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STATE OF RELIGIOUS LIBERTY IN THE 

UNITED STATES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 26, 2011 

Serial No. 112–63 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

OCTOBER 26, 2011 

Page 

OPENING STATEMENTS 

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

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3 

WITNESSES 

William C. Lori, Bishop of Bridgeport, CT 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

Barry W. Lynn, Reverend, Americans United for the Separation of Church 

and State 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 17 

Colby M. May, Esq., Director & Senior Counsel, Washington Office, American 

Center for Law and Justice 

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

Prepared Statement ............................................................................................. 49 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from William C. Lori, Bishop of Bridgeport, CT ................................................................................................................. 124 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution 

Letter from John C. Hagee, Cornerstone Church ............................................. 129 

Letter from Rajdeep Singh, Director of Law and Policy, The Sikh Coalition . 131 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution 

Prepared Statement of Rev. Dr. C. Weldon Gaddy, President of Interfaith 

Alliance .............................................................................................................. 134 

Prepared Statement of Suhag A. Shukla, Esq., Managing Director/Legal 

Counsel; Samir Kalra, Esq., Director and Senior Fellow, Human Rights; 

and Nikhil Joshi, Esq., Member, Board of Directors, the Hindu American 

Foundation ........................................................................................................ 138 

Prepared Statement of Joe Solmonese, President, Human Rights Campaign 151 

Prepared Statement of Marc D. Stern, Esq., Associate General Counsel 

for Legal Advocacy, the American Jewish Committee (AJC) ........................ 154 

Letter from Paul J. Kurtz, Chairperson, and Normal Allen, Jr., Director 

of International Outreach, the Institute for Science and Human Values 

(ISHV) ................................................................................................................ 167 

Letter from Jon O’Brien, President, Catholics for Choice ................................ 169 

Material submitted by William C. Lori, Bishop of Bridgeport, CT 

Letter from the Most Reverend Timothy M. Dolan, Archbishop of New 

York ................................................................................................................... 171 

Article titled ‘‘Battle flare between White House. Catholic Groups,’’ by 

Jerry Markon, The Washington Post .............................................................. 186 

(1) 

STATE OF RELIGIOUS LIBERTY IN THE 

UNITED STATES 

WEDNESDAY, OCTOBER 26, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 2:40 p.m., in room 

2141, Rayburn Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Chabot, King, Jordan, Nadler, 

Quigley, and Scott. 

Staff present: (Majority) Zach Somers, Counsel; Sarah Vance, 

Clerk; (Minority) David Lachmann, Staff Director; and Veronica 

Eligan, Professional Staff Member. 

Mr. FRANKS. Good afternoon. This Constitution Subcommittee is 

called to order this afternoon for the important purpose of examining the state of religious liberty in America. This is something, 

in my opinion, that this Committee should do on a regular basis, 

because religious liberty and freedom of conscience are the source 

of all other liberties that mankind has been endowed with. They 

occupy an absolutely essential place among our unalienable rights. 

It is interesting to remind ourselves that Christopher Columbus 

was exercising his religious liberty when he went out into the 

oceans to find a new world and came upon America. It is also interesting to note that those who first colonized this Nation from England came here in search of religious freedom, religious liberty, and 

when they brought their Constitution forward, they had debates 

about the subject. 

One Richard Henry Lee, in the discussion that preceded the composition of our Constitution, said ‘‘It is true, we are not disposed 

to differ much at present about religion. But when we are making 

a constitution, it is to be hoped for ages and millions yet unborn, 

why not establish the free exercise of religion as part of the national compact?’’ What an insightful question that he asked at the 

time. I am grateful that they proceeded on that basis. 

Without religious liberty and freedom of conscience, all other liberties would cease to exist. That is why, from the Magna Carta to 

our own Bill of Rights, religious freedom has been recognized as 

the ‘‘first liberty.’’ 

Religious freedom and a thriving religious culture have always 

been defining attributes of life in America. Today, the United 

States is, comparatively speaking, a very religious Nation. In fact, 

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polls show that well over 90 percent of Americans actually believe 

in God. Despite the fundamental nature of religious freedom and 

its importance in American life, it has come under attack in recent 

years as never before. If it is to be preserved, we must be more 

awake and more vigilant than ever before. 

We must remember that religious liberty involves much more 

than freedom of worship alone. Religious liberty is exercised both 

in private and in public and includes the freedom to build and operate all the institutions of religion. 

Unfortunately, those who lack appreciation for the public component of religious liberty, and those who fail to see the need to make 

religious exceptions from many generally applicable laws, are putting the religious freedom that we cherish so much in grave danger 

for us all. Rather than taking advantage of the ample room the 

Constitution leaves for the accommodation of religion, increasingly 

Federal, state, and local governments are failing to create religious 

exemptions from otherwise neutral laws. As one prominent scholar 

of religious liberty has observed, government officials should ‘‘regard the free exercise of religion not primarily as a danger to be 

contained or a nuisance to be managed but as a human, social, and 

political good to be both protected and promoted.’’ 

However, so-called anti-discrimination policies that make no exception for religious beliefs are increasingly posing an ominous 

threat to religious liberty. For most religious groups, public service 

is a constituent 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 in the world. 

But in the name of anti-discrimination or neutrality, these traditional religious services to the sick and less fortunate are threatened as Federal, state, and local governments increasingly regulate 

private social services in ways that will not accommodate or even 

tolerate many religious beliefs on an otherwise neutral basis. These 

regulations are forcing religious groups to choose between abandoning their social work or abandoning their sincerely held religious beliefs in order to continue to serve the needy. 

Additionally, there are some who wish to use the Establishment 

Clause to eradicate free religious expression in a manner that is 

the complete antithesis of the original intent of that noble clause 

in our Constitution. They wish to vanquish any acknowledgement 

of religion from the public square, pushing traditional religion behind closed doors and replacing it in public life with a new orthodoxy of leftist secularism. 

That America is a Nation founded upon the Judeo-Christian 

principles of the Bible is an irrefutable axiom of history. Our very 

first president and father of our country, George Washington, 

hand-wrote in his own personal prayer book, ‘‘It is impossible to 

rightly govern the world without God and the Bible.’’ Thomas Jefferson, our third president and one of the critical writers of our 

Declaration of Independence, authored the first plan of education 

to use the Bible for teaching and reading to students. Abraham 

Lincoln, our 16th president, said ‘‘I believe the Bible is the best gift 

God has given to man. All the good savior gave to the Earth was 

communicated through this book.’’ 

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Now the Nation and the Constitution those leaders built and 

gave to ensuing generations also gave us the power as individuals 

to reject the religious beliefs that motivated them to do so. But we 

do not have the right to redact the history of our Nation’s religious 

heritage or to crush the religious expression of individuals who still 

hold it in their hearts. 

