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STATE OF RELIGIOUS LIBERTY IN 

THE UNITED STATES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 10, 2014 

Serial No. 113–75 

Printed for the use of the Committee on the Judiciary 

( 

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

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

JIM JORDAN, Ohio, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

JUNE 10, 2014 

Page 

OPENING STATEMENTS 

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

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

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

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

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 3 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 6 

WITNESSES 

Mathew Staver, Dean and Professor of Law, Liberty University School of 

Law, Founder and Chairman, Liberty Counsel, and Chairman, Liberty 

Counsel ACTION 

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

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

Kimberlee Wood Colby, Director, Center for Law and Religious Freedom, 

Christian Legal Society 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 51 

Rev. Barry W. Lynn, Executive Director, Americans United for Separation 

of Church and State 

Oral Testimony ..................................................................................................... 77 

Prepared Statement ............................................................................................. 79 

Gregory S. Baylor, Senior Counsel, Alliance Defending Freedom 

Oral Testimony ..................................................................................................... 98 

Prepared Statement ............................................................................................. 100 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 131 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 132 

Material from the Anti-Defamation League (ADL) submitted by the Honorable 

Steve Cohen, a Representative in Congress from the State of Tennessee, 

and Ranking Member, Subcommittee on the Constitution and Civil Justice . 134 

(1) 

STATE OF RELIGIOUS LIBERTY IN 

THE UNITED STATES 

TUESDAY, JUNE 10, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 3:10 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, Chabot, Forbes, 

King, Gohmert, DeSantis, Smith, Cohen, Conyers, Nadler, Scott, 

Johnson, and Deutch. 

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

Clerk; (Minority) James Park, Minority Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

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

Good afternoon, ladies and gentlemen, and thank you for all 

being here today. Today, the Subcommittee will examine the state 

of religious liberty in America. This continues a tradition of this 

Subcommittee holding a hearing on this topic each Congress. And 

I will now recognize myself for 5 minutes for an opening statement. 

Thomas Jefferson once said, ‘‘The constitutional freedom of religion is the most inalienable and sacred of all human rights.’’ Religious liberty is our first freedom. It is the cornerstone of all other 

human freedoms. The Bill of Rights passed by the first Congress 

included protections for religious freedom because without religious 

liberty and freedom of conscience all other liberties cease to exist. 

Indeed, religious liberty is the wellspring of our other liberties and 

the defining statement of freedom in America. 

This belief is something that has set America apart from all 

other nations since the Declaration of Independence declared nearly 240 years ago that we hold it a self-evident truth that all men 

are created equal. 

Ladies and gentlemen, the foundational and quintessential 

premise of America is that we are all created children of God equal 

in his sight and that we are endowed by our creator with the 

unalienable rights of life, liberty, and the pursuit of happiness. 
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America’s founding premise is itself an intrinsic expression of religious conviction. 

Consequently, the Obama administration’s flippant willingness to 

fundamentally abrogate America’s priceless religious freedom in 

the name of leftist social engineering is of grave concern to me and 

should be to all of us. 

The most egregious examples from the administration include 

their concerted effort to force religious minorities, like the Little 

Sisters of the Poor, to purchase abortifacient drugs and contraceptives. With breathtaking arrogance, this administration also told 

the Supreme Court 2 years ago in the Tabor case that government 

should have a say in deciding who could be a pastor, priest, or 

rabbi—in short, who could preach and teach religion. This was 

unanimously rejected by the Supreme Court as untenable and extreme. 

This administration seems to casually ignore the historical fact 

that religious liberty involves much more than freedom of worship 

alone and that fundamental rights of free speech and the free exercise of religion do not stop at the exit door of your local house of 

worship, but indeed extend to every other area of life. The so-called 

anti-discrimination policies that make no exception for religious beliefs threaten religious liberty. For most religious groups, public 

service is an essential element of their religious beliefs. Religious 

groups in America establish hospitals, operate homeless shelters, 

provide counseling services, and run agencies for adoption and foster care for children who might otherwise have no one else in the 

world to help them. 

Those who refuse to respect the public component of religious liberty and fail to accommodate religion in our generally applicable 

laws are putting many innocent people, as well as the religious 

freedom that undergirds America, in grave danger. Oftentimes religious freedom is suppressed in the name of ‘‘a strict wall of separation between church and state.’’ 

Now, while that phrase did appear prominently in the Soviet 

constitution, it appears nowhere in the United States Constitution, 

and the profound historical misrepresentation of that phrase by the 

secular left leaves me without adequate expression. 

Some time ago a Marxist economist from China was coming to 

the end of a Fulbright fellowship in Boston. When asked if he had 

learned anything that was surprising or unexpected, without hesitation he said, ‘‘Yeah. I had no idea how critical religion is to the 

functioning of democracy.’’ 

Ladies and gentlemen, it bears careful reflection that many men 

and women have died in darkness so that Americans could walk in 

the light of religious freedom. They gave all they had because they 

knew that religious freedom is critical to the survival of all other 

freedoms. It is so very important for us now and always to resist 

this ubiquitous effort by the secular left to do away with religious 

freedom in America as they have successfully done in so many 

other parts of the world. 

In America, every individual has the right to religious freedom 

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

constitutional rights of another. True tolerance does not mean that 

we have no differences. It means that we are obligated as members 
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of the human family to be kind and respectful to each other in spite 

of those differences, religious or otherwise. 

I would like to again thank our witnesses for being here, and I 

look forward to hearing from them about some of the unique challenges now facing this cornerstone of freedom in the United States. 

And I would now yield to the Ranking Member, Mr. Cohen, for an 

opening statement. 

Mr. COHEN. Thank you, Mr. Chair. 

Religious freedom is indeed a fundamental pillar of American 

life. Whatever one’s religious belief, our Constitution enshrines the 

notion that the government remain neutral with respect to religious belief, neither favoring one religion over others, nor favoring 

religious beliefs over nonbelief. 

Our constitutional statutes also require that the government not 

substantially burden the free exercise of religion absent a compelling interest and a less burdensome means of meeting that interest. 

In expounding upon the meaning of these constitutional provisions, 

Thomas Jefferson wrote in a letter to the Danbury Baptist Association in 1802, ‘‘I contemplate with sovereign reverence that act of 

the whole American people which declared that their legislature 

should, ’make no law respecting an establishment of religion or 

prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.’’ 

Jefferson was a deist who strongly believed in each man and 

woman, at least White men and women, or at least White men, 

having certain rights, and inscribed at the Jefferson monument is 

a saying of his that says, ‘‘I swear upon the altar of God eternal 

hostility over all forms of hostility over the mind of man.’’ Indeed 

men should be able to practice and women practice religion, but not 

have any thoughts superimposed upon them. 

You know, when our country started, it’s a great country, but we 

really didn’t get started on the idea that all men are created equal 

because we had slavery until President Lincoln in the Emancipation Proclamation and then the 13th Amendment said no more. 

Up to then, if you were black, you weren’t created equal, and if you 

were a woman, you really weren’t either because you didn’t have 

a right to vote really in this country till about the 1920’s. Took a 

long way for our country to evolve, and we are doing the same 

thing with religious freedom. All of these things in the Constitution, they’re wonderful, but they’re evolving, and we learn as things 

change. 

Some religions might say, or people say, because of their religion, 

they have to have peyote on a regular basis, and you have to figure 

how we should deal with that. And some religions might even think 

that being gay is something that they should be discriminatory 

against and that that’s an evil, but our society is evolving on people’s sexual orientations, too. 

Religious freedom is very fundamental and it’s protected in the 

First Amendment of the Bill of Rights, but Jefferson talked about 

constitutions not being sanctimonious documents, but like a child 

who grows and changes his clothes with times as it gets larger and 

grows and matures, that constitution should change as times 

change and people look upon it. So we can’t just say the Founding 

Fathers said this, and then there were 10 commandments, and 
4 

thou shalt honor thy God and mother and father and not commit 

adultery and not kill and all those things, just maybe a few others 

come along. 

It is also why I was the sponsor, all these things, I was the sponsor of Tennessee’s Religious Freedom Restoration Act back in January 1998, so this is nothing knew to me, when I was a senator. 

Like the Federal RFRA, the Tennessee RFRA protects religious liberty by ensuring that any government action that substantially 

burdens the free exercise of religion is prohibited unless there is a 

compelling state interest. 

Tennessee’s RFRA, like the Federal RFRA, seeks to strike a balance between the fundamental right to practice one’s religion free 

from government interference and the ability of the government to 

perform its basic duties, including the protection of public health 

and safety and fighting discrimination. So if a religious groups 

says, we can’t do certain things for our employees because of our 

religion, there has to be a compelling interest to show the difference. Or maybe something about gays. 

Any discussion of religious liberty must also include a discussion 

of the threats, both government and nongovernmental, to members 

of minority religions. As Reverend Barry Lynn, one of out witnesses, notes in his written testimony, a Muslim congregation in 

Murfreesboro, Tennessee, faced intimidation and threats of violence 

from the local community when it attempted to construct a new 

mosque. While the mosque ultimately was built, the legal fight over 

its construction ended only recently at a great cost to the congregation for a fight that it should never have had to fight. And we have 

things in New York like that, too, with a mosque and a community 

center not far from 9/11. 

Unfortunately, this is only one of many instances that reminds 

me the Bill of Rights’ fundamental purpose is to protect the minority, the unpopular, and the nonmainstream from majority tyranny. 

When one’s right to free exercise of religion ends and a majority 

tyranny begins will be the crux of our discussion today. 

Seven years ago this Committee heard from Monica Goodling, 

who at the time had just resigned as the Justice Department official, I think, dealing with personnel matters, concerning hiring 

there during the Bush administration. Ms. Goodling was a graduate of Regent University School of Law. According to its Web site, 

it seeks to provide legal training ‘‘with the added benefit of a Christian perspective through which to view the law,’’ something I don’t 

really know what that perspective might be. What’s different from 

a Christian perspective and a Judeo-Christian perspective or a conservative perspective or a liberal perspective or an American perspective? 

But there was evidence at the time Ms. Goodling and others 

screened job candidates for career positions at the Justice Department based on their religious and partisan affiliations. She denied 

it when asked, but it stands to reason religious belief could have 

played a definite role in her hiring policies. A religious litmus test 

for public office or for career public service positions has no place 

in a society that values religious liberty. 

More broadly, attempts to remake our Nation’s longstanding political and legal culture so as to give already dominant religious 
5 

groups more of a coercive power of government must be confronted, 

for if such attempts are successful the outcome would present a 

threat to a free society and ordered liberty and a government that 

can fundamentally provide a system, a network of systems that 

protects its citizens through health and welfare and other bases. 

I look forward to our discussion and appreciate the Constitution. 

Mr. FRANKS. And I thank the gentleman. 

And I would now yield to the Ranking Member of the Committee, 

Mr. Conyers from Michigan, for his opening statement. 

Mr. CONYERS. Thank you, Chairman Franks. 

Members of the Committee and our distinguished witnesses, religious freedom was one of the core principles upon which our Nation 

was founded. The First Amendment protects this fundamental freedom through two prohibitions: The Establishment Clause prohibits 

the Federal Government from issuing a law respecting the establishment of religion and the Free Exercise Clause prohibits the government from affecting the free exercise thereof. And so when discussing the government’s compliance with these prohibitions, we 

should keep in mind several considerations. 

