolerance, racism, sexism, homophobia, 

Islamophobia, Christian supremacy, or any form of intolerance,’’ 

end quote. 

Four commissioners issued a longer statement equally dismissive 

of religious freedom, which concluded that nondiscrimination laws 

stand as a bulwark against the assaults of intolerance and animus. 

But, of course, that is equally true of religious freedom laws, which 

also serve as a bulwark against intolerance and animus. Nondiscrimination laws serve a valuable purpose. No one familiar with 

American history can doubt the need for them. 

But history also teaches that religious people often are the targets of intolerance and animus from government itself. For that 

reason, American nondiscrimination laws universally include religion in their core list of protected categories, along with race, color, 

sex, and national origin. How ironic that nondiscrimination laws 

intended to protect religious persons are now used to stigmatize religious persons because they wish to live according to their deeply 

held religious beliefs. 

History teaches that governments at some point almost inevitably target individuals and groups for persecution based on religion, but America has chosen a different path. Our Nation has 

dedicated itself to religious freedom for all citizens. This promise 

has drawn millions to America as the only reliable haven from 

ruthless religious persecution. Robust religious freedom assures all 

Americans that their faith will be respected, regardless of shifting 

political whims. 

As another religious freedom scholar, Professor Michael McConnell wrote 3 years ago, and I quote, ‘‘Religious freedom is one thing 

nearly all Americans, left and right, religious and secular, have 

been able to agree upon, perhaps because it protects all of us. Because none of us can predict who will hold political power, all of 

us can sleep more soundly if we know that our religious freedom 

does not depend on election returns,’’ end quote. 

We need not and must not choose between religious freedom and 

nondiscrimination principles. Instead, we should reaffirm our commitment to a society in which all Americans are free to live according to their most deeply held beliefs. 

Mr. KING. Thank you, Ms. Colby. 

And the chair now recognizes Ms. Smith for your testimony. 

TESTIMONY OF HANNAH SMITH 

Ms. SMITH. Thank you. 

Chairman King, Ranking Member Cohen, and distinguished—— 

Mr. KING. Turn on your microphone, please. 

Ms. SMITH. Good afternoon, and thank you for the invitation and 

opportunity to offer testimony at today’s hearing on the state of religious liberty in America. My name is Hannah Smith, and I am 

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senior counsel at Becket, a nonprofit public interest law firm dedicated to protecting religious liberty for people of all faiths. 

At Becket, for over 20 years, we have defended Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and 

Zoroastrians. Today, I would like to illuminate the state of religious 

liberty in America through the prism of recent cases to focus on 

two principles. 

The first principle is that government must provide equivalent 

legal protections to religious groups when it provides those same 

protections to secular groups. The second principle is that religious 

organizations that perform so much of our country’s charitable 

works should not be discriminated against merely because of their 

religious status. 

My first point is illustrated through a recent Becket victory involving Sikhs in the Army. Sikhism is the world’s fifth largest religion, and two of its core tenets include maintaining uncut hair and 

wearing a turban. These religious tenets have not prevented Sikhs 

from serving admirably in the U.S. military since the World War 

I era. But in 1981, the military passed a ban on beards. This ban 

contained multiple exceptions for secular reasons, accommodating 

nearly 100,000 soldiers with beards for medical or tactical reasons. 

But other than a few rare cases, the rule did not allow beards for 

religious reasons, and this ban resulted in the near total exclusion 

of Sikhs from the U.S. military. 

So in 2016, Becket petitioned the Army to grant a religious accommodation to West Point graduate, Army Ranger and Bronze 

Star Medal recipient Captain Simmer Singh. After receiving this 

request, the Army ordered him to undergo a series of tests that 

other soldiers permitted to wear beards for medical reasons were 

not required to complete. Becket brought a lawsuit under the Religious Freedom Restoration Act to prevent this discriminatory testing and to obtain an accommodation for Captain Singh. Relying on 

RFRA, the court ruled in Captain Singh’s favor and ordered the 

Department of Defense to cease all discriminatory testing against 

him, and granted him temporary protection. 

At the beginning of this year, the Army issued new regulations 

providing that sincere followers of the Sikh faith will no longer be 

forced to choose between their religious beliefs and serving their 

country in the Army. This case demonstrates an important principle that should be uncontroversial. The government should not 

deny protections for religious reasons without justification when it 

is willing to offer those same protections for other reasons. 

This same principle is demonstrated by Becket’s Supreme Court 

case successfully defending a Muslim prisoner where the government prohibited him from growing a religiously required beard, 

even though it allowed beards for medical reasons. This principle 

is also at the heart of Becket’s litigation defending the Little Sisters of the Poor, where the government is willing to exempt big corporations, its own military healthcare system, other churches, and 

small businesses from the HHS mandate, yet it will not offer the 

same protection to a group of nuns serving the elderly poor. 

The second principle that I would like to discuss is that religious 

organizations that are simply trying to do their charitable work 

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gious. America’s faith communities feed the hungry, house the 

homeless, and provide many other services, yet some States have 

laws on the books that make it difficult for these groups to do their 

good work. These laws include Blaine Amendments. 

One current case on the Supreme Court’s docket, Trinity Lutheran Church against Pauley, illustrates the problems associated 

with Blaine Amendments. In that case, Missouri’s Blaine Amendment prevented a religiously affiliated preschool from receiving a 

State grant to refurbish its playground even though other nonreligious schools could receive funds to do the very same thing. 

In another Blaine Amendment case, Becket represented Prisoners of Christ, a small nonprofit that has partnered with the State 

of Florida to help recently released prisoners reenter society. With 

a success rate at nearly three times the national average, Prisoners 

of Christ has helped 2,300 former inmates to get back on their feet. 

Despite these impressive results, an activist group relying on Florida’s Blaine Amendment sued to prevent the State from partnering 

with this faith-based group. We successfully defended the prison 

ministry against this challenge, and Prisoners of Christ continues 

to partner with the State of Florida to do its vital work, reducing 

recidivism rates. 

In conclusion, Becket applauds Congress’ commitment to the 

principle that religious liberty is fundamental to freedom and to 

human dignity. 

And I thank you for your time and look forward to any questions 

you may have. 

Mr. KING. Thank you, Ms. Smith, for your testimony. 

And the chair now recognizes Rabbi Saperstein for his 5 minutes. 

Rabbi. 

Rabbi SAPERSTEIN. Chairman King, Ranking Member Cohen, and 

members of the community, over the past 2 years—over the past 

2 years, I was honored to serve as the United States Ambassador 

at Large for International—this is on? 