So oftentimes those who would trample underfoot the religious 

freedom of their fellow Americans do so in the name of a ‘‘strict 

wall of separation between church and state.’’ But rather than 

pointing out the profound historical misinterpretation of that 

phrase, I will only remind all of us that while that phrase did indeed appear prominently in the Soviet constitution, it appears nowhere in the United States Constitution. 

The religious freedom protected by the First Amendment encompasses more than the ability to seek religious truth behind the 

walls of worship. It includes the right to embrace and express one’s 

religious beliefs in public. This means that Federal, state, and local 

governments must leave room for religious individuals and groups 

to serve the community in accordance with their sincerely held beliefs, welcome religious perspectives in the debate over important 

issues, public issues, and allow public acknowledgement of the importance of religion in America. 

So, ladies and gentlemen, we should all remind ourselves this 

morning that true tolerance lies not in pretending that we have no 

differences as Americans, but rather in being kind and respectful 

to each other in spite of our differences, religious or otherwise, and 

I hope this hearing can shed light on the current state of religious 

liberty in the United States both in terms of areas where we are 

succeeding in embracing the American dream of true religious freedom and in those in which we are failing. 

Thank you for being here, and I will yield now to the Ranking 

Member for an opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. I want to begin by 

thanking you for scheduling this hearing on a topic that is central 

to our common American values, our first freedom. I am concerned 

about threats to religious liberty in America, threats from legislatures, from the Supreme Court, from candidates, and from demagogues. Too often, the rights of unpopular minorities are trampled 

upon by the majority, and when it comes to religion, everyone is 

unpopular somewhere. 

But threats also come from laws not necessarily targeting religion. Nonetheless, writing in Employment Division v. Smith, Justice Scalia said, ‘‘If prohibiting the exercise of religion is merely the 

incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.’’ He went on to 

make the appalling statement that, ‘‘It may fairly be said that leaving accommodation to the political process will place at a relative 

disadvantage those religious practices that are not widely engaged 

in, but that is an unavoidable consequence of democratic government. Precisely because we are a cosmopolitan Nation made up of 

people of almost every conceivable religious preference, and precisely because we value and protect that religious divergence, we 

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plied to the religious objector every regulation of conduct that does 

not protect an interest of the highest order.’’ 

Luxury? That appalling hostility to religious liberty, coming as it 

did from a Justice who is hailed as an icon of the conservative 

movement, was truly chilling. Congress responded swiftly with the 

Religious Freedom Restoration Act or RFRA, legislation that I was 

privileged to work on when I was first elected to Congress. It 

united groups as diverse as the American Civil Liberties Union and 

the National Association of Evangelicals. 

The rule it restored, of strict scrutiny, did not provide a blanket 

exemption for all conscientious objections—the Supreme Court disposed of that approach in the Estate of Thornton v. Caldor—but 

rather it restored the balancing test that had served us so well for 

three decades. It is by balancing those interests, and forcing government to demonstrate an interest of the highest order before 

squelching a religious practice, that strikes the right balance. 

Although the Supreme Court invalidated RFRA in the Boerne decision in 1997,at least as applied to states—it is still good law as 

applied to the Federal Government—I and Members from both 

sides of the aisle responded with the Religious Land Use and Institutionalized Persons Act, which passed in 2000 and remains good 

law. 

But government is not the only threat to religious liberty. There 

are many in this country who continue to oppose the construction 

of houses of worship in our communities. We had a particularly 

ugly incident in my own district, although I am proud to say that 

the local community, local elected officials, and our courts stood up 

to the bigots and demagogues who opposed the right of local Muslims to erect a community center. 

There are also those who believe that they have the right to deny 

employment or housing to others based solely on a person’s religion. While I think most of us would accept that the ministerial exemption, the existence and scope of which are currently before the 

Supreme Court, is constitutionally mandated, some employers 

think they have a right either to refuse to hire someone, or to 

refuse to give them time off for religious observances, or to refuse 

to accommodate the wearing of religious articles. 

So there are many threats to religious liberty in America today, 

and I am pleased we will have the opportunity to examine the 

broad range of those threats today. I thank you, Mr. Chairman. I 

yield back the balance of my time. 

Mr. FRANKS. Without objection, the other Members’ opening 

statements will be made part of the record. 

And I want to welcome the witnesses and welcome those that are 

observing here today with us. 

Our first witness is Bishop William Lori, the Bishop of Bridgeport, Connecticut, and the Chair of the U.S. Conference of Catholic 

Bishops’ Committee on Religious Liberty. 

Bishop Lori was ordained to the priesthood in 1977. He became 

Auxiliary Bishop of Washington in 1995, and was installed as the 

Bishop of Bridgeport in 2001. Bishop Lori is Chairman of the Board 

of Trustees of Sacred Heart University and past-Chairman of the 

Board of Trustees of the Catholic University of America. 

5 

Our second 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, and in 2006 

authored the book ‘‘Piety and Politics: The Right-Wing Assault on 

Religious Freedom.’’ 

Our third and final witness is Colby May, Senior Counsel and Director of the Washington office of the American Center for Law and 

Justice. With the ACLJ since 1994, Mr. May specializes in Federal 

litigation, regulatory proceedings, communications and technology, 

non-profit tax issues, and First Amendment law. He has represented parties and filed friend of the court briefs in several landmark Supreme Court cases. Mr. May also serves as adjunct law 

professor at Regent University and on the boards of directors of 

several civic and charitable organizations. 

Each of the witnesses’ written statements will be entered into 

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

his testimony in 5 minutes or less. To help you stay within that 

time, there is a timing light on your table. When the light switches 

from green to yellow, you will have 1 minute to conclude your testimony. When the light turns red, it signals that the witness’ 5 minutes have expired. 

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

sworn. 

[Witnesses sworn.] 

Mr. FRANKS. Thank you. You may take a seat. 

I would now like to recognize our first witness, Bishop Lori, for 

5 minutes. 

Bishop? 

TESTIMONY OF WILLIAM C. LORI, 

BISHOP OF BRIDGEPORT, CT 

Bishop LORI. Thank you, Mr. Chairman. On behalf of the United 

States Conference of Catholic Bishops, the USCCB, allow me to 

thank you for the inviting me to be with you today to offer testimony on religious liberty. 

Religious liberty is not merely one right among others, but enjoys 

a certain primacy. Pope Benedict XVI recently explained: ‘‘It is indeed the first of human rights, not only because it was historically 

the first to be recognized but also because it touches the constitutive dimension of man, his relation with his Creator.’’ Religious liberty is also first on the list in the Bill of Rights, and is commonly 

called our ‘‘First Freedom.’’ 

Religious liberty is also prior to the state itself. It is not merely 

a privilege that the government grants and so may take away at 

will. Instead, religious liberty is inherent in our very humanity, 

hard-wired into each and every one of us by the Creator. This insight is reflected in the laws and traditions of our country from inception. The Declaration of Independence boldly proclaims as a 

6 

self-evident truth that our inalienable rights are ‘‘endowed by our 

Creator’’—not by the State. 