To begin with, the real threat to religious liberty is continuing 

religious bias or intolerance against the members of minority religions. For example, the American Muslim communities across the 

United States since September 11, 2001, have been targets of often 

hostile communities and sometimes even government actions. 

There have been numerous well-founded complaints of religious 

profiling by Federal, State, and local law enforcement agencies. In 

fact, bills have been introduced in Congress as well as in various 

State legislatures targeting Islam. It was recently reported that the 

Transportation Security Agency is using a behavioral detection program that appears to focus on the race, ethnicity, and religion of 

passengers. 

As many of you know, I represent Detroit, the home of one of 

America’s largest Muslim communities, so I’m particularly disheartened by the overt challenges these communities face. Targeting American Muslims for scrutiny based on their religion violates the core principles of religious freedom and equal protection 

under the law. All Americans, regardless of their religious beliefs, 

should know that their government will lead the effort in fostering 

an open climate of understanding and cooperation. 

Yet, in the name of religious freedom, we cannot undermine the 

government’s fundamental role with respect to protecting public 

health and ensuring equal treatment under the law. Currently 

pending before the United States Supreme Court are two cases, the 

Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. 

Sebelius, that will hopefully clarify this issue. The issue in those 

cases is whether the government can require for-profit corporations 

that provide group health plans for their employees to provide female employees with plans that cover birth control and other contraceptive services as required by the Affordable Care Act, notwithstanding the religious objections of the corporation’s owners to contraceptives. 

Along with 90 of my colleagues in the House, I filed an amicus 

brief in these cases disputing the claim that corporate plaintiffs are 

persons for the purposes of the Free Exercise Clause. Corporations 
6 

are not people. And even if they are capable of having religious beliefs, these corporations aren’t entitled to relief under the Religious 

Freedom Restoration Act. Moreover, the Affordable Care Act’s mandate, we argue, serves two compelling governmental interests— 

namely, the protection of public health and welfare and the promotion of gender equality—that outweigh whatever attenuated 

burden the mandate might place on the corporation’s free exercise 

of rights. 

And finally, as even some of the majority witnesses acknowledge, 

the Obama administration’s enforcement efforts with regard to protecting religious freedom in the workplace and elsewhere are to be 

commended. On various fronts, the administration, to me, has 

striven to take a balanced approach to this issue. For example, it 

added a religious employer exemption to the HHS contraceptive 

mandate in response to objections from religious employers. These 

efforts ensure that America continues to foster a safe and welcoming environment for all religious practices and communities 

without sacrificing our other freedoms and needs. 

And I thank the Chair for allowing me to conclude this statement. I yield back. 

Mr. FRANKS. And I thank the gentleman. 

And I now yield to the Chairman of the Judiciary Committee, 

Mr. Goodlatte from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

The religion clauses of the First Amendment of the United States 

Constitution state, ‘‘Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof.’’ 

Since the birth of our Nation, the central question regarding the 

religious liberty has been the degree to which religion and government can coexist. 

Indeed, the Founding Fathers feared the effect of government on 

the free exercise of religion. In a letter dated June 12, 1812, to 

Benjamin Rush, John Adams stated that ‘‘nothing is more dreaded 

than the national government meddling with religion.’’ This dread 

has resurfaced amidst the current administration’s policies that ignore and are often hostile to the religious protections afforded by 

our Constitution. 

Many regulations fail to accommodate Americans’ religious beliefs. Others seek to single out religion for adverse treatment. From 

the HHS mandate to the infringement on the freedom of churches 

and other religious groups to choose their ministers, Americans’ religious liberties seem to be under constant attack today. 

In an effort to reaffirm the protections provided by the First 

Amendment, I supported the bipartisan effort to pass the Religious 

Freedom Restoration Act. The Federal Government must provide 

religious accommodation in our laws, and any laws passed that infringe upon religious freedom must be subject to the strictest scrutiny in our courts. My hope today is that this hearing will explore 

whether our Federal Government is complying with the constitutional and statutory protections afforded to all faiths. 

And while religious liberty remains threatened, I am nevertheless encouraged by recent Supreme Court decisions that safeguard 

it. Last month, for example, the Supreme Court upheld legislative 

prayer in the May 5, 2014 decision Town of Greece v. Galloway. 
7 

The court held that a municipality did not violate the establishment clause when it opened its meetings with prayer consistent 

with the traditions of the United States. I am glad that the longheld tradition of prayer remains ever strong in our State and local 

governments, as well as in Congress. 

In 2012, the Justices of the Supreme Court unanimously rejected 

the Federal Government’s argument in Hosanna-Tabor. Astonishingly, the administration’s lawyers argued in that case that the 

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

employment decision. The court described the administration lawyer’s position as extreme. I hope that the Supreme Court will continue to protect religious liberty in the future, including later this 

month when it issues its opinion in the HHS mandate case. 

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

and I extend a special welcome to a constituent of mine, Mat 

Staver, who is coming from Lynchburg, Virginia, today to testify. 

As a founding member and chairman of Liberty Counsel, Mat is a 

passionate defender of the Constitution and religious liberty. He is 

also working to educate future legal minds as dean of Liberty University’s law school. 

Welcome, Mat. I look forward to your testimony today and to 

that of all of our witnesses. 

And, Mr. Chairman, thank you, and I yield back my time. 

Mr. FRANKS. And I thank the gentleman. 

And without objections, other Members’ opening statements will 

be made part of the record. 

I will now introduce our witnesses. Our first witness is Mathew 

Staver, dean of Liberty University School of Law. In 1989, Dean 

Staver became the founder, president, and general counsel of Liberty Counsel and currently serves as chairman of the board. Dean 

Staver has authored more than 10 books, written several hundred 

articles on religious freedom and constitutional law, and has published 10 law review and journal articles. In addition to writing numerous appellate briefs, he has argued twice before the United 

States Supreme Court. 

And welcome, Mr. Staver. 

Our second witness is Kim Colby, senior counsel for the Christian Legal Society’s Center for Law and Religious Freedom, where 

she worked for over 30 years to protect students’ rights to meet for 

religious speech on college campuses. Ms. Colby has represented religious groups in several appellate cases, including two cases heard 

by the United States Supreme Court. She has filed numerous amicus briefs in State and Federal courts. 

And we welcome you, Ms. Colby. 

Our third witness is Reverend Barry Lynn, executive director of 

Americans United for Separation of Church and State. In addition 

to his work as an activist and lawyer in the civil liberties field, 

Reverend Lynn is an ordained minister in the United Church of 

Christ. He appears frequently on television and radio broadcasts to 

discuss religious liberty issues. He has had essays published in outlets such as USA Today and The Wall Street Journal. In 2006, he 
8 

authored the book ‘‘Piety & Politics: The Right-Wing Assault on Religious Freedom.’’ 

And we welcome you, sir. 

Our fourth witness is Greg Baylor, senior counsel with Alliance 

Defending Freedom. Mr. Baylor litigates cases to protect the rights 

of religious students, faculty, and staff at public colleges and universities across the Nation. Prior to joining Alliance Defending 

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

Society Center for Law and Religious Freedom, where he defended 

religious liberty since 1994. 

And we welcome you, sir. 

Now, each of the witnesses’ written statements will be entered 

into the record in its entirety, and I would ask that each witness 

summarize his or her testimony in 5 minutes or less. And to help 

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

The light will switch from green to yellow indicating that you have 

1 minute to conclude your testimony. When the light turns red, it 

indicates that the witness’ 5 minutes have expired. 

And before I recognize the witnesses, it is the tradition of the 

Subcommittee that they be sworn. So if you will please stand. 

[Witnesses sworn.] 

Mr. FRANKS. Please be seated. 

Let the record reflect that the witnesses answered in the affirmative. And I would now recognize our first witness, Mr. Staver. 

Please, sir, turn on your microphone before beginning. 

TESTIMONY OF MATHEW STAVER, DEAN AND PROFESSOR OF 

LAW, LIBERTY UNIVERSITY SCHOOL OF LAW, FOUNDER AND 

CHAIRMAN, LIBERTY COUNSEL, AND CHAIRMAN, LIBERTY 

COUNSEL ACTION 

Mr. STAVER. Thank you, Congressman Franks, Members of the 

Committee, and it’s a pleasure to be here with my own Member of 

Congress, Congressman Goodlatte. Thank you for inviting me and 

for this important topic that we’re going to be discussing. 

The threat to religious freedom has reached unprecedented levels. It has reached a point where religious freedom is now being coerced to go against the core values of those who hold these sincerely held religious beliefs. My testimony will focus on two primary issues where the threat has reached a critical point. These 

involve conflicts between religious freedom and, number one, the 

sanctity of human life and, number two, human sexuality and marriage. 

The Obamacare law that was passed in 2010 has a direct collision with religious freedom of unprecedented levels, both with regards to the rights of business owners in the HHS mandate that 

was promulgated under it and with regards to the individual mandate as well. Religious freedom with regards to licensed mental 

health counselors, minors, and their parents are also under unprecedented assault. In two states, California and New Jersey, laws 

have been passed that prohibit counselors from offering and minor 

clients and the parents from receiving any counsel whatsoever that 

would seek to reduce or eliminate same-sex sexual attractions, behavior, or identity. 
9 

The freedom of religious business owners with regards to their 

rights and operations are also under a threat with regards to the 

issues of marriage and human sexuality. First with regards to 

Obamacare. Liberty Counsel filed the first private lawsuit against 

Obamacare on behalf of Liberty University and some private individuals on the same day that it was signed into law by President 

Obama. In this particular lawsuit, we claim a violation of religious 

freedom under the First Amendment and the Religious Freedom 

Restoration Act. 

There are two different violation under that. First of all, there 

is the individual mandate that doesn’t get a lot of press, but under 

section 1303, individuals who are either in an exchange or in any 

insurance that offer any kind of elective abortion are forced to provide a separate payment in addition to their premium that goes 

into a segregated fund, the purpose of which is only to fund abortion. This breaks precedent with longstanding congressional Federal policy with regards to Federal funding or any other kind of 

funding of abortion. 

The other is with regards to the employer mandate. Under the 

minimum essential coverage, the HHS mandate decided that, as 

part of that, employers were to be providing not only contraception, 

but abortifacients and abortion-inducing drugs and devices. With 

regards to Liberty University, Hobby Lobby, Conestoga Woods, or 

Little Sisters of the Poor, whoever it might be, failure to abide by 

that violation of their belief that God is the creator and that life 

begins at conception and therefore they are forced to take innocent 

human life would result in a penalty of $2,500 per employee per 

year. But in addition to that, under the Department of Labor, those 

fines go up to $15,000 per employee per day. It is designed to literally crush an employer who disagrees with that abortion drug 

and device mandate. 

With regards to the other challenges involving human sexuality 

and marriage, in California, the first State to pass a law of unprecedented magnitude, even said so by the California counseling associations, is that no counselor or client may receive or offer any 

counsel whatsoever, under any circumstances, to reduce or eliminate unwanted same-sex attractions, behavior, or identity. That 

goes against the individual client’s right of self-autonomy. No other 

area of counseling has been affected by this. 