Mr. KING. Turn on your mike, please. 

Rabbi SAPERSTEIN. Sorry. 

Over the past 2 years, I was honored to serve as U.S. Ambassador at Large for International Religious Freedom and had the 

privilege to work closely with many of you on both sides of the aisle 

and many of those in the organizations represented here. This was 

an issue that galvanized people across ideological, religious, political lines, and I would acknowledge particularly Mr. Franks’ work 

in this effort. 

It is, therefore, especially painful for me that in our own Nation, 

a limited number of core issues and religious freedom so divide us. 

What I believe the issues we discuss—while I believe the issues we 

discuss here are of the utmost importance, at this time, when we 

are reflecting on the state of religious liberty in the United States, 

let us not lose sight of the fact that compared to other nations, the 

freedoms we have to worship; to organize our religious institutions 

and communities as we see fit; to celebrate our festivals openly, 

freely, and safely; to proselytize; teach, preach as we see fit, remains inspiring. 

The—permit me to focus on three general areas this afternoon: 

The executive order on the immigration refugee, the Johnson 

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amendment repeal, and the purported executive order on religious 

freedom. 

The widespread opposition to the Muslim ban is set in the context and heard through the filter of months of anti-Muslim rhetoric 

in the campaign; threats of a Muslim registry; the President’s explicit statements, even after the election, referencing a Muslim refugee ban; significant increase in hate crimes. You eluded, Mr. 

Cohen, to the new report that came out from the Southern Poverty 

Law Center and the state of new anti-Muslim hate groups. Reports 

of children who are bullied at school; increased opposition to 

mosques being built in communities, desecration, arson of mosques, 

and other communal sites; harassment on the internet, by strangers on the street. As I have found in so many nations across the 

globe, impingement on religious freedom includes the pressures 

and fears that emanate from perceived societal and governmental 

hostility, which chill open expression of religious identity in communal life. 

The President has indicated that he wants to change the Johnson 

amendment, totally destroy it, as he said at the National Prayer 

Breakfast, which prohibits houses of worship, like all tax-exempt 

organizations, from endorsing or opposing political candidates and 

parties. There are four reasons why the amendment should not be 

changed. 

First, if houses of worship become involved in campaigning, they 

run a serious risk of new extensive government regulation and 

monitoring of their religious activities. 

Second, the prohibition against electioneering by nonprofits helps 

avoid undermining the structure of campaign finance regulations. 

If political donors can bypass those restrictions by giving their campaign contributions through a church and getting a tax deduction 

for it, it would result in a major diversion of campaign funding into 

houses of worship which will become slush funds for campaigns. 

And since churches do not report who their donors are, it would 

greatly reduce transparency in election campaigns. 

Third, repealing current law would almost certainly have a divisive impact on houses of worship. We have enough divisions over 

liturgy and music and pastors and sermons and theology without 

importing America’s explosively divisive electoral politics. Our 

houses of worship are among the few places that people of differing 

cultural, political, ethnic divides can find a sense of unity and comity so desperately needed in our Nation today. 

And, finally, pastors and clergies already have the right to speak 

about political issues, and even though it is being debated in campaigns from the pulpit under the current rules and a personal capacity without the use of church funding, clergy have the same citizen rights to endorse or oppose candidates or parties or anyone 

else. 

The draft executive order that has been reported raises a number 

of issues of primary concern. But at the core of those concerns is 

the notion of a free exercise claim to discriminate. 

To my colleagues here and the distinguished members of the 

committee, help me understand what are the limits of this right 

being asserted to discriminate. If an employer, small business 

owner, a head of a religiously affiliated nonprofit asserts a insinSSpencer on DSK7TPTVN1PROD with HEARING

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cere religious belief that Blacks are inferior to Whites; Catholics, 

Muslims, Jews, and Hindus are inferior to Protestants; differently 

abled are inferior to nondisabled; Latinos to Anglos, if they assert 

a sincere belief that religious quality of their business and their 

nonprofit requires that they only serve or hire those of the same 

religion, do they have the right to bar those customers and employees who are members of what are protected classes? 

Even if we agree that racial discrimination should be treated differently, if religious claims to discriminate must be accommodated, 

it threatens the entire scheme of civil rights. It will affect the 

LGBT community particularly, women particularly. And the principle that government money should not be used in tax dollars to 

discriminate is an important bedrock core. 

Our courts, including the Supreme Court today, has upheld the 

right, the compelling interest to end discrimination as a justification to limit the free exercise of religion. We need to work together 

to find ways to balance it to embody as much as possible without 

losing either of the two principles. 

Mr. KING. Thank you, Rabbi Saperstein. 

The chair now recognizes Mr. Mattox for his testimony. 

TESTIMONY OF CASEY MATTOX 

Mr. MATTOX. Mr. Chairman, members of the committee, my 

name is Casey Mattox. I am senior counsel with Alliance Defending 

Freedom. 

Our Nation enjoys a rich heritage of protecting First Amendment 

freedoms, ensuring Americans are able to freely speak and act consistent with their beliefs, even when those beliefs are unpopular. 

In fact, until very recently, a hearing on religious freedom might 

have been rather boring, because we would have all been on the 

same side. 

Just weeks after Roe v. Wade, even its defenders supported the 

Church amendment, named for its democratic sponsor, ensuring 

that the government could not force Catholic hospitals and medical 

professionals to violate their conscience. It passed 372 to 1 in the 

House and 92 to 1 in the Senate. That is naming a post office territory. And I doubt any legislation any of you have ever advocated 

for has had that kind of support. 

That bipartisanship on conscience persisted with Presidents Carter and Clinton signing additional religious freedom laws. We have 

united to protect everything from wartime conscientious objectors 

to the rights of parents to direct their children’s education. 

The returns on America’s investment in religious freedom are not just a diverse and pluralistic society, but over $1 trillion in services 

provided by religious ministries and nonprofits because they are 

free to serve their communities consistent with their faith. Sadly, 

in recent years, this commitment to preserving religious freedom 

has become contingent on whether the person’s beliefs conform to 

the prevailing government orthodoxy. 

Justice Alito rightly called the growing threat of government to 

individual conscience ominous this past summer in his dissent in 

the case, and for good reason. ObamaCare forced the Little Sisters 

of the Poor and religious colleges to serve as a drug mule in violation of their conscience, but now its compelling some families to 

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pay for other people’s elective surgical abortions. In California, 

with the prior administration’s blessing, of even mandating that 

churches pay for abortions from the offering plate. 