Religious freedom is certainly an individual right, but it also belongs to churches and other religious institutions comprised of citizens who are believers and who seek, not to create a theocracy, but 

rather to influence their culture from within. An indispensable element of religious freedom is the right of churches ‘‘not to be hindered, either by legal measures or by administrative action on the 

part of government, in the selection, training, appointment, and 

transferral of their own ministers.’’ We are grateful that the Federal courts, at least to date, have uniformly recognized this protection. 

The Church also teaches that these rights of religious freedom 

are held not just by Catholics. Government has the duty ‘‘to assume the safeguard of the religious freedom of all its citizens in an 

effective manner, by just laws or by other appropriate means.’’ The 

United States stands strongly for the principle that these rights of 

freedom are also rights of equality, that government should not impose any special civil disadvantages or otherwise discriminate 

against its citizens based on religion. 

Although it may not have always lived up to its principles, our 

country’s unique capacity for self-correction has always provided 

avenues to return to these principles. Regrettably, now is the time 

for such self-correction. 

In the last few months we have witnessed grave threats to religious liberty. In August, the U.S. Department of Health and 

Human Services issued regulations to mandate the coverage of contraception, including abortifacients, and sterilization as preventive 

services in almost all private health insurance plans. 

In May, HHS added a new requirement to some of its service 

agreements that would bar otherwise qualified service providers if 

conscience prevents them from facilitating abortion and contraception. USAID is increasingly requiring contractors to provide contraception in a range of international relief and development programs. 

The Federal Department of Justice has started filing briefs actively attacking DOMA’s constitutionality, claiming that supporters 

of the law could only have been motivated by bigotry. DOJ needlessly attacked the very existence of the ministerial exception before the Supreme Court, in opposition to a vast coalition of religious groups urging its preservation. At the state level, most recently in New York and Illinois, religious liberty protections associated with the redefinition of marriage have fallen far short of what 

is necessary. 

The root causes of these threats are profound, but we can and 

must treat the symptoms immediately, lest the disease spread so 

quickly that the patient is overcome before the ultimate cure can 

be formulated and delivered. 

As to the preventive services mandate, I urge the passage of the 

bipartisan Protect Life Act, Abortion Non-Discrimination Act, and 

Respect for Rights of Conscience Act. We welcome recent House action on some of these bills. 

The illegal conditions that government agencies are placing on 

religious providers of human services may call for a Congressional 

7 

hearing or some other form of investigation to ensure compliance 

with applicable conscience laws, as well as to identify how these 

new requirements came to be imposed. Additional statutes may be 

appropriate to create new protections of conscience or private 

rights of action. Unfortunately, enforcement of the existing protections now lies principally with the very Federal agencies that may 

be violating them. 

This body should reject the so-called Respect for Marriage Act 

and continue to defend DOMA in court as long as necessary. Moreover, DOJ’s decisions to abandon both DOMA and the ministerial 

exception seem to warrant congressional inquiry. To the extent 

that state adoption and foster care services are federally funded, 

this opens an avenue for protecting the religious liberty of faithbased service providers which should be explored more fully. 

Thank you for your attention, and again, for your willingness to 

give religious freedom the priority it is due. 

[The prepared statement of Bishop Lori follows:] 

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Mr. FRANKS. Thank you, Bishop Lori. 

Reverend Lynn, thank you for being with us this afternoon. You 

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TESTIMONY OF BARRY W. LYNN, REVEREND, AMERICANS 

UNITED FOR THE SEPARATION OF CHURCH AND STATE 

Reverend LYNN. Thank you very much, Mr. Chairman. 

Mr. FRANKS. Reverend Lynn, would you make sure that microphone is on? 

Reverend LYNN. How is this? 

Mr. FRANKS. That sounds good. 

Reverend LYNN. All right. Thank you, and thank you for holding 

this hearing. 

We have a dizzying level of religious freedom in this country, and 

even more so if you happen to be a member of a well-established 

or majority faith in America. There is no war against Christianity 

being waged by elected officials, or even by Federal courts. 

The real threat to religious liberty comes from those who seek 

special government blessings for those in favored faiths and conversely the treatment of members of other faiths as second-class 

citizens. 

When real religious freedom is denied, we can look very ugly in 

America. When Muslims in Murfreesboro, Tennessee tried to erect 

a mosque and a lawsuit backed by the lieutenant governor claimed 

that Islam is not a true religion, we can look ugly. 

When members of the community in Katy, Texas protested the 

construction of a mosque by staging pig races next to the property, 

we can look ugly. 

When the Park 51 Muslim Community Center wants to erect a 

building on its own land and the American Center for Law and 

Justice sues to prevent them from doing so, we can look ugly and 

even hypocritical. 

When religious freedom is delayed, we can look like a very coarse 

America. It took 10 years and a lawsuit from Americans United before the widow of U.S. Army Sergeant Patrick Stewart, killed in Afghanistan, was permitted to put a pentacle, a Wiccan sacred symbol, on her husband’s memorial marker in a Nevada veterans cemetery. The VA in previous Administration refused to add that symbol to the 38 other emblems of honor because a top official there 

had heard Commander-in-Chief George W. Bush say on television 

that he didn’t think Wicca was a real religion. 

And how coarse that in Johnson County, Tennessee, when an 

atheist seeking merely to put up an historical display about the 

Constitution’s guarantee of religious freedom in an open forum 

area of the courthouse is denied access and a commissioner says, 

‘‘This is a good Christian community that welcomes people who 

move here. But if you want to attack God, you should leave.’’ I wonder if that official would tell a firefighter putting out a blaze in his 

house to leave if he learned that that brave rescuer happened to 

be a freethinker. 

When religious practice is compelled, we can look like a theocratic America. Bay Minette, Alabama offers certain offenders the 

so-called ‘‘option’’ to avoid jail or fines by going to church every 

week for a year. 

Recently, Americans United reached a settlement with the heavily government subsidized Central Union Mission in the District of 

Columbia to end their practice of not allowing those in need to eat 

16 

lunch or have a bed for the night unless they agreed to attend a 

worship service. 

When government supports religious preferences in hiring with 

tax dollars through the faith-based initiative, and two Administrations allow religious groups to give special preference to people of 

their own religion, we can look like a discriminatory America. 

World Vision is one of the largest recipients of grants from the 

U.S. Agency for International Development. Government grants 

amount to about a quarter of that organization’s total U.S. budget. 

Yet this organization will hire only those who are Trinitarian 

Christians even in predominantly Muslim or Hindu countries, arguing ‘‘that we’re very clear from the beginning about hiring Christians. It’s not a surprise, so it’s not discrimination.’’ Collateral to 

that, there are over 200 special exceptions and exemptions in Federal law for religious groups today. Now some groups, as we’ve 

heard, are seeking even more exemptions, ones that can cost vulnerable people good health care. 