After California filed that particular bill and it was passed, New 

Jersey also passed a similar law. Both of those are currently in litigation. But this cuts to the very core of what a counselor is able 

to provide a client seeking information and what a client is able to 

receive. It’s unprecedented because there’s no other area of counseling that falls anywhere in that kind of restrictive mandate. 

In addition to the issues of the counseling associations and the 

individuals who are affected by it, there are also situations involving marriage and the human sexuality laws. In New Mexico we 

know of the case—obviously, that has been recently denied cert by 

the United States Supreme Court—involving the wedding photographer. That particular individual is not discriminating against 

anyone because of their sexual orientation. In fact, clearly said so. 

What she does say is that she does not want to participate in an 

event. She doesn’t discriminate against people because they’re cau-
10 

casian, but if they put on a robe and start involving a KKK rally, 

she doesn’t want to participate in photographing that event because it collides with her religious beliefs. But in this particular 

case, she is forced to either give up her wedding business or collide 

with her religious beliefs. That and many other instances can be 

listed ad nauseam with regards to the unprecedented clashes that 

we’re facing today with respect to religious freedom. 

Thank your for addressing this issue. Religious freedom is our 

first freedom. It’s a freedom, I think, that is critically under assault. 

[The prepared statement of Mr. Staver follows:] 
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Mr. FRANKS. Thank you, Mr. Staver. 

And I would now recognize our second witness, Ms. Colby. 

Please turn on your microphone. 

TESTIMONY OF KIMBERLEE WOOD COLBY, DIRECTOR, CENTER FOR LAW AND RELIGIOUS FREEDOM, CHRISTIAN LEGAL 

SOCIETY 

Ms. COLBY. Chairman Franks, Ranking Member Cohen, and 

Members of the Subcommittee, thank you for the opportunity to 

participate in this important hearing on the state of American religious liberty. 

The Christian Legal Society has long believed that a free society 

prospers only when the First Amendment rights of all Americans 

are protected regardless of the current popularity of their speech 

or religious beliefs. Therefore, CLS supported passage of the Religious Freedom Restoration Act to protect the religious liberty of all 

Americans. 

Congress’ passage of the Religious Freedom Restoration Act was 

a singular achievement. Senator Edward Kennedy and Senator 

Orrin Hatch led the bipartisan effort to pass RFRA in the Senate 

97-3. The House passed RFRA by unanimous voice vote, and President Clinton signed RFRA into law. For two decades, RFRA has 

stood as the preeminent Federal safeguard of all Americans’ religious liberty, ensuring a level playing field for Americans of all 

faiths. 

Yet, recently RFRA has been targeted by some who would deny 

robust protection to religious liberty. This hearing is timely because in a few weeks Congress may face calls to weaken RFRA 

after the Supreme Court decides the HHS mandate cases. But for 

several reasons such a threat to religious liberty—weakening 

RFRA—should be rejected. 

First, RFRA creates a level playing field for all Americans by 

putting minority faiths on an equal footing with any majority faith. 

Without RFRA, a minority faith would need to seek a statutory exemption every time Congress considered a law that might unintentionally infringe on religious practices. 

Second, RFRA gives citizens needed leverage in dealing with government officials. By requiring government officials to justify their 

unwillingness to accommodate citizens’ religious exercise, RFRA 

enhances government’s accountability. 

Third, RFRA ensures religious diversity in America and reduces 

conflict along religious lines. Such conflict is unnecessary when everyone’s religious liberty is guaranteed. 

Fourth, RFRA does not predetermine the outcome of any case. 

Instead, RFRA implements a sensible balancing test, a test approved unanimously by the Supreme Court 8 years ago, and the 

government continues to win its fair share of RFRA cases. 

Fifth, RFRA reinforces America’s commitment to limited government and pluralism. RFRA reminds us that America’s government 

is a limited government that defers to its citizens’ religious liberty. 

In RFRA, Congress recommitted the Nation to the foundational 

principle that American citizens have the God-given right to live 

peaceably and undisturbed according to their religious beliefs. 
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Now, let me turn briefly to a second threat to religious liberty, 

the ongoing effort to exclude religious voices from the public 

square. One example of this threat is the exclusion of religious student groups from college campuses because they require their leaders to share the groups’ religious beliefs. Obviously, it is basic religious liberty, not discrimination, for a religious group to require its 

leaders to share its religious beliefs. But at one university, administrators told a Christian student group that it could remain a recognized student organization only if it deleted five words from its 

constitution: personal commitment to Jesus Christ. The students 

left rather than recant. In total, 14 religious groups left that campus rather than forfeit their religious liberty. 

The freedom of religion must not become the freedom to recant. 

As Professor Douglas Laycock recently warned, and I’m quoting, 

‘‘For the first time in nearly 300 years important forces in American society are questioning the free exercise of religion in principle, suggesting that free exercise of religion may be a bad idea, 

or at least, a right to be minimized,’’ end quote. 

Religious liberty is America’s most distinctive contribution to humankind, but religious liberty is fragile, too easily taken for granted, and too often neglected. Religious liberty is a great gift, a gift 

we are in grave danger of squandering. Thank you. 

[The prepared statement of Ms. Colby follows:] 
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Mr. FRANKS. Thank you, Ms. Colby. 

And I now recognize Reverend Lynn. 

TESTIMONY OF REV. BARRY W. LYNN, EXECUTIVE DIRECTOR, 

AMERICANS UNITED FOR SEPARATION OF CHURCH AND 

STATE 

Rev. LYNN. Thank you very much. 

This panel certainly represents the two major world views about 

the state of religious freedom in America. Mine is this. Those in the 

majority faith, Christians like myself, are not the ones who suffer 

significant threats to their religious liberty. They have no serious 

impediments in believing, worshipping, obtaining taxpayer-supported grants, generally doing whatever they deem appropriate. 

This doesn’t mean that there are no occasional errors made by government officials that need correction, but a few anecdotes do not 

make a war on Christianity. 

There are, sadly, many efforts to regulate and relegate religious 

minorities and nontheists to a second-class status in parts of the 

country. They range from efforts to block construction of mosques 

to impeding high school students from forming nontheistic clubs 

where existing religious clubs are being permitted as required by 

Federal law. 

Ironically, the single greatest threat to religious freedom comes 

from a radical redefinition of the idea itself. Religious freedom does 

not mean what many of my copanelists assert, it does not mean 

that for-profit companies that sell wind chimes or wood cabinets 

can trump the moral and medical decisions of women employees 

who would choose contraceptive services that their corporate owners would deny them in insurance coverage. It does not mean that 

a university must provide funds to school clubs that will not admit 

gay and lesbian students. It does not mean that religious groups 

seeking government grants and contracts should be allowed to discriminate on the basis of religion in hiring people for those State 

or federally funded positions. 

There are legitimate instances when religious accommodations 

and exceptions need to be made; however, the government need not 

accede to every religious demand for an exception to a law that applies to everyone else. Such reaction would court anarchy. 

At first, the government’s entitled to ask how substantial a burden is being placed on the religious person. Regulations issued 

under the Affordable Care Act, for example, exempt many religiously affiliated institutions from covering employee or student 

contraceptive services in their insurance plans. If a college or a 

hospital objects, it signs a 635-word document so indicating and 

mails it to the government, making the government then responsible for locating third-party birth control coverage at no cost. 

I found it absurd when Notre Dame University now claims it has 

a religious right to refuse even to opt out by signing this form and 

dropping it in a mailbox. Such a trivial action cannot seriously be 

construed under law as any kind of burden on religious practice. 

Until Judge Richard Posner rejected its claim, however, the three 

women graduate students Americans United represents at Notre 

Dame could neither get coverage through their university nor from 
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a third-party insurer under the rules, and that is not a speculative 

or attenuated burden on them. 

Even if the burden on religion is not ephemeral, governments 

have a responsibility to assess the damage to third parties caused 

by any special exception. If a recently proposed Kansas statute had 

been enacted, one of its clear consequences would have been to 

allow hotel operators who object to marriage equality, even on idiosyncratic religious grounds, to refuse to rent to a gay couple, not 

only depriving those persons of the room they desire, but offering 

a direct and offensive insult to their very dignity as human beings. 

When a religiously affiliated entity cites Christian scripture to justify unequal payments to male and female employees there is a 

clear, easily measured downside for those women. 

Some accommodations, of course, do not impinge on the rights of 

others. Three of us here today have filed friend of the court briefs 

in a Supreme Court case where a Muslim prison inmate was unfairly told he could not grow a short beard consistent with his religious obligations. Facial hair on person A does not affect person B. 

Allowing a same-gender couple to marry cannot conceivably offend 

the religious liberty of a person across town who doesn’t even know 

that couple exists. 

I think the Framers of the Constitution would be appalled at the 

radical revisionism of the First Amendment being advocated by 

some. More importantly, I think the America of the future will look 

askance at efforts to elevate majority faiths or subject not so traditional believers to the status of an orphan class to be denied genuinely equal treatment in this diverse country. 

In that 5-4 decision in the Supreme Court’s recent Town of 

Greece case, which came dangerously close to embracing the concept of majority rule in legislative prayer practices, I noted on Fox 

News’ ‘‘The Kelly File’’ five members of the court seem to be running counter to the entire culture of the United States where we 

try to be more sensitive to the diversity of religion, the diversity 

of belief. 

Where real assaults and religious freedom occur, they should be 

condemned. Where a claimed defense is really a special privilege 

operating to the detriment of others, it should simply be rejected. 

Thank you, Mr. Chairman. 

[The prepared statement of Rev. Lynn follows:] 
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Mr. FRANKS. Thank you, sir. 

And I would now recognize our fourth and final witness, Mr. 

Baylor. 

TESTIMONY OF GREGORY S. BAYLOR, SENIOR COUNSEL, 

ALLIANCE DEFENDING FREEDOM 

Mr. BAYLOR. Thank you, Mr. Franks. 

My name is Gregory Baylor, and I serve as senior counsel with 

Alliance Defending Freedom, a non profit legal organization that 

advocates for religious liberty, the sanctity of life, and marriage 

and the family through strategy, training, funding, and litigation. 

I appreciate the opportunity to testify today regarding the state of 

religious liberty in the United States. 

Americans of all faiths have reason to be concerned about the 

current administration’s religious liberty record. All too often it has 

taken unnecessarily extreme positions designed to dramatically decrease religious freedom. I’ll mention three examples. First, the 

promulgation and legal defense of the HHS contraceptive mandate. 

Second, the unsuccessful attempt to eliminate the Religion Clauses 

ministerial exception. And third, the NLRB’s intrusion into the internal affairs of our Nation’s religious colleges and universities. 

Regarding the HHS mandate, the administration didn’t have to 

require employers to pay for contraception and abortifacients. 

Nothing in the Affordable Care Act required it to do so. But it went 

ahead anyway, despite well-known religious concerns that many 

Americans have about contraception and abortion. 