You have also heard of many individuals in ministries being targeted by the government for their suddenly controversial but historically common belief about marriage. Just this morning, the 

Washington State Supreme Court ruled that the State can force a 

72-year-old grandmother to create custom expression for an event 

that violates her conscience. Since when did we decide it is okay 

for the government to personally and professionally destroy someone because of their beliefs? This should frighten all of us. 

You can celebrate the kind of government-compelled speech and 

targeting of religious beliefs that happened to the Stormans and 

Baronnelle if you like, but you can’t do that and claim that you 

support religious freedom. And this ominous threat to religious 

freedom is impacting people who could never have dreamed that 

the fight would come to them. 

Donald and Ellen Vander Boon owned the West Michigan Beef 

Company, a meat processing facility employing over 45 hard-working Americans and putting food on the table for countless families. 

They are at risk of having their plant shut down because the 

USDA inspector claimed that an article discussing marriage that 

Mr. Vander Boon had left on the break room table violated a new 

USDA antiharassment policy. 

Or even children’s safety on playgrounds. We will be before the 

Supreme Court later this spring in Trinity Lutheran because the 

State of Missouri rejected a preschool from a program supplying recycled rubber tires for playground services solely because the 

church runs the daycare. 

The 115th Congress and the new Trump administration have 

much to do to restore respect for these fundamental freedoms. 

Thankfully, President Trump, recognizing that religious freedom is 

good for everyone, promised during his campaign that he would 

make religious liberty his first priority. We hope that he will keep 

his promise and sign an executive order ensuring Americans are 

not unfairly punished by the Federal Government for peacefully 

living consistent with their beliefs. And his commitment should 

also embolden Congress to lead in preserving fundamental freedoms by passing legislation like the Conscience Protection Act, the 

First Amendment Defense Act, and the Free Speech Fairness Act. 

But this leaves me to my final point. 

To fully address the future of religious freedom, we must also address the growing disregard for the First Amendment on our university campuses. Today’s students are tomorrow’s members of 

Congress, judges, teachers, and voters. They will only be able to 

protect the First Amendment if they understand and value it. But 

our universities are, frankly, failing. Heavily funded by taxpayer 

dollars, they are silencing students’ speech through speech codes, 

speech zones, bias response teams, not teaching them to civilly engage in a marketplace of ideas where the confidence that in America you are free to speak and act consistent with your beliefs. ADF 

has assisted hundreds of students and student groups of varying 

religious and political beliefs. 

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Just recently, a Michigan Young Americans for Liberty student 

arrested for distributing copies of the Constitution on her own campus. And Young Americans for Freedom at Cal State, L.A., where 

faculty members actually linked arms with others to prevent students from entering an auditorium to hear a speech on, ironically, 

freedom of speech. These cases aren’t just about these students, but 

the First Amendment lessons being taught to all the future legislators, teachers, and voters on those campuses. 

Congress has a responsibility to ensure that the hundreds of billions of dollars in Federal taxpayer funds are being used in a way 

that advances, not undermines, respect for First Amendment rights 

of all Americans. 

Mr. MATTOX. Members of the committee, the real test of liberty 

is what happens when you disagree? Please don’t allow the current 

politically popular beliefs to become a litmus test for participation 

in civil society. Demand more from the public universities that are 

training the next generation, and preserve every citizen’s freedom 

to peacefully live and work consistent with their conscience and 

free from fear of government punishment. Thank you. 

Mr. KING. Thank you, Mr. Mattox. Thank you for your testimony. 

And I will now proceed under the 5-minute rule with questions. 

And I will begin by recognizing myself for 5 minutes. 

And I will say, Mr. Mattox, on campus and around in the communities around America, we are seeing more and more pushback 

on freedom of speech and the resistance you described in your testimony. And aside from what Congress can do, how would you suggest we approach this? I don’t remember any time in the coupleplus centuries of our country that we have had this kind of resistance to freedom of speech. How do you describe this drift, what has 

caused it, and what would you suggest we do about it as a people? 

Mr. MATTOX. Thank you for the question. You know, I think it 

is directly tied to this larger cultural problem we have. I think that 

on many university campuses, you have administrators who don’t 

seem to understand that they are, in fact, bound by the First 

Amendment, that it actually applies to them. And they communicate that message to their students. They act as if they are a private institution separated from whatever constraints the First 

Amendment would provide. And that is the great concern, that students are going to teach—are going to carry that lesson forward, 

this is how you act as a government official. Because in many 

cases—— 

Mr. KING. That is why professors get tenure, and they are insulated from criticism, including criticism from their students, and so 

this grows on our college campuses. And do you think it is because 

the public doesn’t know or understand this is going on? And why 

do people write tuition checks to people that will educate them in 

such a way? 

Mr. MATTOX. You know, the only permit that a student should 

require to be able to speak on a university campus is the First 

Amendment. And I think everyone seems to agree with that. I 

think the difficulty is that people don’t—people don’t grasp the connection between what is happening on campuses and what is going 

to end up happening in the rest of our culture. They think of students as being there in that place, and they are not permitted to 

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speak freely, and that seems like a problem for them. But the bigger problem is that those people are going to leave those campuses, 

and they are going to be the people who are going to be sitting on 

this dais one day. So it is critically important that they are learning about the First Amendment, understand it, and see how it is 

supposed to actually play out. 

Mr. KING. Now we have students on campus that are learning 

that if their feelings are hurt, others don’t have a right to freedom 

of speech, and we are being trained to have the sensitivity, the responsibility to anticipate if somebody’s feelings are hurt before we 

speak something that may well be objective truth. So I just take 

this another step, then, and say we are—one of the foundations of 

Western civilization is rational thought and reason. 

Do you see that being eroded in colleges and universities across 

our country? 

Mr. MATTOX. Well, it is certainly difficult on many university 

campuses these days to actually try to have an honest conversation, because you will have speech codes. You know, the people 

have calculated that only about 6 percent of universities actually 

have written policies that are—that adequately protect students’ 

First Amendment rights. So it is a serious problem. 

Mr. KING. Thank you, Mr. Mattox. 

And I turn to Rabbi Saperstein. And I just—as I listened to your 

testimony, I began to think about a circumstance that took place 

at Walter Reed hospital just a few years ago where they came out 

with a ruling, and it was a 4-page document. Speaking from memory here. On the fourth page of the document, part of that memo 

was that the religious workers who came into Walter Reed hospital 

would not be allowed to bring in any Bibles or other religious artifacts, even to go in and to serve our wounded troops, some of whom 

may be spending their last days at Walter Reed. And it was a very 

precise and inclusive order, and it was definitive. It wasn’t—you 

couldn’t—it wasn’t ambiguous. 