When certain expansive exemptions are passed, we can look like 

an America of special privilege for the powerfully connected, and 

sometimes these exemptions can make America look dangerous. A 

bill that just passed this House would actually permit medical 

workers to refuse to serve a patient even in a medical emergency. 

Under this proposal, a woman who needs an abortion to save her 

life may simply be left to die if the medical facility has a staff full 

of people who disapprove of abortion. 

Let us not be fooled. You may hear some holy horror stories with, 

at most, a scintilla of truth. You may hear claims of rights being 

violated that do not really exist, with remedies proposed that are 

merely an excuse for obtaining special treatment. You will hear 

Biblical tenets used to justify legislation where the real basis for 

decision-making must not be holy scripture, as anybody understands it, but the core constitutional values shared by all of us. 

In conclusion, there is an actual movement of several organizations in America to try to ban the use of sharia law in the courts. 

Sharia law is not the threat. The actual threat is that there are 

serious efforts afoot to try to twist the purpose of our own Constitution, and in this twist we will defy George Washington’s promise 

that we would ‘‘give to bigotry no sanction.’’ We would degrade 

James Madison’s claim that in this country we cherish, in his 

words, ‘‘the mutual respect and good will among citizens of every 

religious denomination.’’ That would not only make America look 

exclusionary, it would make it so, and that would be the ultimate 

tragedy for religious freedom in our country. 

Thank you. 

[The prepared statement of Reverend Lynn follows:] 

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Mr. FRANKS. Thank you, Reverend Lynn. 

And now, Mr. May, you are recognized for 5 minutes, sir. 

TESTIMONY OF COLBY M. MAY, ESQ., DIRECTOR & SENIOR 

COUNSEL, WASHINGTN OFFICE, AMERICAN CENTER FOR 

LAW AND JUSTICE 

Mr. MAY. Thank you, Chairman Franks, Ranking Member Nadler, and Members of the Constitution Subcommittee, for the opporVerDate Aug 31 2005 16:23 Dec 06, 2011 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 H:\WORK\CONST\102611\70913.000 HJUD1 PsN: DOUGA

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tunity to participate in this important hearing on the state of religious liberty in America today. As Edmund Burke rightly noted 

during the American founding, eternal vigilance is the price of liberty, and today’s hearing is a necessary and valuable part of that 

vigilance. 

The American Center for Law and Justice, the organization I 

represent today, defends religious liberties throughout the world. 

Nowhere is our effort more profound, however, than here at home. 

This Nation’s founders cherished religious liberty and built our 

country on the assurance that America would be free to practice 

the religion of their choice without the fear of government interference. While the liberty to practice one’s religion is greater in this 

country than in any other, conflicts between religious liberty and 

other interests do exist. In this conflict, many of our fundamental 

rights are sustained through the efforts of Congress and state legislatures. Others must be defended daily in the courts of our Nation. 

In several areas, as Congressman Nadler noted, Congress and 

the courts have, in fact, successfully protected religious liberty in 

many ways, legislation such as the Religious Freedom Restoration 

Act that Congressman Nadler mentioned, the Religious Land Use 

and Institutionalized Persons Act, Title VII of the Civil Rights Act 

and, of course, the Equal Access Act. These are all good examples. 

But with these successes, however, issues of controversy remain 

where courts have curtailed religious liberties. Among the most 

controversial are within the public schools and universities of our 

Nation. University speech codes, meant to create an environment 

in which all students can partake in the educational experience 

free from discrimination and harassment, have severely undermined religious liberties. In fact, religious students and groups can 

be prevented from sharing beliefs with other students out of fear 

of being charged with harassment. Vague policies deter students 

from espousing beliefs on issues of public concern such as the definition of marriage, gender roles, and absolute religious truth. 

Courts have given public university officials the power to punish 

students on the grounds that their religious speech is insulting or 

that it disrupts communal living. 

Court decisions such as the Supreme Court’s recent Christian 

Legal Society v. Martinez and the 11th Circuit’s decision earlier 

this year in Alpha Delta v. Reed also restrict religious freedom on 

public colleges and school campuses. In upholding school policies 

that require religious groups to open their leadership positions to 

students who do not share the group’s beliefs essentially destroys 

the equal right to associate freely with like-minded individuals as 

a recognized religious school group. Religious groups must now either open their leadership posts to those who revile and ridicule 

their deeply held religious beliefs, or they must cease to exist. Or, 

if they exist, they must do so as second-class citizens, ineligible for 

the benefits received by officially-recognized organizations. 

The right of parents to direct and protect their children’s religiously-based morals is another battleground. Religious parents 

who send their children to public school often find their religious 

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havior that many religious parents and, in fact, many parents in 

general oppose. 

Who can forget the ruling in Brown v. Hot, Sexy and Safer Productions where, during a mandatory-attendance AIDS prevention 

presentation, students were informed they were going to have a 

group sexual experience with audience participation; where profane, lewd, and lascivious language was used to describe body 

parts; and where oral sex, masturbation, homosexual sexual activity, and condom use during promiscuous premarital sex were advocated and approved? Few school districts provide opt-out options 

for parents, and even fewer schools inform parents as to when such 

controversial courses will be taught. In fact, the 1st Circuit’s ruling 

in Hot, Sexy and Safer Productions held that children have no 

right to be free from exposure to vulgar and offensive language or 

debasing portrayals of human sexuality. 

These issues provide merely a glimpse into the many areas 

where religious liberty faces problems in our country. In light of 

ever-changing discrimination laws and harassment policies, religious people continue to face a troublesome choice: violate deeply 

held religious beliefs, or receive punishment from the state and 

local officials. Undoubtedly, religious adherents will continue to 

face such dilemmas in the future. 

The courts and the judges that preside over them will obviously 

largely determine the outcome of America’s religious liberties. But 

the battle to maintain broad and robust religious liberties falls on 

each of us. In a speech to the military in 1789, President John 

Adams explained that the very nature of our constitutional government is being dependent upon religious and moral values. So I 

commend the Committee to read that quote which I provided in my 

statement to all of you. 

Now, look, undoubtedly religious liberty has been and always 

must be the crucial cornerstone upon which our freedoms rest. 

Without it, as President Adams warned in that speech, we are 

doomed. 

I thank the Subcommittee for a chance to participate in today’s 

hearing. I look forward to any questions or discussions we may 

have. Thank you. 

[The prepared statement of Mr. May follows:] 

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Mr. FRANKS. And I certainly thank all the witnesses. 

We will now begin with the questioning time, and I will recognize myself for 5 minutes, and I will begin with you, Bishop Lori, 

if I might. 

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lated to private social services are increasingly failing to make exceptions for sincerely held religious beliefs. 