Second, the administration adopted a remarkably narrow religious exemption from the mandate. HHS could have exempted all 

conscientious objectors. It could have even exempted all religious 

employers. But again, HHS made a choice, a choice that damaged 

religious liberty. It adopted a religious exemption so narrow that 

even Jesus and Mother Teresa would not qualify. The exemption 

excluded and continues to exclude to this day the vast majority of 

religious educational institutions, social service agencies, and other 

nonchurch religious organizations, many of which have just as 

strong views on these issues as churches do. 

Third, they went ahead with its sham accommodation of nonexempt religious employers from the mandate, even though the 

vast majority of objecting organizations informed the administration during the comment period that the so-called accommodation 

did not satisfy their moral concerns. 

Now, the administration’s conduct in the defense of the civil 

rights lawsuits challenging the mandate has been no better. First, 

it has argued that businesses and their family owners cannot exercise religion in the marketplace. Second, it has shown a disturbing 

willingness to second guess and even discredit the religiously based 

moral assessments of individuals and organizations that cannot, in 

good conscience, comply with the mandate. Third, in an effort to 

distort and dilute the Religious Freedom Restoration Act, the administration has essentially argued that religious claimants may 

not prevail whenever the interests of third parties are somehow implicated. Fourth, the government has more recently remarkably argued that the imposition of massive financial penalties does not 
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count as a substantial burden under the Religious Freedom Restoration Act. 

The administration also took an extreme and potentially damaging position in the 2012 Hosanna-Tabor case, which has been 

mentioned previously. It argued that religious entities, churches, 

have no right under the Religion Clauses to choose their own ministers without governmental interference. Now, the lower Federal 

courts have for decades acknowledged that both the Free Exercise 

and Establishment Clauses of the First Amendment keep the government out of a church’s relationship with its ministers. The 

EEOC itself had accepted the existence of this ministerial exception 

in its compliance manual and in previous lawsuits. 

Now, to be sure, reasonable minds can disagree about who counts 

as a minister for purposes of the doctrine, and that’s what the Hosanna-Tabor case was about until the Obama administration filed 

its brief at the Supreme Court. Instead of continuing to argue more 

conventionally that the plaintiff in question was not a minister, it 

instead attacked the very existence of the ministerial exception. 

Demonstrating the extreme nature of this position, a unanimous 

Supreme Court reaffirmed the doctrine and protected the church 

from unwanted governmental intrusion. 

Finally, the National Labor Relations Board continues its quest 

to assert jurisdiction over religious institutions of higher education. 

It does so despite the clear teachings of the Supreme Court in the 

1979 case NLRB v. Catholic Bishop. It has arrogated to itself the 

power to examine and assess how religious a school is, denying constitutional protection to those schools that are not religious enough 

for its taste. The board has ignored multiple D.C. Circuit opinions 

instructing it to respect religious liberty in administering the National Labor Relations Act. 

In conclusion, all Americans who love our first freedom ought to 

be alarmed at the administration’s willingness to undermine that 

fundamental right. 

Thank you again for the opportunity to testify, and I look forward to addressing any questions that Committee Members might 

have. 

[The prepared statement of Mr. Baylor follows:] 
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Mr. FRANKS. I would like to thank all of the witnesses for their 

testimony. And we will now proceed under the 5-minute rule with 

questions. I will begin by recognizing myself for 5 minutes. 

And, Dean Staver, I’ll begin with you, sir. Regarding the HHS 

mandate under Obamacare, the main focus here has been on the 

employer mandate, but you also referenced a similar threat to religious freedom under the individual mandate, and I wonder if you 

could further address that and clarify that for us. 

Mr. STAVER. Yes, Mr. Chairman. It doesn’t get a lot of attention 

in the media. The employer mandate is the primary one that’s 

being discussed. But section 1303 actually sets up the individual 

mandate with regards to abortion and the abortion funding. It has 

become known as the so-called Nelson compromise because it arose 

out of Senator Ben Nelson’s attempt to find language that would 

make it clear that there would be no government Federal funding 

with regards to abortion. 

Section 1303 specifically says that in plans where elective abortion are offered anywhere within that network, whether it’s in your 

own or if you’re finding it in an exchange, you have to pay a separate fee, in addition to your premium. That fee is paid monthly, 

and it goes into a segregated fund, and that fund is used only for 

one purpose, and that’s to fund elective abortions for anyone within 

that coverage. No matter your age, your sex, or your religious objection to the contrary, you still have to pay for that particular coverage. 

And the even more egregious thing with it is you can’t find out 

if your plan covers abortion because of the so-called secrecy clause 

that was put into the Obamacare law so that you wouldn’t be able 

to find out whether your plan covered abortion. Any other area 

where you want to find insurance, whether it’s car insurance or 

health insurance, before you decide to take a particular plan and 

pay the premium, you have the right to be able to get a list of what 

that plan covers. 

But here you’re not allowed to do so. In fact, under the 

Obamacare law, insurance companies are prohibited from providing 

any information with regards to that coverage, and therefore it is 

essentially Russian roulette. You don’t know until you actually pay 

the premium. Once you pay the premium, you’re locked in for a 

year. After you pay the premium, you get to know what’s in that 

plan, and if that plan covers abortion, you’re forced, in addition to 

your premiums, to pay an additional monthly fee, and that fee goes 

directly to fund abortion. 

That was Senator Nelson’s way to get around having Federal 

funds do that, but now the Federal law provides and coerces individuals to do that very thing. So that breaks with consistent Federal policy under the Hyde Amendment and others about not having coerced Federal funds from taxpayers to pay for abortion. 

This is a direct assault. Regardless of what the Supreme Court 

does this month with regards to the Hobby Lobby case and the 

Conestoga Wood case relating to the employer mandate, this is still 

in existence and it still affects every single person around the country. So this is a direct assault. It needs to be addressed by Congress. Something needs to be done to exempt those with sincerely 

held religious beliefs from that provision because never before have 
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we been able to trace a dollar from your purse or pocketbook directly from you to one source to fund abortion. It’s not a general 

funding of medical procedures, one of which might be a knee replacement and another might be abortion. This fund goes directly 

from the person and it has its only objective to fund the taking of 

innocent human life. 

Mr. FRANKS. Thank you, sir. 

Ms. Colby, I know that much has already been mentioned today 

about the Tabor case, but I wonder, if you would, just for those of 

us that are not as erudite as you are, could you break that down 

for us a little bit. Tell us what the administration, the Obama administration actually argued, and how, if they had been successful, 

that would have affected churches and other religious institutions. 

Ms. COLBY. Certainly. I think, as Greg already mentioned, the 

Obama administration took an extreme position in the Supreme 

Court that was unnecessary. I was actually part of a group of about 

15 people from the religious liberty community, from Jewish 

groups, Catholic groups, Christian groups, Protestant groups, who 

met with the Solicitor General’s office beforehand to try to say we 

understand you have to defend the EEOC, but please do it with the 

least amount of damage possible to religious liberty. 

And so we were shocked, we were stunned, all of us, when we 

saw what the administration ended up filing. It was a brief that 

said that the Free Exercise Clause and the Establishment Clauses 

have nothing to do with the church’s right to decide who its minister should be, that there was no protection under either of those 

clauses for a church or any other religious congregation to decide 

who its leaders would be. 

Mr. FRANKS. So a Jewish synagogue would not have the right to 

hire a Jewish rabbi. 

Ms. COLBY. No. Well, they could hire him—— 

Mr. FRANKS. Couldn’t discriminate against Baptists or others. 

Ms. COLBY [continuing]. But if there were a lawsuit, the government could interfere, right. 

Mr. FRANKS. I understand. All right. Well, I wish I had more 

time, but I don’t, so I will now yield to the Ranking Member for 

5 minutes for questions. 

Mr. COHEN. Thank you, Mr. Chair. 

Ms. Colby, I would like to ask you a question. I saw in your biography that you were particularly interested in slavery history 

there. When you studied slavery, did you see a whole bunch of people that supported slavery on the theory that it was a Christian 

thing to do, that a lot of people back at that time used the Bible, 

unfortunately, as a basis to defend slavery? 

Ms. COLBY. Actually, I’ve heard that argument made a lot, and 

it’s something that I am trying to look into on my own. But I’ve 

been interested in reading—I believe her name is Annette GordonReed, She’s a professor at Harvard Law School, and she wrote 

about the Sally Hemmings-Jefferson relationship. And just in passing, I think it’s called ‘‘The Hemmings of Monticello.’’ She just in 

passing says around page 98 or something, that one would not 

have expected Jefferson to have emancipated his slaves because he 

was not a Trinitarian Christian, he was not a believing Christian, 

he was a deist. And she just says in passing that the only owners 
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that were doing that were essentially evangelical Christians. Now, 

I certainly am not saying that all evangelical Christians—— 

Mr. COHEN. You’re not saying Robert E. Lee wasn’t a Christian, 

are you? You’re not suggesting that Stonewall Jackson wasn’t a 

Christian, are you? 

Ms. COLBY. I am not suggesting that, but what I am suggesting—— 

Mr. COHEN. They were fine Christian men, and they had their 

slaves. 

Ms. COLBY. What I am suggesting is that the whole abolition 

movement originated in first the Quakers and then the evangelical 

Christians. 

Mr. COHEN. But there were lots of people who defended slavery 

on the basis that that was—just like they defended the miscegenation laws. Do you believe that people of different—African Americans and caucasians should be able to intermarry? 

Ms. COLBY. Of course. 

Mr. COHEN. Okay, good. 

Dean Staver, how about you, do you believe in that? 

Mr. STAVER. Yes. 

Mr. COHEN. You do. So all those ministers that said that that 

was against Christianity and for years that was the basis of the defense before Loving v. Virginia, they used the Bible, unfortunately, 

and besmirched it. 

Mr. STAVER. Well, some may try to use the Bible for that, but 

if you look at the abolition movement, it was really a movement 

that rose out of Christian beliefs and Judeo-Christian values, not 

only here in the United States, but also William Wilberforce. It was 

something that was grounded in Judeo-Christian values 

Mr. COHEN. Let me ask you this. There are certain anti-gay laws 

that they have in Russia. You, I believe, have advocated for something similar to that, have you not? Do you support the Russian 

anti-gay laws? 

Mr. STAVER. The Russian anti-gay laws? 

Mr. COHEN. The laws in Russia that make it illegal to be gay and 

to have certain activities restricted for people who are gay. 

Mr. STAVER. What I am concerned about is having people of 

Christian, Judeo-Christian beliefs be forced to participate in a ceremony or an event that celebrates something that is contrary to 

their religious belief. 

Mr. COHEN. Okay. So you are not in favor of the anti-gay Russian laws. What I read was wrong. 

Mr. STAVER. I don’t know what you read. 

Mr. COHEN. Fine. 

Mr. STAVER. I haven’t spoken on the Russian law anywhere. 

Mr. COHEN. Okay. Thank you. I am happy to see that. 

You wrote a book called ‘‘Take America Back,’’ or an article. 

Mr. STAVER. Yes. 

Mr. COHEN. Is it a book or an article? 

Mr. STAVER. It’s a book. 

Mr. COHEN. What are we taking America back from? And who 

is we? 