And I would ask where you would come down on an order like 

that that was part of this—remains now part of the public record 

of Walter Reed hospital. 

Rabbi SAPERSTEIN. I am not familiar with the particular situation, but stepping back from it and just answering that on general 

principles, a government official has a right to wear their own religious garb, here, of course, the yarmulke, Sikh turban, whatever it 

might be, that identifies them, who they are. They are not allowed 

to use their position there to proselytize or in any course or way 

to offend people. 

If somebody who is a patient asks for something, accommodating 

that kind of request so that they can live out their religious conscience is an appropriate action here. So— 

Mr. KING. Then you would say that they should be free to bring 

in their religious artifacts, they just can’t be allowed to force that 

on an unwanted scenario? 

Rabbi SAPERSTEIN. I am not sure what it means to bring it in. 

If they are bringing it in, carrying it around with them, it is—you 

know, the difference between forcing it on them becomes a little bit 

opaque. But I think the general principle between their own idenSSpencer on DSK7TPTVN1PROD with HEARING

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tity and what they are able to do in a way that wouldn’t convey 

they are trying to impose it on others is an important—— 

Mr. KING. I would point out they reversed that decision before 

sundown that day. And I am glad that doesn’t stand today. And I 

appreciate your response. 

And I would like to just quickly stretch the limits a little bit and 

say to Ms. Smith, can a person be forced to violate their conscience 

by, I will say, a Federal edict that has to do with religious liberty? 

For example, baking a cake for a wedding you might disagree with 

the scenario of that wedding, or setting up flowers, those kind of 

things? Can they be forced to violate their conscience? 

Ms. SMITH. In those cases, I want to emphasize that I really 

think we are not dealing with blatant discrimination. What we are 

dealing with is freedom of expression. And I think all of us in this 

room would agree that in a robust, pluralistic society like America 

is, where we have so many different views on so many fundamental 

issues—life and marriage and sex and abortion and death penalty—that we need to be able to allow others to express those 

views, to live out their religious freedom without government coercion. 

But more importantly, we should not be allowing government to 

step in and choose winners and losers and say, we are going to penalize you because you have a view that is in the minority that we 

don’t support. And so I think these cases really need to be viewed 

in the lens of freedom of expression, and that we need to protect 

that freedom of expression for those religious individuals. 

Mr. KING. Thank you, Ms. Smith. I appreciate it. 

And I yield now to the—recognize the gentleman from Tennessee 

for his 5 minutes. 

Mr. COHEN. Thank you, sir. 

Ms. Smith, following up on that question. What if a couple—that 

bakers decided that they didn’t want to bake a cake for an interracial couple? Would Loving v. Virginia have any effect in civil 

rights laws in not allowing—requiring them to bake that cake, give 

them a pizza, or whatever other things we have had? 

Ms. SMITH. Well, again, just going back and looking at some of 

the examples that had been part of the public discourse on this 

subject over the last few years. For example, Walmart decided that 

it didn’t want to bake a cake that had a Confederate flag on it. 

Should we force Office Depot to print posters that deride Planned 

Parenthood? No, we shouldn’t. 

There are a variety of different moral views that have been taken 

by corporations and individuals, and we protect that free expression because it is a matter of free speech. And, again, I would just 

point you to the Hurley decision, which was a unanimous opinion 

at the Supreme Court, where the Supreme Court said that expression trumps antidiscrimination laws. 

So I think we really need to be sensitive to the fact that these 

cases are really about expression, and whether we agree or not 

with the expression, we need to defend the right of the speaker. 

Mr. COHEN. So you are saying that they could deny an interracial couple because they didn’t agree with interracial marriage, 

is what you are saying, because that is their right of expression. 

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Ms. SMITH. No, that is not what I said. And I think what is important to contrast in the Loving—— 

Mr. COHEN. Can you answer the question? 

Ms. SMITH. In the Loving case, I think it is really important to 

contrast what the Supreme Court said in Obergefell. When you 

look at the language that Justice Kennedy uses in the majority 

opinion in Obergefell, he refers to the religious beliefs of those who 

believe in traditional marriage as decent and honorable. These are 

sincere beliefs that are held by good people. 

And the language that the Court—in fact, all nine members of 

the Court—adopted in that opinion was one to say, look, there are 

a lot of different views on marriage. We should encourage that diversity of views on marriage, and these are decent and honorable 

people who hold these views, and we are not going to deride them 

here. Those are the words of Justice Kennedy. 

So I think there is a very different case when you are talking 

about Obergefell than when you are talking about a case like Loving. 

Mr. COHEN. So in Loving, you are saying they can or cannot discriminate against the interracial couple? Yes or no? 

Ms. SMITH. Look, what I am saying is race is very different in 

our society. Okay? In every context—— 

Mr. COHEN. The Supreme Court is the same, though. Obergefell 

and Loving are both Supreme Court cases, raising the idea that 

there is a right to get married. 

Ms. SMITH. So race is very different, and race has always been 

different in our constitutional lexicon. We have always recognized 

that the government has—— 

Mr. COHEN. So you are saying they would not be allowed to discriminate—— 

Ms. SMITH. We have always said that the government has a very 

powerful interest—— 

Mr. COHEN. Ms. Smith, you are not going to answer the question. 

It is a yes-or-no answer. Yes or no, could the couple say, I will not 

do you a cake because I don’t believe—my religious beliefs do not 

allow me to give an interracial couple a cake? Yes or no? 

Ms. SMITH. I believe that race is special. Race is different. 

Mr. COHEN. Rabbi Saperstein, how do you think about that? Can 

you give me an answer how you think that would work? 

Rabbi SAPERSTEIN. I think that the compelling interest of the 

government in ending discrimination here would limit the religious 

claim involved. If they want to participate in commerce, then they 

have to abide by the antidiscrimination rules. If there is a way 

within that to accommodate some of the religious freedom claims, 

that is a discussion we can have. But the core answer to your question is the compelling interest of discrimination prevails. And I 

think that was at the basis of the Supreme Court’s nine-nothing 

decision today in the Arlene Flower case. 

Mr. COHEN. Have you seen a rise in anti-Semitic and/or antiMuslim behavior in the country since the election of 2016 or during 

the campaign of 2016 forward? Rabbi Saperstein. 