What is the impact of that failure to make exception for religious 

beliefs having on the Church, especially as it relates to medical 

services and adoption and foster care? What, in practical terms, is 

it doing to you? 

Bishop LORI. Sure. Indeed, providing social services is integral to 

our mission. It flows from preaching the Gospel, celebrating the 

sacraments, and that is what sustains and motivates the work that 

we do. 

What is beginning to happen as the result of exemptions—for example, the HHS exemptions for private health insurance plans—is 

that we are worried that if those rules become enforced, we will be 

hindered in our ability to provide health insurance services for our 

employees. Also, in some states such as Massachusetts and Illinois, 

because of the convictions of Catholic Charities organizations about 

the nature of marriage, they have been driven out of adoption services and foster care services. I guess those would be kind of some 

of the examples I’d like to cite. 

Now, at the larger level, Catholic Relief Services has been denied 

a contract by USAID because of a newly added rule that it would 

have to provide access to so-called reproductive services in order to 

qualify. And so Catholic Relief Services, which has a splendid 

record of serving the poorest of the poor. The same with Migration 

and Refugee Services. They too are being driven out of, or not able 

to compete for, government contracts because of their convictions 

about human life and about contraception. And so, as a result, 

they’ve been taken off the playing field, if I could put it that way. 

That was not terribly articulate, but I hope you get the point. 

Mr. FRANKS. I get the point, absolutely. Thank you, Bishop, for 

all your good work, sir. 

Mr. May, if I might switch gears here a little, as you know, I am 

one of the co-chairs of the Religious Freedom Caucus here in the 

Congress. And, of course, as we look across the world, it is not just 

direct persecution of a particular faith, but sometimes the anti-discrimination laws in a particular area are used to keep someone 

from criticizing a religious perspective, and I certainly believe a 

person has a right to criticize my faith or to examine its veracity, 

and they do on a regular basis. 

So I want to ask you a question along those lines. It is a challenging question. But last week, the Daily Caller and others reported that certain Islamic religious groups met with the Department of Justice and recommended that there be cutbacks in antiterrorism funding, curbs on investigators and, for our purposes, ‘‘a 

legal declaration that U.S. citizens’ criticism of Islam constitutes 

racial discrimination.’’ 

Now, Mr. Tom Perez, the head of the Civil Rights Division, said, 

‘‘We must continue to have this critical dialogue.’’ He said in another place, ‘‘I sat there the entire time taking notes and I have 

some concrete thoughts in the aftermath of this.’’ 

My concern is it sounds like the first steps in implementing blasphemy laws, as you see in India and other places, where if someone 

expresses a different faith perspective, that it is called blasphemy, 

and something in this country has fought against, obviously, all 

110 

over the world, with the exception, of course, in this case of Mr. 

Obama’s sponsorship of a resolution at the United Nations with a 

member of the Organization of Islamic Conference, which urged exactly these kinds of anti-free speech measures. 

So my question is this: Does the First Amendment permit our 

government to abridge the free speech rights of everyone by permitting a blasphemy law that is the banning of all speech critical 

to a particular religion, and why or why not? What are the implications? 

Mr. MAY. Yeah, I think the answer’s pretty simple, no. And, in 

fact, I’d be shocked if the Department of Justice held a different 

point of view. If they did, I think they probably ought to be before 

this Committee to explain that particular point of view. 

Let’s not overlook the obvious. It seems to me that when people 

come together in their religious communities, it is an affirmation 

of positive things, worthwhile things for society. It is also true that 

those communities believe that some things are better than others, 

and when they articulate that they believe, for example, that all 

are created in the image of God and all are worthy of his love and 

respect, including women in that context, you’ve got to wonder 

where a proposal where you equate, if I heard you right, the criticism of Islam is equal to racial discrimination? 

Mr. FRANKS. Asking—let me repeat the quote, ‘‘a legal declaration that U.S. citizens’ criticism of Islam constitutes racial discrimination.’’ They are asking the Department of Justice for this. 

Mr. MAY. Yeah. I mean, it’s rather shocking that that could be 

the kind of proposal in the face of our First Amendment because, 

remember, there is discussion all the time among diverse groups in 

America. That’s known as pluralism, and it’s actually a very 

healthy and a good thing. Sometimes it gets a little robust. Sometimes maybe there’s smoke rather than light. But the reality is 

that’s what we need the First Amendment for, to be able to figure 

out ways to be able to work together and build a consensus that 

makes the kind of country we have today. 

Mr. FRANKS. Well, obviously, if we ban critical speech of any religion, then wouldn’t that law, by definition, muzzle the proponents 

of all other religions whose basic tenets may be in conflict with 

that religion? It is one of those things where free speech sometimes 

requires that people like me that have a religious faith are going 

to have that faith challenged. 

With that, I am out of time. It always gets away quicker than 

I like. I would like to now yield to the Ranking Member for 5 minutes. 

Mr. NADLER. I thank the Chairman for yielding. 

Bishop Lori, 2 years ago, a justice of the peace in Louisiana refused to marry an interracial couple. When he resigned he said, ‘‘I 

would probably do the same thing again. I found out I can’t be a 

justice of the peace and have a conscience.’’ Do you support his 

right to do that and keep his job, to refuse to marry an interracial 

couple? 

Bishop LORI. I believe that first of all, we have to make a very 

careful distinction between same-sex marriage, which is based 

upon the difference of—— 

Mr. NADLER. We will get to that in a minute. 

111 

Bishop LORI. All right. 

Mr. NADLER. Let me just—answer the first question first, please. 

Bishop LORI. All right. The answer is no. I believe that marriage 

between people of two different races is an entirely different matter 

than same-sex marriage, and so I would—— 

Mr. NADLER. But you would say that the state has the right to 

expect its employees to enforce its law, which says that interracial 

couples may marry by issuing a license? 

Bishop LORI. I would say, in the case of interracial marriage, yes. 

Mr. NADLER. Yes. Okay. Now let me get to the second half. 

Bishop LORI. All right. 

Mr. NADLER. Why, then, given what you just said, is it not legitimate for public employers to require their employees to fulfill their 

job duties in other contexts, including providing a license to a 

same-sex couple if the law of the state or the jurisdiction provides 

for marriages of same-sex couples? 

Bishop LORI. For example, in the State of New York, there are 

county clerks I know that are getting penalized for their refusal to 

go along with this. 

Marriage is a unique relationship. It takes a man and a woman. 

That is what a lot of people, a lot of Americans believe, what a lot 

of people of faith and reason believe. It is a unique relationship of 

husband and wife, the only relationship capable of producing children. 

Mr. NADLER. Okay. But that—— 

Bishop LORI. We believe that—— 

Mr. NADLER. I am not going to—I have a very limited amount 

of time. We understand that view. We have heard it many times. 

Bishop LORI. Okay. It is, then, a religious conviction. 