Mr. STAVER. The point of it was to go back to a constitutional 

roots of the Constitution and the rights that are guaranteed in our 
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Constitution, that the Founders guaranteed the right to freedom of 

speech, freedom of free exercise of religion, those kinds of rights 

that are declared not only in the Constitution, but that are set 

forth in the Declaration of Independence, that we have certainly 

unalienable rights that come from our creator, among which are 

life, liberty, and the pursuit of happiness. 

Mr. COHEN. Right. And do you believe that the Interstate Commerce Clause was sufficient to allow for the Civil Rights Act to be 

constitutional? 

Mr. STAVER. I have never argued to the contrary, so I don’t know 

if you’ve read anything to that effect. I’ve never argued anything 

to the contrary. 

Mr. COHEN. So you support the constitutionality of the Civil 

Rights Act? 

Mr. STAVER. I am certainly an advocate of civil rights. 

Mr. COHEN. Do you support the constitutionality of the united 

Civil Rights Act of 1964? 

Mr. STAVER. Yes. 

Mr. COHEN. Good. Good, good, good, good. 

You referred to Obamacare. Just for the record, it’s the Affordable Care Act and Patient Protection Act. That’s the real name of 

it. We’re talking about contraception. The Founding Fathers, what 

was contraception when the Founding Fathers were around? Do 

you think they envisioned pills and surgical procedures, or would 

they have some other form of contraception? 

Mr. STAVER. I don’t think they envisioned the kind of contraception or abortifacients we have today. However, abortion was something that was known, and it’s even in the Hippocratic Oath, long 

through the centuries that that was an issue. 

Mr. COHEN. But birth control like we have today wasn’t known 

then, right? 

Mr. STAVER. No 

Mr. COHEN. So we have to kind of flow with the times and learn? 

Mr. STAVER. Well, we have to also understand that there are certain fundamental values. Life is a critical value. Without the right 

to life, you have no other rights. Rights to freedom of speech or 

freedom of religion is meaningless to a corpse. 

Mr. COHEN. Do you believe any abortion, even in the first couple 

or 3 weeks of conception, is constitutional or legal? 

Mr. STAVER. I believe that life comes from our creator, and that 

life biologically begins at the moment of conception, and the taking 

of innocent human life is tantamount to murder. 

Mr. FRANKS. The gentleman’s time has expired 

Mr. COHEN. Thank you, sir. I yield back the balance of the time 

that I don’t have. 

Mr. FRANKS. And I would now recognize the gentleman from 

Texas, Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I know there was a lot said in the opening statements each 

made. For example, my friend from Tennessee was quoting from 

Thomas Jefferson. I think it is good to also—and, actually, I know, 

Reverend Lynn, you had said, ‘‘I think the Founders would be appalled,’’ were your words. I think, personally, for me, the Founders 
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would be appalled at the things that have appalled you, rather 

amazingly. 

The quote about Jefferson, from Jefferson, he also in the Jefferson Memorial, he said, ‘‘God, who gave us life, gave us liberty. Can 

the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed, I tremble for 

my country when I reflect that God is just, that His justice cannot 

sleep forever.’’ 

And I know, it was even mentioned, that—of Jefferson being a 

deist. You know, we know that he cut out miracles from his version 

of the Bible, but my understanding of a deist is that a deist does 

not believe that whatever God or deity, whatever it was that created things ever interferes with the natural course of things. And 

yet here you have Jefferson being very concerned that God’s justice 

would not sleep forever. 

I also note, this was a gift from my aunt from my uncle’s—what 

my uncle was given going into World War II. And here it says ‘‘the 

White House,’’ ‘‘Washington,’’ ‘‘As Commander in Chief, I take 

pleasure in commending the reading of the Bible to all who serve 

in the Armed Forces of the United States. Throughout the centuries, men of many faiths and diverse origins have found in the 

Sacred Book words of wisdom, counsel, and inspiration. It is a 

fountain of strength and now, as always, an aid in attaining the 

highest aspirations of the human soul.’’ Signed, ‘‘Franklin D. Roosevelt.’’ 

Reverend Lynn, are you offended by that, that the President, 

with the stamp of the White House, would allow that to be in Bibles that were given out to soldiers? 

Rev. LYNN. I am not offended by that, but one of the reasons I 

am not offended by it is because I suspect I shared a lot of the particular religious beliefs of Franklin Roosevelt. 

A few years ago, I was honored to receive from the Franklin and 

Eleanor Roosevelt Institute a medal of freedom—a medal of freedom for the freedom to worship. And I think that—— 

Mr. GOHMERT. That wasn’t awarded by Roosevelt himself. 

Rev. LYNN. No, it was not. By the—— 

Mr. GOHMERT. Yeah. And you are familiar with the prayer that 

he prayed on D Day—— 

Rev. LYNN. I am very familiar with the prayer. 

Mr. GOHMERT [continuing]. Right? You are familiar with that 

prayer he prayed on D Day, correct? 

Rev. LYNN. I am familiar with the prayer—— 

Mr. GOHMERT. Where he asked that God help against these unholy forces. 

But you mention, you know, at numerous times you are a Christian. And, of course, that, like the term ‘‘deist,’’ can have different 

meanings to different people. And I think about the episode of 

‘‘Seinfeld’’ where Elaine finds out her boyfriend is a Christian and 

he has never mentioned it to her and she is offended. ‘‘So you are 

a Christian?’’, she asks basically. ‘‘Don’t you believe if you are not 

a Christian you go to hell?’’ ‘‘Well, yeah.’’ ‘‘Then why haven’t you 

said anything to me if you care about me?’’ 
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I am curious, in your Christian beliefs, do you believe in sharing 

the good news that will keep people from going to hell, consistent 

with the Christian beliefs? 

Rev. LYNN. Yeah, I wouldn’t agree with your construction of what 

hell is like or why one gets there. But the broader question is, yes, 

I am happy to. When I speak to—— 

Mr. GOHMERT. Okay. So you don’t believe somebody would go to 

hell if they do not believe Jesus is the way, the truth, the life? 

Rev. LYNN. I personally do not believe people go to hell because 

they don’t believe in a specific set of ideas in Christianity. I have 

never—— 

Mr. GOHMERT. No, no, no, not a set of ideas. Either you believe 

as a Christian that Jesus is the way, the truth, the life, or you 

don’t. And there is nothing wrong in our country with that. There 

is no crime, there is no shame. It should never be a law against 

those beliefs, because God gave us the chance to elect to either believe or disbelieve. And that is what we want to maintain, is people’s chance to elect yes or no, the chance that we were given. 

So do you believe—— 

Rev. LYNN. Congressman, what I believe is not necessarily what 

I think ought to justify the creation of public policy for everybody, 

for the 2,000 different religions that exist in this country, the 25 

million nonbelievers. 

I have never been offended; I have never been afraid to share my 

belief. When I spoke recently at an American Atheists conference, 

it was clear from the very beginning in the first sentence that I 

was a Christian minister. I was there to talk to them about the 

preservation of the Constitution. And, in fact, I said, you know, we 

can debate the issue of the existence of God for another 2,000 

years; I want to preserve the Constitution and its effect on all people, believers and not-believers, in the next 5 years. That is what 

I talk about—— 

Mr. GOHMERT. So the Christian belief, as you see it, is whatever 

you choose to think about Christ, whether or not you believe those 

words he said, that nobody, basically, goes to heaven except 

through me. 

Rev. LYNN. We could have a very interesting discussion sometime, probably not in a congressional hearing, about—— 

Mr. GOHMERT. Well, I was just trying to figure out, when you 

said ‘‘Christian’’—— 

Rev. LYNN [continuing]. Scriptural passages. 

Mr. GOHMERT. There is no judgmental—that is not my job. God 

judges people’s heart, in my opinion. But just to try to figure out 

what we meant by ‘‘Christian.’’ So I appreciate your indulgence. 

Thank you. 

Mr. FRANKS. I thank the gentleman. 

And I now recognize Mr. Nadler for 5 minutes. 

Mr. NADLER. Thank you very much. 

Mr. Staver, you said it is an imposition—let me start out by saying I was one of the sponsors of the Religious Freedom Restoration 

Act. And, along with Charles Canady, a former Republican Member 

from Florida, I was the author of the Religious Land Use and Institutionalized Persons Act. But we always conceived of these as 
118 

shields of religious freedom, not as swords with which to impose religious beliefs on other people. 

Let me ask you a few questions. You said it is wrong, an imposition on religious belief for government to insist that the wedding 

photographer not be able to say I won’t go to the gay marriage; is 

that correct? 

Mr. STAVER. Correct. 

Mr. NADLER. Would it be an equal limitation of his religious belief if he said I don’t want to go to a wedding of black people, I 

want to discriminate against black people? Would the government 

saying you can’t do that be a violation of his religious freedom? 

Mr. STAVER. I think that is fundamentally different. 

Mr. NADLER. Why? 

Mr. STAVER. She is not saying she doesn’t want to photograph a 

wedding where there is people who are gay and lesbian. She is saying she doesn’t want to photograph a celebration of same-sex 

unions. 

Mr. NADLER. And if her religious beliefs said I don’t want to celebrate a celebration of black unions because I think black people 

shouldn’t get married, that is my religion, I mean, is it an imposition on her religious freedom for government to say you can’t do 

that? 

Mr. STAVER. I think it is fundamentally different, and I don’t 

think that is what the issue is in that case. And I don’t—— 

Mr. NADLER. That is exactly what the issue is. 

Mr. STAVER. No, they—— 

Mr. NADLER. She has a religious belief that she shouldn’t participate or be forced to participate in a celebration which goes against 

her religious belief. And let’s assume her religious belief is that she 

shouldn’t photograph a Jewish wedding. Would that be discrimination that the civil rights law can proscribe or not? And if not, why 

not? 

Mr. STAVER. I think it would be something that she wouldn’t object to, first of all; secondly—— 

Mr. NADLER. Somebody with some religious belief might object. 

I am not saying your client or your friend or whoever she is. Let’s 

assume that someone had such a religious belief, that it is a violation of her religious belief to be forced professionally, because she 

is a photographer, to photograph a Jewish wedding or a Muslim 

wedding or whatever, and the government says, that is discrimination, you can’t do that. Is the government being improper by limiting her religious freedom in that case? 

Mr. STAVER. Well, first of all, there is a legal question of whether 

it is a public accommodation, but assuming that it is—— 

Mr. NADLER. Assuming that it is. 

Mr. STAVER.—I think that she would have an issue there, a violation potentially. But I think what—— 

Mr. NADLER. She would have a violation. Okay. 

Mr. STAVER. But that issue is fundamentally different. She specifically stated in that case that she doesn’t discriminate 

against—— 

Mr. NADLER. Excuse me, it is my time. I don’t see any difference 

at all. You can try to see it. 
119 

Now, if the owner of a public accommodation, a restaurant, said, 

I don’t want—well, I am holding out myself in commerce—my religious belief is I don’t want black people or Jewish people or whoever, or gay people, in my restaurant, and certainly not a gay couple holding hands, and the Federal Government says that is discrimination, is that a violation of the freedom of religion? 

Mr. STAVER. No. And I don’t think that is what the issues are 

that we are—— 

Mr. NADLER. I don’t see how it is distinguishable. 

Let me ask you a different question. The Affordable Care Act 

says you have to have certain basic services covered by the insurance policy. You object because it violates the religious beliefs of 

some people to have contraception covered. 