Rabbi SAPERSTEIN. Yes. You know, there have been reports from 

the ADL and Southern Poverty Law Center from police departments about significant escalation in hate speech, hate crimes 

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against, particularly, the Muslim and the Jewish community. Very 

alarming. 

Mr. COHEN. It is alarming. And I can testify of my own that I 

didn’t get too many jabs for being Jewish until this past 3 to 6 

months. And I have seen a lot of them on social media and it is 

scary. 

Rabbi SAPERSTEIN. This campaign seemed to have lifted some of 

the powerful cultural and social constraints that we had against 

hate speech in this country. Millions of people we know hold prejudicial views, but you didn’t articulate them except on the fringes. 

But the confluence of the internet’s anonymity that allows for that 

expression and then the discussion in the campaign has lifted some 

of those constraints. And I think—I hope people on both parties, 

leaders from both parties, will work together with the religious 

leaders of America to help restore some of those restraints. 

Mr. COHEN. One last question. Do you agree with Ms. Colby’s 

claim that the report by the United States Commission on Civil 

Rights disparages religious freedom or that there is an erosion of 

religious liberty in America? Rabbi Saperstein. 

Rabbi SAPERSTEIN. Yes. I was troubled by some of the language 

in the report, Mr. Cohen. I thought it was excessive in this. I think 

where they come down on that core question I indicated of, is there 

a compelling interest in terms of enforcing discrimination laws that 

will restrain the exercise of religion, make those people claim a 

right to discriminate. I think that finding is a correct finding. I 

thought the language in it was excessive and was not helpful in 

terms of giving the respect to religious freedom that the fact it is 

enshrined in our First Amendment requires. 

Mr. COHEN. Thank you, sir. 

Mr. KING. Thank you. Mr. Cohen yields back. 

And the chair now recognizes the gentleman from Florida, Mr. 

DeSantis. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Rabbi, I read your testimony, and you talk about the President’s 

executive action to prevent terrorist infiltration into America, that 

it would be barring Muslim refugees from seven countries and, effectively, favor Christians at the expense of Muslims. Correct? 

Rabbi SAPERSTEIN. Yes. 

Mr. DESANTIS. What is your basis for that? 

Rabbi SAPERSTEIN. The countries selected were countries with, 

overwhelmingly, a Muslim population—— 

Mr. DESANTIS. That is not true. There are two different aspects. 

The first aspect are seven countries that Congress had previously 

identified. That was for a 90-day overall immigration moratorium. 

The second part of it applied to refugees was in the 120-day moratorium on the entire refugee program worldwide. So—and then 

within that refugee—— 

Rabbi SAPERSTEIN. And he made clear afterwards, the minorities 

in those countries should have preference afterwards. And that 

means in the majority Muslim—— 

Mr. DESANTIS. Worldwide. No, no, no. The refugee program, in 

the executive order, it said that the relevant service secretaries are 

further directed to make changes, to extent permitted by law, to 

prioritize refugee claims made by individuals based on the reliSSpencer on DSK7TPTVN1PROD with HEARING

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gious-based persecution, provided that the religion of the individual 

is a minority religion in the individual’s country of nationality. 

That applies worldwide. That doesn’t just apply to Christians. It is 

not favoring a Christian refugee over a Muslim refugee. 

Now, maybe in your testimony you meant to just simply say that 

it is much more likely that a majority of Muslim country would oppress a Christian minority than vice versa. I don’t know if that is 

what you are saying. But the executive order does not say that. 

You are conflating one part of the executive order with another. 

And I appreciate your coming here, but if you are testifying as 

an expert on the law, you should be doing it and putting it out 

there accurately. And you didn’t do that in this case, and it is disappointing to read that. 

Rabbi SAPERSTEIN. In addition—in addition to the fact that, insofar as those countries are concerned, the seven countries are concerned, that it would—that the favoring of minorities would result 

in the non-Muslim population—— 

Mr. DESANTIS. That happens worldwide. Worldwide. 

Rabbi SAPERSTEIN. Insofar—insofar as that is the case, it also 

has to be said in the context of everything else I cited in the testimony. 

Mr. DESANTIS. The seven countries are not relevant. 

Rabbi SAPERSTEIN. All of the discussions, including the President’s, after the election about—talking about a Muslim ban, that 

is a filter through which the world hears it, that is a filter through 

which religious leaders on the right and the left in America—— 

Mr. DESANTIS. That was not, in fact, what was put in there. And 

so we deal with things. We actually read the statutes. We read 

these orders. We read the different things. And I appreciate the 

rhetoric, and maybe that is not helpful, but that does not change 

the fact that the refugee provision for religious persecution was for 

any minority religion in the entire world that applies to Muslims, 

it applies to Christians. 

And, yes, in the serious situation, we had a situation where 10 

percent of the population is Christian. They were facing a disproportionate amount of persecution, and the amount of refugees 

that made it to the United States were a small, small fraction of 

1 percent. 

Let me ask you this, Ms. Smith: We now have a change of administration. There have been cases about Little Sisters of the 

Poor, a lot of regulatory burdens on the free exercise of religion. We 

talk about things like Hobby Lobby, that was not enacted by a statute. That was the bureaucracy, you do this, then the bureaucracy 

grows, and it infringes on people’s free exercise of religion. 

So with a new administration and a new HHS Secretary, are 

there going to be opportunities to relieve these burdens appropriately through the—through the administrative process rather 

than having to go to court? 

Ms. SMITH. Well, we certainly hope so. I first just want to thank 

Members of Congress who have stood up for the Little Sisters of 

the Poor and who have advocated for them. We really appreciate 

those of you who have stood by us for the last 4 years in this litigation. It has been really astonishing to see the government continue 

this fight against the Little Sisters and to argue over 4 years that 

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there was really no other way that they could accomplish this goal 

without using the Little Sisters’ healthcare plan. You know, we can 

put a man on the moon, and we can put mail in everybody’s mailbox every day, but we can’t figure out a way to get these contraceptives to women without using the nuns’ healthcare plans. 

So I do think that it is particularly astonishing in light of the 

fact that the government has granted exemptions to big corporations, its own military healthcare system; it has granted exemptions to small businesses and other churches. It certainly can 

broaden the exemption for the Little Sisters of the Poor. And we 

hope the administration will do just that and allow the Little Sisters to get back to the good work that they do serving the elderly 

poor that they have done for the last 175 years. 

Mr. DESANTIS. So I think that, as government expands, we’re 

going to continue to have these conflicts. And if you had a limited 

government and actually let the people closer—governments closer 

to the people resolve a lot of this stuff, we would have less conflict 

as a society. And so I hope that this Congress will take that under 

advisement and govern itself accordingly. 