Mr. NADLER. Yes. 

Bishop LORI. And it is very troubling when this religious conviction—— 

Mr. NADLER. But the question is—— 

Bishop LORI [continuing]. Born of faith and reason is portrayed 

as bigotry. 

Mr. NADLER. I am not portraying it as bigotry. I am not suggesting that. I haven’t mentioned the word. I am asking a different 

question. 

People have various different religions. You stated that it is the 

right, in your opinion, of the state, having passed a law that allows 

interracial marriages, to say that the religious belief or the conscientious belief of a state employee cannot trump that, that either 

he issues a license or he can’t hold that job, and that is a legitimate thing for the state to do. 

The question is, given that, why does the same reasoning not 

hold with respect to a county clerk or whatever, with respect to 

same-sex marriage? We understand that he has a religious belief 

which I am not going to debate the validity of, obviously. It is his 

religious belief. He is entitled to it, and it is protected, but it prevents him from doing a ministerial duty which the state has requires him to perform. Why is that situation different from the first 

situation, other than someone’s opinion as to the validity of one religious belief and not the other? 

112 

Bishop LORI. Well, by asking the question as you did, I think 

you’re drawing a parallel between racial discrimination and samegender marriage, so-called marriage. 

Mr. NADLER. Well, no, I am not drawing a parallel. The State of 

New York or some other state made a decision. Why is it religious 

discrimination to hold its employee in one case—— 

Bishop LORI. We believe religious liberty is an individual right 

and that a person has a right to bring his religious convictions into 

the workplace, and that he has a right not only to believe them privately but also to act upon them, and that religious conviction 

should be broadly accommodated. 

Mr. NADLER. But then why can that person not refuse to perform 

the interracial marriage if that is his religious belief? 

Bishop LORI. Because marriage, the relationship between a man 

and a woman, is different—— 

Mr. NADLER. All right. So, in other words, because one religious 

belief—— 

Bishop LORI [continuing]. Is different than relationship of a man 

and a woman who happen to be of different races. 

Mr. NADLER. Thank you. In other words, because one religious 

belief is more valid than the other is what you are saying. 

Let me ask you this. Does an insurance company, a for-profit entity incorporated for the purpose of engaging in commerce, have the 

same religious liberty right as a not-for-profit religion? 

Bishop LORI. I think that an insurance company that wishes to 

serve entities that have reservations about what should be covered 

in its health care plans ought to be accommodated. 

Mr. NADLER. All right. Let me ask you—my time is running out. 

I have one question for Reverend Lynn. You are an ordained minister who is obviously committed to religious liberty and free exercise. You are also an attorney with expertise in constitutional law. 

Tell me why you oppose allowing a religious organization to apply 

religious criteria to Federally-funded jobs and why you think this 

is a threat to religious liberty, please. 

Reverend LYNN. I think it’s a threat, Congressman Nadler, because once you enter into a relationship where the government 

funds your religious ministry, that in that part of the ministry that 

is funded by tax dollars, there cannot be an assumption that, or a 

policy that, dictates that those persons are exempt from other civil 

rights statutes. 

When you get the money from the Federal or state government, 

then I think you’re obligated to follow the precepts not of your own 

denomination or your own faith community but the requirements 

of, in most instances, Federal law, which does not permit discrimination based on religion, creed, color, and several other well-known 

factors. 

So I see this as not in any way inhibiting the power of ministries 

to do what they want to do with their own dollars, with the money 

that they collect in the collection plate. But I think the equation 

changes dramatically when Federal funds enter the picture. You 

cannot simply then say I’ll take the money but I won’t take any restrictions, I won’t take any adherence to the core civil rights principles of our country. That is a stretch of anyone’s imagination to 

find that as a matter of religious freedom. That’s pure and simple 

113 

discrimination with the tax dollars that come from all of us, including some of those job applicants, for example, who may fall outside 

of the favored community from which they choose to hire. 

Mr. NADLER. I thank you. My time has expired. I yield back. 

Mr. FRANKS. I thank the gentleman. 

And I now recognize the gentleman from Iowa, Mr. King, for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I thank all the witnesses for your testimony. 

And I would first remark what goes through my mind when I 

hear the advocacy from the gentleman from New York about conscience protection, and I would think that if it is the position of 

anybody in this country that one would be compelled to carry out 

a marriage of same-sex couples if that violates your religious convictions, if it violates a sacrament of the church, for example, or if 

one is compelled as a pharmacist to distribute birth control against 

one’s religious beliefs, if that is the position, and I am hearing that 

position consistently in this Committee, then I would suggest that 

when you put the shoe on the other foot, if you have a prison warden whose job it is to carry out an execution, would the advocates 

for the elimination of conscience protection also argue that that 

prison warden should be compelled to carry out the execution if it 

violated his conscience? And I would turn that question to Bishop 

Lori. 

Bishop LORI. I would agree with your observation, Congressman. 

It seems to me that conscience protection has always been a part 

of our way of life. The idea is that because one works for the government, one has to check one’s conscience at the door, whether 

those are conscientious objections to abortion or to same-sex marriage or to capital punishment, or even the service of the undocumented. It seems to me that these things have always been broadly 

accommodated and they should continue to be broadly accommodated. That’s one of the things that has made our country great. 

To paint conscientious objections to things like abortion or contraception or same-sex marriage as discriminatory really flies in 

the face of what religious liberty is. It means the right to bring our 

convictions into the public square, a right to act upon them, a right 

not to be compelled to do things which we consider to be inherently 

wrong. And anybody in a repressive society can believe what he 

wants privately, but in a free society you can bring your convictions 

out into public. 

Mr. KING. Bishop, if an individual or a group of individuals actively engaged in or promoted the idea of desecrating the eucharist, 

would that be a direct affront to the church? 

Bishop LORI. It would indeed, of the most serious nature. 

Mr. KING. And of the sacraments of the church, would you name 

the seven sacraments first, please? 

Bishop LORI. Sure. Just like my confirmation classes. Baptism, 

confirmation, eucharist, penance, anointing of the sick, marriage, 

and holy orders. 

Mr. KING. And you learned it as last rites and had to change 

that—— 

Bishop LORI. Yes, and it used to be called extreme unction. It’s 

called—— 

114 

Mr. KING. Even further back. I just wanted to make that point, 

that when there is an active effort to desecrate a sacrament of the 

church, that is a direct insult and affront to the Catholic Church. 

Bishop LORI. Absolutely. 

Mr. KING. And marriage, of course, clearly is one of the seven 

sacraments—— 

Bishop LORI. Marriage is recognized as a sacrament. First of all, 

it’s recognized as something of a natural relationship, inscribed in 

our nature by the Creator, that has served the common good and 

is a pillar of civilization. It’s a unique relationship of a man and 

woman. The Church has also recognized it as a sacrament because 

the love of husband and wife expresses the love of Christ for the 

Church. 