Let’s assume that it covered blood transfusions. Some religious 

groups are opposed to blood transfusions. What is the difference? 

Mr. STAVER. Well, I think if it was someone like a Jehovah’s Witness or some other kind of religion, then that is a fundamentally 

different situation. 

Mr. NADLER. Why? 

Mr. STAVER. Because that does conflict with their sincerely 

held—— 

Mr. NADLER. Oh, so you are saying it would be the same situation. In other words, we shouldn’t be allowed to say that insurance 

companies have to cover blood transfusions because there are people, Jehovah’s Witnesses or whoever, who—— 

Mr. STAVER. No, no. I am referring to an individual who is being 

forced to have a blood transfusion. 

Mr. NADLER. No, no, no, we are not talking about being forced 

to have a blood transfusion, because we are not talking about 

someone being forced to have an abortion. 

The objection is to mandating that the insurance policy cover 

abortions for those who want them. The objection here would be requiring the insurance policy to cover blood transfusions for those 

who want them and who need them. 

What is the difference? 

Mr. STAVER. I think there is a significant difference. 

Mr. NADLER. To wit? 

Mr. STAVER. Because one is the taking of innocent human life. 

Mr. NADLER. Excuse me. That is a value judgment. And you 

may—— 

Mr. STAVER. That is not a value judgment. That is a—that is so 

fundamental—— 

Mr. NADLER. Wait a minute. That is a religious conviction. 

Mr. STAVER. That is so fundamental to your Christian belief that 

you cannot violate that. 

Mr. NADLER. Fine. To some Christian beliefs and not to others 

and not to some other beliefs. And I am not going debate that, nor 

am I debating the validity of someone objecting on a religious basis 

to blood transfusions or to a lot of other things. There are equally 

valid beliefs, from a government point of view. Any religious belief 

is equally valid from a government point of view, can’t distinguish. 

Mr. STAVER. But the taking—— 

Mr. NADLER. So my question is—— 

Mr. STAVER [continuing]. Of innocent human life—— 
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Mr. NADLER. The taking of innocent human life—— 

Mr. STAVER [continuing]. Is fundamentally different. The destruction of another human being is fundamentally different. 

Mr. NADLER. All right. Let’s assume we aren’t talking about 

abortifacients, we are only talking about—or what are characterized abortifacients—contraception. That aside, is not the taking of 

innocent human life. 

Mr. STAVER. Well, the FDA classifies Ella and Plan B as 

abortifacients. 

Mr. NADLER. Put that aside. Let’s assume that you weren’t talking about—— 

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

Mr. NADLER. We are talking only about contraception. Would 

that be different from the blood transfusion case? 

Mr. STAVER. I am sorry, I didn’t—— 

Mr. NADLER. Would that be—if the requirement says the insurance company must cover contraception, not including what you 

would consider abortions, would that be different and of greater or 

lesser validity as an invasion of religious liberty than the requirement that the insurance policy cover blood transfusions, which 

other people object to on religious grounds also? 

Mr. STAVER. It could be similar, but I think it is also fundamentally different, particularly for those of Roman—— 

Mr. NADLER. It does. 

Mr. STAVER.—Catholic beliefs, because it deals with the creation 

or the destruction of innocent human life. 

Mr. NADLER. We are not talking about abortions. We are the 

talking—— 

Mr. STAVER. I know—— 

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

Mr. STAVER. But we are talking about contraception, not the 

abortifacients. That is what we are talking about. 

Mr. NADLER. Right. Yes. 

Mr. STAVER. For those of Roman Catholic belief, that deals with 

the very beginning of human life. The—— 

Mr. NADLER. And for those of other beliefs, transfusions are 

equally objectionable. What is the difference? 

Mr. STAVER. I think it is fundamentally different when you are 

talking about the creation or destruction of innocent human life. 

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

And we now recognize Mr. King for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

And I thank the witnesses for your testimony. 

Sometimes I have a little trouble attaching all the dialogue if I 

can’t take it back and anchor it to something that is the basis for 

our discussion here, and I think that would be the First Amendment. And I don’t believe I heard anybody actually address the text 

of the First Amendment. 

So I would turn to Dean Staver and ask—I want to go to this 

wall-of-separation discussion. So could you explain that to me, how 

we got to that? 

Mr. STAVER. The wall of separation? 

Mr. KING. Yes. 
121 

Mr. STAVER. Well, the First Amendment clearly says that Congress shall make no law respecting the establishment of religion or 

prohibiting the free exercise thereof. So it is a protection of a barrier against government intrusion on religious freedom. That is 

what the essence of the First Amendment is. 

Thomas Jefferson’s letter to the Danbury Baptists was a letter 

of congratulations by the Danbury Baptists, and he used the opportunity, as he often did, to write a letter to give certain kinds of 

statements. And in that statement, he was justifying, especially in 

the earlier drafts that are clearly available now for review and research, why he didn’t, like his previous predecessors, Washington 

and Adams, engage in national days of prayer. And he indicated 

that the Federal Government was not allowed to establish a religion and, therefore, not allowed to require a national prayer, and 

so, therefore, as the Executive, he was not allowed to carry out 

what the Federal Government was not allowed to do. 

He never used the word ‘‘separation of church and state’’ before 

that letter. And if it was so important to him, he never used it 

again after the letter. He never used it at all. 

And, in fact, in another letter, he refers to the First Amendment 

with regards to religion and the 10th Amendment as saying essentially the same thing: The Federal Government should have the 

hands off of religion because that is a matter reserved for the 

States. 

Mr. KING. But if Thomas Jefferson for a moment, maybe in a fit 

of anger or frustration, for a moment wrote a letter to the Danbury 

Baptists and for that moment he had changed his mind on his 

longstanding support for the First Amendment and then never revisited it again, is there any legal basis whatsoever for an opinion 

that came out so many years later? 

Mr. STAVER. No. In fact, the Supreme Court that first really relied upon that said that Thomas Jefferson, as we know, basically 

was influential in the drafting and adoption of the First Amendment. And, of course, Justice Rehnquist was the first Justice who 

later, in a dissent or a concurring opinion later, literally demolished that. No historian now will support what that opinion says, 

because Thomas Jefferson had nothing whatsoever to do with drafting the First Amendment. 

Mr. KING. So from a First Amendment standpoint, we are back 

to ‘‘Congress shall make no law.’’ 

Mr. STAVER. Yes. 

Mr. KING. And that stands today, and it has not been redefined 

by any succeeding precedent case—— 

Mr. STAVER. Correct. 

Mr. KING [continuing]. In your judgment. 

Would you agree, Mr. Baylor? 

Mr. BAYLOR. Well, your question is about whether the Establishment Clause applies to local and State government, as well, beyond 

Congress. Is that—am I understanding correctly? 

Mr. KING. Well, I didn’t ask you the question, but it is one we 

should get answered here, so I would ask your opinion on that. 

Mr. BAYLOR. Yeah. You know, that is not a question that is presently being debated very much among the courts. I think it is well- 
122 

accepted that it ought to be applied and it ought to be applicable 

to the State and local governments, as well. 

But the question is, what does the thing mean? And when the 

phrase ‘‘separation of church and state’’ was initially used by the 

Supreme Court, it was to protect the church from the state, not to 

be a device under which the government discriminates against religion. 

And from 1947 forward, when the Supreme Court invoked that 

phrase and misinterpreted and misapplied it, all too many organizations and Justices were using this phrase as meaning, ‘‘We must 

exclude Christian speakers or religious speakers from public settings; we must deny them equal access to funding.’’ So the key 

issue is the meaning of the Establishment Clause. 

Mr. KING. Is there any scholarship that there was ever an effort 

to actually insert those words into the Constitution, by amendment 

or in the original draft? 

Mr. BAYLOR. Well, the Blaine amendment that was proposed 

after the Civil War was designed to deny equal educational funding 

to religious schools, and that effort failed. And I think it is quite 

ironic that the Establishment Clause was subsequently interpreted 

by the court to hold precisely that. Now, thankfully—— 

Mr. KING. Was there ever an effort—— 

Mr. BAYLOR [continuing]. The court changed its mind about that. 

Mr. KING. Was there ever an effort to amend the Constitution, 

ever a proposal or an actual constitutional amendment that would 

have inserted language, ‘‘a wall of separation,’’ or similar language 

that you know of? 

Mr. BAYLOR. Not to my knowledge, no, sir. 

Mr. KING. Reverend Lynn, are you aware of any? 

Rev. LYNN. No. I think it is right, because I think that it was 

commonly understood after the passage of the 14th Amendment 

that one of the purposes of the 14th Amendment, as articulated by 

the Republican sponsors of the 14th Amendment, was to apply the 

Bill of Rights to the States and, therefore, to guarantee this same 

what Jefferson called a ‘‘wall of separation’’ to State activity. 

Mr. KING. Do you know anything about a report that I have that 

the Ku Klux Klan had actually made an effort to introduce that 

language in as an amendment to the Constitution, ‘‘separation of 

church and state,’’ and that it originated as an anti-Catholic bias 

from the Klan? 

Rev. LYNN. There was certainly anti-Catholic bias on the part of 

the Ku Klux Klan. They hated pretty much everyone who was not 

themselves. 

Mr. KING. Does anyone on the panel—— 

Rev. LYNN. But this is not—— 

Mr. KING [continuing]. Have any knowledge of that? 

Rev. LYNN. What? 

Mr. KING. Does anyone on the panel have any knowledge of what 

I just brought up? 

Rev. LYNN. No. 

Mr. KING. Hearing none—Dean Staver, I see you leaning forward. 

Mr. STAVER. Well, I think, as Mr. Baylor said, that there was an 

effort with the Blaine amendment to specifically discriminate 
123 

against, particularly, Catholic Church and Catholic schools. There 

were two attempts to amend the First Amendment to replace the 

words ‘‘Congress shall make no law respecting’’ to ‘‘no State shall 

make no law.’’ Both of those failed. 

Mr. KING. I understand. And I appreciate all the witnesses’ testimony. 

And I yield back the balance of my time. 

Mr. FRANKS. And I thank the gentleman. 

And I now recognize the gentleman from Virginia, Mr. Scott, for 

5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Reverend Lynn, the school-prayer issue has been bandied back 

and forth. Can you tell me the implications of the Establishment 

Clause and the Free Exercise Clause in that issue? 

Rev. LYNN. I think it is a perfect example of where those two 

clauses have an independent and important meeting. 

The nonestablishment principle means, as the Supreme Court 

rightly said in the early 1960’s, local governments cannot write a 

prayer, the so-called regent’s prayer. No bureaucrat should write a 

prayer that every student should articulate. And then, just a year 

later, in another Supreme Court decision, the majority of the Court 

said it is also true that local governments cannot choose a prayer, 

even the Lord’s Prayer, or select what holy scripture—in the case 

of Maryland and Pennsylvania, the Holy Bible of Christianity—and 

require it to be articulated in the schools. That is what the establishment principle means. 

What the free-exercise principle means is that if I want to have 

my child say a prayer, as she frequently did, in elementary school 

over her lunch, she was not barred from doing that. That was truly 

her independent decision, because that is something she learned in 

her family. That is free exercise of religion. 