And I yield back. 

Mr. KING. I thank the gentleman from Florida. 

And now I recognize the gentleman from New York, Mr. Nadler, 

for his 5 minutes. 

Mr. NADLER. Mr. Raskin is next. 

Mr. KING. I would be happy to recognize Mr. Raskin for his 5 

minutes. 

Mr. RASKIN. First of all, I want to thank the gentleman from 

New York for his graciousness. 

Thank you, Mr. Chairman. 

I want to start, not by berating or castigating any of our witnesses, but thanking all of you for your work on behalf of religious 

freedom and religious liberty, which gets to my first question. Some 

people would cast the current global political condition as a war between Christianity and Islam, which obviously promotes a certain 

negative dynamic in terms of our ability to interact with more than 

1 billion people on Earth. 

The other way of framing America’s role in the world is that we 

were the first nation conceived in revolution against monarchy and 

theocracy to declare religious liberty and religious freedom and political freedom, the hallmark of our society. 

Now, it was complicated, though, because the people who first 

got over here were religious refugees. The Puritans were fleeing 

the Anglican Church. And so they got to freedom in Massachusetts. 

Hallelujah. But then they turned around and set up their own little 

theocracy and began to tyrannize the Quakers, who were driven to 

Rhode Island and then Pennsylvania, where you also found the 

Anabaptists. And every State kind of developed its own religious 

character. My home State of Maryland, the Free State, was a State 

that was open to Catholics being first class citizens, but they discriminated against Jews and said they couldn’t hold office and so 

on. And that was the pattern around the country. 

The development of our religious freedom is the chronicle of the 

progress of two principles: One is that everybody can practice exactly as they want to, as they see to worship, but also they can’t 

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gain state power and oppress everybody else. The first is the free 

exercise principle. The second is the Establishment Clause: no establishment of religion. 

Okay. Now, Rabbi and Ambassador Saperstein, let me start with 

you. To what extent in your work as Ambassador At Large, Religious Ambassador, were you able to carry the real great story of 

America to the rest of the world? To what extent are you able to 

say that what makes us a miraculous country is the fact that we 

separated church from state, we broke from the history of inquisition and crusades and witchcraft trials and so on, and we proclaimed religious freedom for each person? To what extent is that 

story being heard around the world? 

Rabbi SAPERSTEIN. It was a central message in my work. It was 

already recognized by thoughtful people and leaders, political leaders and religious leaders with whom I met across the globe. In addition to that, the confluence of the three clauses of the Constitution—no religious test for office, free exercise of religion, no establishment of religion—it is something—a wall keeping government 

out of religion, allowing religion to flourish with a diversity, 

strength, and robustness here unmatched almost anywhere in the 

democratic world. That idea lead to the proposition that, in America, for the first time in human history, your rights as a citizen 

would not depend upon your religious practices, beliefs, or identity—— 

Mr. RASKIN. Or your membership—— 

Rabbi SAPERSTEIN. And it was a central message in the work 

that we did. 

Mr. RASKIN. Well, thank you very much for your work. Forgive 

me for rushing everybody through. We’re allowed only 5 minutes 

here. I’m a constitutional law professor. I would stay here all day 

with you guys if I could. 

So let me just see if we can do this one on a yes/no basis. Leaving 

aside the controverted implications of the President’s executive 

order for a moment, do all of you agree that it would be unconstitutional to have a ban on Muslims entering the country? Formulate 

it like that, and perhaps we can just start, Ms. Colby, with you and 

just go down. 

Ms. COLBY. Yes, a ban on Muslims. 

Mr. RASKIN. Ms. Smith, would you agree that a ban on Muslims 

would be unconstitutional? 

Ms. SMITH. I would agree with that. 

Mr. RASKIN. Rabbi. 

Rabbi SAPERSTEIN. I would. 

Mr. MATTOX. I am not an immigration lawyer. So I am going to 

have to beg out of the question. So I apologize. 

Mr. RASKIN. Would all of you agree that creating a Muslim registry would be unconstitutional in America? 

Ms. COLBY. I’m not sure what a registry is. 

Mr. RASKIN. Well, compelling everybody of a particular religious 

faith to go and sign their name on a government document declaring their religion to be Muslim. 

Ms. COLBY. That would be a violation of the exercise. 

Mr. RASKIN. You would agree that is unconstitutional, Ms. 

Smith? 

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Ms. SMITH. I’m a little hesitant to answer hypotheticals where 

I’m not sure of the exact contours of what you’re talking about. 

Mr. RASKIN. Well, imagine a world without hypotheticals, Ms. 

Smith. There would be no law professors. 

Ms. SMITH. I understand that. But I’m a litigator. I am not a law 

professor. So I care about facts. I care about concrete circumstances. 

Mr. RASKIN. As a litigator, you understand that the bench will 

ask questions that you have to answer. 

So let’s take it away from Muslims then. Would it be unconstitutional to say that all Catholics, all Jews, or all the Seventh-day Adventists have to go and append their name to a public document? 

Ms. SMITH. I think, as a general matter, those types of things are 

highly suspect, yes. 

Mr. RASKIN. Rabbi Saperstein. 

Rabbi SAPERSTEIN. Singling out any protected group, including 

religious group, for behavior—for treatment that you do not do to 

other similarly situated groups is inherently an unconstitutional 

standard and barred by the Constitution. 

Mr. RASKIN. Mr. Mattox. 

Mr. MATTOX. The example there actually is similar to a situation 

that was being imposed by the Department of Education this past 

year where they were listing Christian colleges and calling them 

out as particularly problematic. And those sorts of things raise concerns. That’s probably as much as I can say in the immigration 

context—— 

Mr. RASKIN. No. This is not for immigrants. I’m talking about for 

citizens. 

Mr. MATTOX. No, that would be problematic. 

Mr. RASKIN. You agree it would be unconstitutional to ask everybody in the country who belongs to a particular religious group to 

go append their name? 

Am I out of time, Mr. Chairman? I’m sorry. I had just begun with 

you guys too. 

Mr. KING. The gentleman from Maryland yields back. 