Mr. KING. Let’s explore another principle, and that is as I am 

hearing this blurred approach to the implication that civil rights 

extend to same-sex marriage, for example, and I would like to explore a little bit the concept of immutable characteristics that were 

the foundation of the Title VII of the Civil Rights Act. These are 

the protection for race, color, religion, sex, national origin, religion 

being the only one of those in the list that is specifically constitutionally protected. The balance of them are immutable characteristics that can be independently identified and cannot be willfully 

changed. 

When we go beyond the definition of immutable characteristics, 

then could you talk to us a little bit about what that does to this 

concept of civil rights and equal protection? 

Bishop LORI. Sure. It seems to me that when you take an institution such as marriage and you redefine it arbitrarily, then you are 

taking something that is not only long established but unique and 

for the common good of society, and you are cutting it loose from 

its moorings. Marriage is not simply—it’s not as if you could make 

one change and that is it. The notion of what marriage is appears 

throughout Federal law. It appears in state law. It appears in regulations. It affects how church and state relate in a broad variety 

of ways, and by arbitrarily redefining it, you’re cueing up church/ 

state conflict for years to come, because marriage is so broadly referred to throughout American law. 

Mr. KING. Thank you, Bishop. I thank all the witnesses. I regret 

I was not able to ask questions of the balance of the panel and I 

yield back. 

Mr. FRANKS. Thank you, Mr. King. 

Mr. Quigley, you are now recognized for 5 minutes, sir. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Bishop, I respect and truly appreciate your—and the term you 

used was ‘‘religious conviction.’’ You can recognize the same sort of 

religious conviction worked the other way for a long time. I mean, 

it wasn’t until the ’60’s that the Loving case was decided about 

interracial marriage in the United States. And for, let’s just say, 

a chaplain in the military whose religious beliefs are different, and 

they have the same religious conviction you have, that a same-sex 

marriage is part of their faith, don’t you see the similarities? Don’t 

you see that their passion and their beliefs, however strongly you 

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ple’’ were the actual words you used—believe this is what marriage 

is, but that is not what the Constitution protects. The whole point 

of the Constitution was to protect minorities, those who disagree. 

I don’t think you need to protect popular belief. 

Don’t you respect their faith, their religion, that they believe that 

this is the right thing to do? Inasmuch as you want me to protect 

those who can say no to marrying a same-sex couple, don’t you 

want to defend those who have the opposite belief? I know you 

can’t put aside your faith and your position, but if you are in this 

seat, don’t you understand that difference? 

Bishop LORI. I respect individuals, and I respect their dignity, 

and I certainly assume good will. At the same time, one of the primary reasons why the state has an interest in marriage is because 

of its contribution to the common good. It’s unique. In other words, 

I respect individuals who might hold a differing view, but I would 

also maintain stoutly as a matter of faith and reason that marriage 

is something not subject to redefinition. 

It is a unique relationship of a man and a woman, the only one 

capable of producing children, and there is a great interest on the 

part of the state in stable homes where children learn to relate to 

male and female role models and are invested with the virtues of 

citizenship. And I would also recognize that marriage, as understood as a man and a woman, is an essential building block for the 

Church as well. It’s always been recognized as the fundamental—— 

Mr. QUIGLEY. Well, look, I respect we will have that difference. 

I apologize because we have the time limit situation. 

Bishop LORI. All right. 

Mr. QUIGLEY. Same-sex couples I know are in long-term relationships. They love their kids. They are also involved with the orderly 

distribution of property, which has a lot to do with marriage, and 

we still allow sterile couples to get married, and they can’t have 

kids. 

But aside from that, we talk a lot too about Islam. It was interesting that the first aspect of that had to do with laws equating 

criticizing Islam with bigotry. But I want to ask all three of you, 

if you have time, what would you say to young Muslims in America, in a country where, unfortunately, I think the number is about 

30 percent of the American public doesn’t think Muslims should be 

able to become president of the United States, the last surveys I 

saw, and that they should have to wear identification, and that 

their hate crimes are wildly high, disproportionate to their population. Respecting their faith, Bishop, if you were us, what would 

you say to those people? 

Bishop LORI. Well, the Roman Catholic Church nationally and 

internationally conducts dialogues with the Muslim community and 

its inter-religious relationships seek to promote understanding and 

peace and respect for various religions and cultures. It would not 

condone any use of religion to promote violence, as sometimes happens, but that would be true across the board. 

Mr. QUIGLEY. Reverend May, Mr. May—I’m sorry. Mr. May, 

what would you say to young Muslims who are experiencing this 

in our country? 

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Mr. MAY. I would tell them work hard, become president of the 

United States. There’s no reason you can’t otherwise do so. Certainly, discrimination in the senses of—— 

Mr. QUIGLEY. Do you feel bad for them? Do you want to apologize 

for what they are going through, kids who are abused because of 

their hair coverings or denied jobs? 

Mr. MAY. Well, I suppose if you’d be willing or others would be 

willing to apologize for the kind of affront that goes on to religious 

values in the public schools, Hot, Safer and Sexy. I mean, we’re 

going to do this sort of like let’s teach kids how to do these things, 

that’s otherwise—— 

Mr. QUIGLEY. I am certainly not suggesting that two wrongs 

make a right, if you’re equating that—— 

Mr. MAY. Oh, no, no. But in response to your question—— 

Mr. QUIGLEY. What do you say to American Muslim children who 

face discrimination? Do you apologize to them? 

Mr. MAY. Sorry. We were talking a little bit—— 

Mr. QUIGLEY. I’m sorry. I apologize. Do you apologize to anybody 

whose faith, they are being discriminated against because of their 

faith? 

Mr. MAY. If they’re, in fact, being discriminated by the government, absolutely. We abhor that. 

Mr. QUIGLEY. How about by anybody? 

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

Mr. MAY. Well, it depends on what you mean by discrimination, 

because the idea that people are different is not a form of discrimination. But certainly I think everybody should be treated with dignity and respect and kindness. That’s exactly the way I think we 

get along and make a better world. 

Mr. FRANKS. The gentleman from Ohio, Mr. Chabot, is now recognized for 5 minutes. 

Mr. CHABOT. Yeah, I am going to give half of my 5 minutes to 

Mr. Jordan because I know we have got votes on the floor here, I 

believe. Is that right? Or no? All right. Excellent. I will still give 

you half of it. 

All right. You know, some interesting points made down there, 

and certainly everybody, all religions, ought to be treated appropriately here in the United States. And as Chairman of the Middle 

East and South Asia Committee, I would make the point that if 

there are any apologies that are owed, perhaps the way the Coptics 

are being treated in Egypt right now on this very day, Coptic 

Christians, it is unbelievable what is happening over there, and the 

world has virtually ignored it. 