Establishment is when the government decides the time, the 

place, the manner, or the content of prayer. That is properly forbidden and, I think, a long-established principle, which is why we 

don’t have constitutional amendments on this matter coming up 

every year before the United States House and Senate as we did 

20 years ago. 

Mr. SCOTT. Thank you. 

A lot has been said about the government picking a religious 

leader. Is there any question that a church, a synagogue, can discriminate based on religion in selecting their leadership with their 

congregational money? 

Rev. LYNN. We took a position in the Hosanna-Tabor case that 

was somewhat different than the Obama administration, concerned 

that that could be read too far, to act as if, if you were trying to 

hire a new rabbi, you had to make sure that you also went and considered Buddhist priests or a Wiccan priestess for the same position. 

We took the position that the issue is what can be defined as a 

minister and that a minister simply can’t be defined by act of the 

congregation determining that a whole class of people happen to be 

ministers. 

So we have now been approached, for example, by African-Americans who work for churches who have been defined as ministers 
124 

now, even though they might not have been a minister before the 

Hosanna-Tabor case, who say, we think race played a role in our 

dismissal. But thanks to the Hosanna-Tabor’s broad language, that 

individual cannot go to the EEOC and say, ‘‘Look, this is a fraud. 

It wasn’t about religion. They fired me because of race.’’ He or she 

cannot get into the EEOC’s door, which means he or she cannot 

have access to Federal courts. 

That is a terrible decision. It went too far. I don’t know why the 

administration took quite the broad position it did. We took a much 

narrower one. And I wish that that had been the majority opinion 

in that case instead of a nine-to-zero decision that opens the gates 

to widespread discrimination without any access to claim that gender or disability or even race was the true justification for a firing. 

Mr. SCOTT. Is there a difference in using Federal money rather 

than congregational money when you are talking about discrimination? 

Rev. LYNN. Oh, I think so. I mean, I think it is absolutely clear 

that the Federal Government continues to allow funding through 

grants and contracts to organizations that discriminate on the 

basis of religion. 

This is something the President said when he was a candidate 

for the Presidency in 2008 that he would change. Unfortunately, he 

has not done that, and it remains a persistent problem for civil 

rights in this country. 

To allow a group to get a government contract and not to be in 

a position to hire the best qualified person, to be allowed to hire 

on the basis of religious preference or their comfort level with hiring people of their same faith background, I think is a disgrace in 

the 21st century for anyone and certainly for this administration 

to continue to pursue. 

Mr. SCOTT. We are in the 51st anniversary of the signing by 

President Kennedy of the Equal Pay Act. If people have religious 

objections to equal pay, what happens? And is there any caselaw 

on that? 

Rev. LYNN. There is one case that I am aware of in the Fourth 

Circuit. It arose in a facility in the State of Virginia. The idea was 

that the school in Virginia would not pay men and women equally; 

they paid men more. They cited the Christian doctrine that as 

Christ is head of the church, so the husband is head of the family, 

and therefore justified giving husbands, mainly men, more money. 

This was litigated. That position lost in the First Circuit. It was 

not appealed to the United States Supreme Court. But it is another 

example of how if you say these laws can be selectively enforced, 

if I have a religious objection, it doesn’t apply to me, it applies to 

not just birth control, it applies to all kinds of other medical procedures, it applies to the civil rights rubric of our country, it applies 

to the Equal Pay Act. As Justice Scalia once mentioned, it is a 

principle that courts anarchy. 

I think this is the first time I have ever quoted Justice Scalia in 

testimony before this or any Committee. 

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

And I now recognize the gentleman from Virginia, Mr. Forbes, 

for 5 minutes. 

Mr. FORBES. Chairman, thank you. 
125 

And, gentlemen, thank you, and ladies, for being here today. 

And, Mr. Lynn, I just heard the last part of your questioning 

from my good friend from Virginia, Mr. Scott, but I read your testimony, and the part where it said that there was a radical redefinition of religious liberty that is under way. 

Are you the one attempting that radical redefinition, or are you 

suggesting that the people sitting at the table with you are? 

Rev. LYNN. Well, I think that the—my suggestion is that the 

three people around me, all of whom I have known for many decades, are unfortunately radically trying to rewrite and turn this 

into—— 

Mr. FORBES. Let me ask you this question then. Are you suggesting that the test that you put forward is the current test that 

the courts have established for religious freedom and religious liberty? 

Rev. LYNN. I would say that it depends which courts you are 

talking about. The United States Supreme Court has made a series 

of decisions—— 

Mr. FORBES. Let me ask you on the United States Supreme 

Court where they said—— 

Rev. LYNN. Yep. 

Mr. FORBES. Because here is basically what you say. You say 

that religious accommodations and exemptions should only be 

granted when, one, there is a genuine and substantial burden on 

First Amendment right, and, two, that they not impinge on the interest of others. Is that the Supreme Court test? 

Rev. LYNN. That is not the Supreme Court test. 

Mr. FORBES. So, then, the test that you set forward would really 

be a radical redefinition of religious liberty, I think. 

And let me ask you this question. Based on the definition that 

you put forward, do I have a right not to be offended? And if so, 

is there ever a time when your right to practice your religion 

should be subordinated to my right not to be offended? 

Rev. LYNN. No, I don’t like that phrase of ‘‘take offense’’ or ‘‘be 

offended.’’ I don’t think Americans have a right not to be offended. 

I do think they have the right, though, not to be asked to subsidize 

someone else’s religion with—— 

Mr. FORBES. Yeah, but that is not my question. 

Rev. LYNN [continuing]. Which they disagree. 

Mr. FORBES. So you agree with me that they don’t have a right 

not to be offended? 

Rev. LYNN. I am offended 100 times a day by something. 

Mr. FORBES. Good. If I own a convenience store in Virginia that 

sells gas and my religious beliefs require me not to open on Sunday, is there ever a time when your interest to get gas while traveling through the State should cause my religious beliefs to be subordinated to your need for gas and I should be forced to open on 

Sunday? 

Rev. LYNN. No, I think that in that example you have a good, 

colorable claim that your right not to open—it is your position, it 

is not the State law, it is your position—does put some people in 

an area of inconvenience but does not in any way insult the integrity or the dignity as if you were to say to a gay couple walking 
126 

into your restaurant, ‘‘You know, folks, I am not going to serve you. 

You have to go elsewhere.’’ 

Mr. FORBES. If I did open on Sunday but my religious beliefs required me not to sell alcohol or tobacco products on Sunday, is 

there ever a time when your interest to buy such products should 

cause my religious beliefs to be subordinate to your interest to buy 

such products and when I would be forced to sell them to you? 

Rev. LYNN. Depending on the State. If you are a State whose 

sales on Sunday of things like alcohol and tobacco are regulated by 

State law, I am afraid that if you want the license to sell, you probably under those circumstances need to also adopt the requirement 

of State law, if it is so, that you sell those products on Sunday. 

Rev. LYNN. I don’t think there is any State that would require 

me to sell alcohol and tobacco. 

Rev. LYNN. I don’t think there is either. 

Mr. FORBES. So, then, give me the State where the law would be 

as you just pointed out. 

Rev. LYNN. I don’t know that there is a State. Mine was a hypothetical, that if you seek a license from the State and then you say, 

well, I want some of the privileges of it, like the ability to sell alcohol, but I don’t want to abide by all of the other regulations—— 

Mr. FORBES. Well, there is no regulation that says I have to sell 

it. So what you are saying is that the State just says I can sell alcohol and tobacco. You are saying then I have to sell it 7 days a 

week, regardless of my religious beliefs? 

Rev. LYNN. No. I am just saying that it depends on what else you 

adopt—— 

Mr. FORBES. Well, Mr. Lynn, let me ask you this. 

Rev. LYNN [continuing]. When you adopt—— 

Mr. FORBES. Who draws these lines? 

Rev. LYNN. The courts. 

Mr. FORBES. Does the President—the courts do it? So then that 

means that the only way I know if I have a protected right under 

the First Amendment is for the court to tell me, which I think in 

and of itself can be a rather chilling impact on my First Amendment right. 

But, based on where the court currently is, their standard is that 

the State has to have a compelling State interest and that they 

have to impose that with the least restrictive means possible. 

Would you agree that is the current standard? 

Rev. LYNN. That is a part of the test. You do have to look at 

whether there is a burden on religion to begin with, which is in my 

example—— 

Mr. FORBES. I agree, you have to some burden, but I don’t think 

the court always says it has to be the substantial burden, because 

it protects First Amendment rights. 

But you would agree that that is the current court test, that it 

has to be a compelling State interest and the least restrictive 

means possible? 

Rev. LYNN. In application of the Religious Freedom Restoration 

Act, absolutely, that is the standard. 

Mr. FORBES. And since—— 

Rev. LYNN. Unfortunately, all those terms are now at issue before courts—— 
127 

Mr. FORBES. And since—— 

Rev. LYNN [continuing]. Because, Congressman—— 

Mr. FORBES [continuing]. My time has expired, my red light is 

on, I would just conclude by saying, I think to change that standard would be the radical redefinition of religious liberty. 

And, with that, Mr. Chairman, I yield back. 

Mr. FRANKS. I thank the gentleman. I wish we had more Forbes 

around. 

I would now yield to Mr. Johnson for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Dean Staver, are you the same Mathew D. Staver as is Mathew 

D. Staver, PA? 

Mr. STAVER. I had a commercial law firm that was Mathew D. 

Staver, PA. 

Mr. JOHNSON. Was that you, or was that a separate person? 

Mr. STAVER. In Florida, if you name your law firm after your— 

in a situation like that, it was me, but it was also other attorneys 

in my law firm that I hired. We had up to 40 employees and 10 

attorneys. That was back in the 1990’s. 

Mr. JOHNSON. Did you give birth to that entity, to that person, 

Mathew D. Staver, P.A.? Did you give birth to it? 

Mr. STAVER. I incorporated it under the laws of the State of Florida. 

Mr. JOHNSON. So a corporation is not the product of a union between a man and a woman? 

Mr. STAVER. Not the last time I checked. 

Mr. JOHNSON. And a corporation has no ability to join a church, 

does it? 

Mr. STAVER. No ability to join a church? 

Mr. JOHNSON. Uh-huh. 

Mr. STAVER. A corporation could be an integrated auxiliary of a 

church and be part of a church. 

Mr. JOHNSON. Well, I mean, a person joining a church gets baptized. You have never heard of a corporation being baptized, have 

you? 

Mr. STAVER. I have not, but if I were Mathew D. Staver, P.A., 

and I got baptized, I would be Mathew D. Staver being baptized. 

Mr. JOHNSON. You would be a natural person born to a man and 

a woman who decided to go to church and be baptized, right? 

Mr. STAVER. Yes, operating as Mathew D. Staver, P.A. 

Mr. JOHNSON. But, now, Mathew D. Staver, P.A., does not have 

that ability, does it? 

Mr. STAVER. Well, we never tried it, that is for sure. 

Mr. JOHNSON. Well, I have never heard of it being done, myself. 

In fact, an entity such as Mathew D. Staver, P.A., which was created 25 years ago, is actually dead, is it not? 