And now the chair would recognize the gentleman from Arizona, 

Mr. Franks, for his 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, I’m glad to see you sitting in that chair. I know 

that you’re a man deeply dedicated to the Constitution. And it was 

my honor to sit in that chair at one point in my life, and it is indeed a special privilege. And I’m glad you are where you are, sir, 

and I congratulate you if somebody hasn’t done so. I think this is 

your first meeting, your first hearing, and it’s especially appropriate in my mind that we’re talking about religious freedom because religious freedom is, in my judgement, the cornerstone of all 

other freedoms. It is astonishing, when you look across the world, 

those places where there is religious freedom, so many other things 

work out well too. There is freedom of expression. There is freedom 

of press. There is abundance, many times, economically. But where 

there is religious persecution and religious freedom is not allowed, 

all kinds of tragic things happen. So I can’t express to you the level 

of significance that I hold this subject and appreciate you for unSSpencer on DSK7TPTVN1PROD with HEARING

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derstanding that for your very first hearing as the chairman of the 

Constitution committee. 

You know, the Bill of Rights passed by the First Congress included protections for religious freedom because, without religious 

freedom and freedom of conscience, obviously, as I’ve said, all other 

religious liberties, all other liberties, religious or otherwise, essentially cease to exist. And if there’s anything that characterizes 

America, it is that we hold these truths to be self-evident, that we 

believe that at that time they believed we were all created, and 

that’s what made us equal. So, essentially, the idea of America was 

a religious statement, a pretty heavy thing. So if we don’t at least 

protect the right of those people that have been the progeny of that 

great document to embrace religious freedom, then I think we 

make a terrible mistake, and we sort of undermine and vitiate the 

whole purpose for this Nation. 

In America, every individual has the right to religious freedom 

and the First Amendment expression so as long as they do not 

deny the constitutional rights of another. And true tolerance, in my 

judgment, Mr. Chairman, doesn’t mean that we have no differences. It means that we’re kind and decent to each other in spite 

of those differences. We recognize that we have differences, but we 

embrace those differences, not because we agree with the other 

guy, but because we see the other guy as a fellow human being. 

And somehow we’re all just trying to find our way home here, and 

we have a sense in the core of every human soul I think that 

there’s something out there bigger than ourselves, and we want to 

embrace that. And the quickest way I think to bring people together is to recognize that, and I hope that we do. 

Thomas Jefferson once said: The constitutional freedom of religion is the most inalienable and sacred of all human rights. Now, 

those are not my words, but I certainly think that he’s on to something there. 

So, Ms. Smith, in your testimony, you detailed the many ways 

in which minority faith groups have benefited from statutory protections for the free exercise of religion, like the Religious Freedom 

Restoration Act, RFRA, and the Religious Land Use and Institutionalized Persons Act. And recently some have called for RFRA to 

be amended, as you know, making it essentially inapplicable to 

Federal laws like the Civil Rights Act of 1964. Do you believe that 

amending RFRA could cause harm to the minority faith groups it 

was intended to protect and essentially for the last 20 years? What 

do you think the implications are? 

Ms. SMITH. I do. And thank you very much for that question. I 

think if you look back over the 24 years that RFRA has been on 

the books and you do a survey of all of the cases in which RFRA 

has been cited—and we’ve actually done this at Becket—not just on 

the Federal level but also on the State level, I think it’s really astonishing to notice that most of the cases where RFRA has been 

used as the basis for a decision are in some ways protecting religious minorities in our country. And I highlighted some of those examples in my written testimony and touched on a few of them 

today in my oral statement, but, you know, Captain Singh, for example, you know, he relied on RFRA. Pastor Soto is another Becket 

client. He’s a Native American pastor. The government came in 

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and raided his powwow and took away their eagle feathers. And it 

was RFRA that actually allowed us to get those eagle feathers back 

for him. 

And there are other stories. There is a wonderful story of a Native American kindergartner in Texas where he wanted to wear a 

braid for religious reasons, and the school grooming policies forbade 

him from doing that. And it was the Texas State RFRA that allowed him to wear his religious braid. 

There is another story that didn’t turn out so well that I think 

is illustrative of how important State RFRAs also can be, and that 

is of a Kansas woman who was a Jehovah’s Witness, and she needed a bloodless liver transplant. And, at the time, that was not 

available in Kansas, but it was available in a neighboring State. 

She was not able to get permission from Medicaid to get permission 

to go out of State to get that procedure so she brought a lawsuit. 

And, at the time, Kansas didn’t have State RFRA. So she had constitutional grounds. Long story short, as her case went up on appeal, her health deteriorated, and by the time her case ended, she 

was no longer in a position to receive that liver transplant, and she 

died. Now had there been a RFRA in Kansas at that time, her lawsuit would have been much quicker, and she probably would be 

alive today. 

So these stories just demonstrate the power of State RFRAs and 

what they do and what they can do to protect religious minorities 

around the country. 

Mr. FRANKS. Mr. Chairman, my time is gone. Thank you, sir. 

Mr. KING. I thank the gentleman from Arizona particularly for 

his remarks and the questioning here today. 

And now I would recognize the gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

Let me ask Rabbi Saperstein the following. You’ve seen—or I assume you’ve seen—the draft executive order on religious freedom 

that’s been circulating in the news media that the Trump administration is supposedly considering implementing. I’ve seen the draft 

language. I want to ask you about that draft executive order. The 

executive order specifies a set of core beliefs for special protection, 

namely the belief that marriage is or should be recognized as union 

of one man and one woman, that sexual relations are properly reserved for such a marriage, that male and female and their equivalents refer to an individual’s immutable biological sex as objectively 

determined by anatomy, physiology, or genetics at or before birth, 

and that human life begins at conception and merits protection at 

all stages of life. The order does specify religious—the order specifies religious views about sex. If this draft order says only those 

specified beliefs would receive protection and accommodation by 

the Federal Government or special protection and accommodation 

by the Federal Government, would that executive order be constitutional? 

Rabbi SAPERSTEIN. I think it raises very serious equal protection 

issues as well as turning over—when you are talking about government contractors, turning over discretionary judgment to that contractor based on their religious belief as to when government services and benefits can be provided to those they serve, and that 

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raises Grendel’s Den/Larkin problems that the Court has been 

very, very resistant about. So I think it raises significant constitutional problems. 

Mr. NADLER. Would it not also raise Establishment Clause questions, setting one belief system or a set of beliefs ahead of others? 

Rabbi SAPERSTEIN. I think this does. 

Mr. NADLER. Thank you. Let me also note that I was one of the 

people who was instrumental back in 1993 in passing RFRA, as 

were you, Rabbi Saperstein, and I was one of the two authors of 

RLUIPA, Religious Land Use and Institutionalized Persons Act. 

And I take pride in those. 

I think, however, that they are subject to misuse and that I think 

much of the debate we are having is really a debate about a sword 

versus a shield. I always viewed RFRA and RLUIPA and Religious 

Freedom Act generally as a shield for your religious beliefs. The 

government cannot impose religious beliefs on you, and government 

should not be able in normal circumstances, in the absence of some 

life-threatening thing or something, to inhibit your ability to follow 

your religion. 

However, it should not be used as a sword to enable you to impose your religious beliefs on someone else. It seems to me that 

that’s the questions that we’ve been getting into and that we’ve 

been addressing so that if a—let’s get to the question of an employer who provides health insurance to his employee and is mandated to do so by government or to pay a fine and his religious belief—his religious belief—Walmart’s religious belief, if Walmart can 

be said to have a religious belief, says that contraception is wrong, 

and, therefore, you, as a Walmart employee, cannot get coverage 

for contraception in violation of your belief that it is perfectly okay. 

How do you balance that? 

Rabbi SAPERSTEIN. The key part of the logic of the Hobby Lobby 

decision was that these accommodations on the least restrictive 

means side of the analysis work because women have a way to get 

contraception. It was built into the system. What you can’t do is 

have a system in which there is an exemption that will leave 

women without that contraception, without that kind of coverage. 

So I have serious problems. 

May I also just point out one other crucial part of this? In 3(c) 

of the executive order, it has your balancing test from RFRA that 

everyone approves of here. When it gets to all of the actual meat 

of the executive order in section 4, it drops all of that. It says— 

the simple wording is the simple assertion of a religious claim to 

discriminate in the areas you asked about and a whole range of 

other areas in almost every agency in the government, requires a 

simple sincere belief that you have a right to discriminate, and 

then there’s no balancing test, not substantial burden, not compelling interest, not least restrictive means. Just the assertion of the 

claim allows—and this would radically—radically—revamp the 

very thing that’s been praised by my colleagues here of RFRA and 

the way that the RFRA system works. 

Mr. NADLER. That would say, in effect, that if you have a religious objection to allowing a gay couple to come into your restaurant—or, for that matter, by analogy, an interracial couple, you 

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late your religious freedom to discriminate on the basis of your sincerely held religious belief that interracial couples or gay couples 

shouldn’t associate with each other. 

Rabbi SAPERSTEIN. Sadly, that’s the way I do read the executive 

order, Mr. Nadler. 

Mr. NADLER. Thank you very much. 

I see my time has expired. 

Mr. KING. The gentleman from New York has yielded back his 

time. 

The chair would now recognize the gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I thank the witness for being here. 

I understand, Ms. Smith, your comment that RFRA allowed 

someone to wear religious clothing or braiding, but I still believe 

that the United States Constitution is what allows people to do 

that, whether or not there’s a RFRA. Unfortunately, there are some 

in the Nation that believe their status as a pseudo-intellectual is 

somehow threatened if they were to allow people to practice things 

that were inconsistent with what other pseudo-intellectuals think 

is appropriate. And, therefore, we have had our freedoms madly infringed upon. 

It’s also such an irony, for example, we see in Germany—and I 

have German lineage on my father’s side, my great-grandfather 

came over in 1870. Because, I think, Germany was, you know, behind the Holocaust, responsible for the death of over 6 million Jewish people because they were Jewish people. Even though I understand Mr. Soros’ position that, you know, probably everybody would 

have turned in fellow Jews, obviously, that’s not what happened. 

Some have a conscience, and some don’t. But I’m amazed to see 

Germany now bending so far backwards. We don’t even want to 

check to see if people coming in feel just like Hitler did, that Jews 

are vermin and need to be wiped off the Earth, because they are 

letting some people in that believe that. They are so afraid of being 

called Nazis that they are letting people in who were—their beliefs 

were allied with the Nazi beliefs during World War II and totally 

supportive of the Holocaust. 

So I’m also a bit perplexed. When I look at the oath of office I 

took as a prosecutor, as a member of the United States Army, as 

a judge, as a chief justice, as a Member of Congress—support and 

defend the Constitution of the United States against all enemies, 

foreign and domestic—and yet I heard the question from my friend 

across the aisle being put to the witnesses about would it be unconstitutional to deny Muslims to come into the country. Well, I would 

submit it depends on what the specific person’s beliefs were because thank God, most Muslims don’t believe that if they are going 

to be in America, they need to supplant, destroy the U.S. Constitution, erect a dictator, a caliph who will dictate how we can and will 

live, because that is an enemy to the Constitution, and we have an 

oath to protect that against all such enemies. But most Muslims, 

they are thrilled to come in to the United States, be able to worship 

as they wish. But there are Muslims—and I know the President of 

the United States, the last President said that ISIS is not Islamic. 

The trouble is he only had training in Islam in his youth in IndoSSpencer on DSK7TPTVN1PROD with HEARING

27 

nesia, as far as I know, unless Pastor Wright did. But you have 

Baghdadi, the head of the Islamic State, who has his Ph.D. in Islamic studies, and he says: ‘‘We are Islam. We are the true Islam. 

These other people who don’t want to destroy the United States 

and destroy the Constitution of the United States and wipe out all 

those who don’t believe as we do, they are not true Islam.’’ 

So, if those people want to come into the United States and destroy our way of life—and it doesn’t give me any comfort that, not 

only do they hate Jews, but as Khalid Sheikh Mohammed put in 

his pleading that’s been declassified, he believes that all Jews are 

vermin and should be killed, but also anyone who has ever said 

that God has a Son, which would mean all Christians. So he puts 

the Jews and the Christians together, and he claims to be the ultimate Muslim, and he believes he has the right and an obligation 

to wipe out Christianity and Judaism. 

And I would submit, Mr. Chairman, that if we’re going to keep 

our oath, we have an obligation to find out, not just if somebody 

says Christians, Jew, Buddhist, whatever Muslim, but what do you 

believe, and I believe that’s where we have fallen down, and that’s 

what President Trump was trying to avoid, people coming in so 

that we can vet them. Are you a Muslim who believes that you can 

follow the Constitution, or are you one that believes you need to 

destroy it? We need to find out how to vet them, keep out those 

who do want to destroy us, allow those in who won’t. 

I yield back, only because I’m out of time. 

Mr. KING. The chair thanks the gentleman from Texas, who 

yields back the balance of time. 

This concludes today’s hearing. Thanks to all our witnesses for 

attending. 

Without objection, all members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is now adjourned. Thank you. 

[Whereupon, at 2:28 p.m., the subcommittee was adjourned.] 

Æ 

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