Mr. STAVER. That is correct. It has been dissolved and has 

passed on to another world. 

Mr. JOHNSON. But it has not passed on to heaven, however. 

Mr. STAVER. I don’t know where it is, actually. 

Mr. JOHNSON. It did not pass to—— 

Mr. STAVER. I didn’t have that conversation before we dissolved 

it. 
128 

Mr. JOHNSON. It did not pass through the pearly gates and enter 

the kingdom of heaven, did it? 

Mr. STAVER. No, but its creator certainly—— 

Mr. JOHNSON. Well, I am not talking about Mathew D. Staver. 

I am talking about Mathew D. Staver, P.A., your baby. And that 

baby is dead. But you could always bring it back to life if you paid 

the fees down there in Florida and had it reborn, because it—— 

Mr. STAVER. You could potentially resurrect it, yes. 

Mr. JOHNSON. Yeah. Yeah. And that would be something that 

you as a person can do. 

Mr. STAVER. I could do that. 

Mr. JOHNSON. And, now, Mathew D. Staver has no conscience. 

Mr. STAVER. Mathew D. Staver has no conscience? Or Mathew D. 

Staver, P.A.? 

Mr. JOHNSON. Mathew D. Staver, P.A., has no conscience. 

Mathew D. Staver, P.A. 

Mr. STAVER. Mathew—yeah. Mathew D. Staver, just for the 

record, since we are on the record—— 

Mr. JOHNSON. Does have a conscience? 

Mr. STAVER [continuing]. Does have a conscience. But Mathew D. 

Staver, P.A., reflects the values of the incorporator or the creator, 

which was me. 

Mr. JOHNSON. But it doesn’t have a soul, though, does it? 

Mathew D. Staver, P.A., it doesn’t have a soul, does it? 

Mr. STAVER. No, not that I am aware of. 

Mr. JOHNSON. Well, not that I am aware of either. Now—— 

Mr. FRANKS. Do any lawyers have souls? Just for clarification. 

Mr. STAVER. Yeah. And since we are on the record, definitely, 

they do have souls. So—— 

Mr. JOHNSON. Well, would you contend that a corporation that 

can’t go to heaven, it can be reborn in perpetuity if you pay money, 

it is not born to the union between a man and a woman, it doesn’t 

have a soul, it doesn’t have a heart, doesn’t attend church, doesn’t 

get baptized, can’t pay tithes and offerings, do you contend that a 

corporation has a First Amendment right upon which it can refuse 

to provide insurance coverage for specific medical treatments to an 

employee legally entitled to the coverage because it asserts a First 

Amendment right to freedom of religion? 

Mr. STAVER. Yes, I do. And I know a lot of people who have not 

been baptized, don’t pay tithes, don’t go to church, don’t have a 

heart, and I don’t know whether they have a soul of whatever, 

but—— 

Mr. JOHNSON. Well, you know they—— 

Mr. STAVER.—I know that they can go through plastic surgery 

and medical treatment to stay alive, that they still have rights as 

a person. 

Mr. JOHNSON. Pastor Staver, you know that every human being 

has a soul. 

Mr. STAVER. Oh, sure. 

Mr. JOHNSON. You know that. 

Mr. STAVER. Yeah. 

Mr. JOHNSON. But you also know that no corporation is equal to 

a person and no corporation has a soul. You know that. 
129 

Mr. STAVER. There are actually corporations, not to be technical, 

that are called ‘‘corporations sole,’’ but that doesn’t mean you have 

a soul. However—— 

Mr. JOHNSON. I mean in the way that—— 

Mr. STAVER.—I believe that corporations, especially those that 

are closely held corporations, as in the case of Hobby Lobby, reflect 

the values of the creator, as Mathew D. Staver reflected my values. 

Mathew D. Staver, P.A., was a reflection and an extension of 

Mathew D. Staver. 

Mr. JOHNSON. But it did not have its own First Amendment right 

to freedom of speech and—— 

Mr. STAVER. Yes, it—— 

Mr. JOHNSON [continuing]. Freedom of religion, did it? 

Mr. STAVER. Yes, I believe it does. 

Mr. JOHNSON. All right. 

Mr. STAVER. Of course, the issue of freedom of religion is before 

the court, but free speech has already been decided. 

Mr. JOHNSON. Free speech has already been decided, and that is 

what really scares me about a freedom-of-religion issue being before the U.S. Supreme Court at this particular time. It scares me. 

And, with that, I will yield back. 

Mr. FRANKS. I thank the gentleman. 

Well, while we have debated whether corporations have hearts 

and souls, sometimes we—there are those of us that believe that 

the unborn do, in fact, have hearts and souls and that when they 

are aborted it assaults their integrity and dignity and that some 

Christians would rather not subsidize that and feel like that under 

the Constitution we should have that right. 

So I have just tried to pull together a few pieces of the testimony 

here. I appreciate all of you for being here. And I hope all of us 

consider the importance of religious freedom. This has been a very 

lively debate, and if there really is a God, it might be relevant. 

So, with that, all Members have—let’s see. Again, thank you all 

for attending, and this concludes today’s hearing. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And I thank the witnesses, and I thank the members of the audience. 

And this meeting is adjourned. 

[Whereupon, at 4:48 p.m., the Subcommittee was adjourned.] 

(131) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice 

Religious freedom is a fundamental pillar of American life. Whatever one’s religious beliefs, our Constitution enshrines the notion that the government remain 

neutral with respect to religious belief, neither favoring one religion over others, nor 

favoring religious belief over non-belief. 

Our Constitution and statutes also require that the government not substantially 

burden the free exercise of religion absent a compelling interest and a less burdensome means of meeting that interest. 

In expounding upon the meaning of these Constitutional provisions, Thomas Jefferson wrote in a letter to the Danbury Baptist Association in 1802: ‘‘I contemplate 

with sovereign reverence that act of the whole American people which declared that 

their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between 

Church and State.’’ 

It is because religious freedom is so fundamental that it is protected in the very 

first Amendment in the Bill of Rights. 

It is also why I was the sponsor of Tennessee’s Religious Freedom Restoration Act 

back in January 1998, when I was a member of the Tennessee Senate. 

Like the federal RFRA, the Tennessee RFRA protects religious liberty by ensuring 

that any governmental action that substantially burdens the free exercise of religion 

is prohibited unless there is a compelling state interest. 

Tennessee’s RFRA, like the federal RFRA, seeks to strike a balance between the 

fundamental right to practice one’s religion free from government interference and 

the ability of the government to perform its basic duties, including the protection 

of public health and safety and fighting discrimination. 

Any discussion of religious liberty must also include a discussion of the threats— 

both governmental and non-governmental—to members of minority religions. 

For example, as Reverend Barry Lynn, one of our witnesses, notes in his written 

testimony, a Muslim congregation in Murfreesboro, Tennessee faced intimidation 

and threats of violence from the local community when it attempted to construct a 

new mosque. While the mosque ultimately was built, the legal fight over its construction ended only recently, at great cost to the congregation for a fight that it 

should never have had to fight. 

This example, which, unfortunately, is only one of many, reminds us that the Bill 

of Rights’ fundamental purpose is to protect the minority, the unpopular, and the 

non-mainstream from majority tyranny. 

Where one’s right to free exercise of religion ends and majority tyranny begins 

will be the crux of our discussion today. 

Seven years ago, this Committee heard from Monica Goodling, who at that time 

had just resigned as a Justice Department official, concerning hiring practices at the 

Department during the Bush Administration. 
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Ms. Goodling was a graduate of Regent University Law School, which, according 

to its website, seeks to provide legal training with ‘‘the added benefit of a Christian 

perspective through which to view the law.’’ 

There was evidence at the time that Ms. Goodling and others screened job candidates for career positions at the Justice Department based on their partisan affiliations. Although she denied it when I asked her, it stands to reason that religious 

belief could have also played a role in hiring decisions. 

A religious litmus test for public office or for career public service positions has 

no place in a society that values religious liberty. 

More broadly, attempts to re-make our Nation’s longstanding political and legal 

culture so as to give already-dominant religious groups more of the coercive power 

of government must be confronted, for if such attempts are successful, the outcome 

would represent a threat to a free society. 

I look forward to a vibrant discussion. 

f 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Religious freedom was one of the core principles upon which our Nation was 

founded. 

The First Amendment protects this fundamental freedom through two prohibitions. The Establishment Clause prohibits the federal government from issuing a 

law respecting the establishment of religion and the Free Exercise Clause prohibits 

the government from affecting the free exercise thereof. 

When discussing the government’s compliance with these prohibitions, we should 

keep in mind several points. 

To begin with, the real threat to religious liberty is continuing religious bias or 

intolerance against members of minority religions. 

For example, American Muslim communities across the United States since September 11, 2001 have been targets of often hostile communities and sometimes even 

government actions. 

There have been numerous well-founded complaints of religious profiling by federal, state, and local law enforcement agencies. In fact, bills have been introduced 

in Congress as well in various state legislatures targeting Islam. 

It was recently reported that the Transportation Security Agency is using a ‘‘behavioral detection program’’ that appears to focus on the race, ethnicity and religion 

of passengers. 

As many of you may know, I represent Michigan’s 13th District, which is home 

to one of America’s largest Muslim communities. So, I am particularly disheartened 

by the overt challenges these communities face. 

Targeting American Muslims for scrutiny based on their religion violates the core 

principles of religious freedom and equal protection under the law. All Americans— 

regardless of their religious beliefs—should know that their government will lead 

the effort in fostering an open climate of understanding and cooperation. 

Yet in the name of religious freedom we cannot undermine the government’s fundamental role with respect to protecting public health and ensuring equal treatment under the law. 

Currently pending before the United States Supreme Court are two cases— 

Sebelius v. Hobby Lobby Stores and Consestoga Wood Specialities v. Sebelius—that 

will hopefully clarify this issue. 

The issue in those cases is whether the government can require can require forprofit corporations that provide group health plans for their employees to provide 

female employees with plans that cover birth control and other contraceptive services as required by the Affordable Care Act, notwithstanding the religious objections 

of the corporations’ owners to contraceptives. 

I along with 90 of my colleagues in the House filed an amicus brief in those cases 

disputing that the claim that corporate plaintiffs are ‘‘persons’’ for the purposes of 

the Free Exercise Clause. 
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And, even if they are capable of having religious beliefs, those corporations are 

not entitled to relief under the Religious Freedom Restoration Act. 

Moreover, the Affordable Care Act’s mandate, we argue, serves two compelling 

governmental interests—namely, the protection of public health and welfare and the 

promotion of gender equality—that outweigh whatever attenuated burden the mandate might place on the corporations’ free exercise rights. 

Finally, as even some of the Majority witnesses acknowledge, the Obama 

Administration’s enforcement efforts with regard to protecting religious 

freedom—in the workplace and elsewhere—are to be commended. 

On various fronts, the Administration has striven to take a balanced approach to 

this issue. For example, it added a religious employer exemption to the HHS contraceptive mandate in response to objections from religious employers. 

These efforts ensure that America continues to foster a safe and welcoming environment for all religious practices and communities without sacrificing our other 

freedoms and needs. 

f 
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Material from the Anti-Defamation League (ADL) submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and 

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