Bishop Lori, you had mentioned about conscientious objection, 

and it certainly brought to mind that we allow people who conscientiously object to war to not have to go over and fight in the 

battles of this country as long as they object to all wars, and that 

has been ingrained in the way we do business in this country for 

a long, long time. 

Mr. May, let me ask you quickly. In your written testimony you 

discuss university speech codes and the threat they pose to religious groups on college campuses. Have university speech codes 

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tion to actually discriminating against religious students and religious student groups? And if so, do you have any examples of that? 

Mr. MAY. Sure. The 9th Circuit reached a decision called Truth 

v.—I can’t remember the school district’s name now, but a school 

district. And that would essentially disqualify a religious club simply because they used the word ‘‘truth.’’ It was felt that using the 

word ‘‘truth’’ in the context of this Christian club would offend all 

of the other student groups, and therefore they couldn’t have it. 

There wasn’t any further explanation than the idea of affront or 

this lack of communalism, if you will. And so the 9th Circuit said, 

well, that’s perfectly appropriate because their job is to make sure 

that the environment is as free as possible of harassment. 

Mr. CHABOT. Thank you. And Bishop Lori, I know you got into 

your arguments relative to marriage with Mr. Nadler over there, 

and he sort of cut you off, not that he intended to cut you off but 

he only had a limited amount of time. He would never cut anybody 

off. But did you need any additional time to advise us on that? 

Bishop LORI. I think I’d simply just like to make it clear that 

support for traditional marriage between a man and a woman has 

nothing to do with, has no resemblance to, racial discrimination, 

and it is a great injustice to people who believe in traditional marriage as a matter of faith and reason to paint it as such. That’s exactly what the Department of Justice has done in its attack on 

DOMA. 

What we are finding, then, is that those convictions about marriage are beginning to creep into regs, bureaucratic regs, and these 

things are beginning to hamper our ability to function and to serve. 

And I think that at the very least, the Church as individual people 

and churches that believe in traditional marriage should be very 

broadly accommodated. But I also believe that for the common good 

of our country, we would do well to support traditional marriage, 

and the stronger these traditional homes are, the more social problems we cut off at the pass. 

There are a lot of data that children in homes of divorced and 

single-parent homes have a lot of problems, and that one of the 

best things we can do for our kids is to give them a stable home 

with a mom and a dad. That does not disrespect anybody. It just 

goes to the unique nature of what marriage always has been and 

always will be. 

Mr. CHABOT. Thank you very much, Bishop. 

I will yield, although it is not a lot of time, Jim. 

Mr. FRANKS. The gentleman is recognized. 

Mr. JORDAN. If we go to the other side and back—— 

Mr. FRANKS. Certainly. 

Mr. JORDAN [continuing]. We may have enough time. 

Mr. FRANKS. Certainly, certainly. 

Mr. JORDAN. Thank you. I will yield back to my colleague if he 

wants his remaining time. 

Mr. FRANKS. Recognize—— 

Mr. CHABOT. Okay, I will yield back. 

Mr. FRANKS. Recognize Mr. Scott for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Bishop Lori, I am not sure I quite understood. I am from Virginia, where traditional marriage was same-race marriage until 

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those lifetime-appointed liberal activist Federal judges violated the 

will of the people and said that you couldn’t do that anymore, you 

had to allow different-race marriages. 

Now, we redefined marriage at that point. Was that a bad thing? 

Bishop LORI. You did not redefine marriage. You simply recognized the natural right of a man and a woman who happened to 

be of two different races to marry. 

Mr. SCOTT. There was some very devoutly religious people that 

felt that traditional marriage did not include mixed-race marriages. 

Bishop LORI. Yes, but it was not a redefinition of marriage. 

Mr. SCOTT. Reverend Lynn, was that a redefinition of marriage? 

Reverend LYNN. That was a redefinition of marriage, and it could 

happen again. And as we talk about marriage, I find myself in an 

interesting position. People talk about these theories. I am an ordained minister in the United Church of Christ, and Mr. King, we 

only have two sacraments. That would be communion and baptism. 

We have three, and matrimony. 

As a United Church of Christ minister, I cannot perform marriages that I happen to want to perform. I have a list of people, 

literally, who would love to have me perform their weddings, but 

they can’t because state law prohibits that. They cannot be married. 

I think a redefinition of this would, among other things, allow 

the clergy, like myself, of whom there are many in this country 

who would like to and feel it important to perform same-sex marriages, we would finally have the right to do so. 

So my conscience is violated when I am denied by the power of 

the state to perform the very marriages that people want in order 

to form the kind of unity, and families with adopted children in 

many instances, that do serve this community and this country 

very well. 

Mr. SCOTT. Now, Reverend Lynn, if the congregation gets together and raises money to advance their religion, would employment discrimination in favor of people of their religion that understand the religion that they are trying to advance, does employment discrimination based on religion make sense? 

Reverend LYNN. Yeah, I would oppose the idea. I believe that you 

hire the best people for the job that you’re seeking to hire for. But 

on the other hand, if this is all private money, if this is the money 

from the collection plate, I think the courts are pretty clear they 

can then hire in many, if not all, positions for—on the basis of religion. The calculus changes when it comes to cash coming from all 

the taxpayers. 

Mr. SCOTT. And if they are using it for congregational purposes 

to advance their religion, it makes sense that people would understand the religion they are trying to advance. How does the calculation change if you are using Federal money? 

Reverend LYNN. Well, because I think that the great strength of 

American religion is that it has been voluntary. We depend upon 

the contributions that are made by like-minded people. We have 

not until recently assumed that we deserve as churches or religious 

institutions to somehow go to the same trough to receive Federal 

money that some other organization does. 

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I think the great strength of religion in this country is that it 

does seek its funding from private sources. When it goes to the government and asks for its dollars, then I think collateral to it is a 

recognition that it must obey its laws, including its civil rights 

standards, which oppose making decisions in employment based on 

religion. 

Mr. SCOTT. And if a devoutly religious businessman wanted to 

discriminate, why should he not be able to discriminate in violation 

of civil rights laws with his personal money? 

Reverend LYNN. Well, I think, first of all, he can make contributions to anybody, including entities that might discriminate someplace down the road. But I think this whole idea of individuals 

being able to exercise their religious conscience on third parties is 

a very dangerous trap. That’s why I don’t think we should be talking about the so-called ‘‘right of conscience’’ of receptionists in a 

hospital to refuse to schedule someone to have an abortion, even 

if he or she doesn’t approve of it. I think that pharmacies should 

not allow every pharmacist to decide they will not dispense certain 

drugs which may or may not be used, as the Bishop mentioned, as 

abortifacients, which is the way to characterize almost all contraception, as abortion-inducing, expanding the exemptions that already exist in law. 

So I think it’s a dangerous track, Congressman Scott, to go down 

to assume that judgments based on religion can be made by individuals, any individual who claims I have a religious basis for 

doing so. We have to be very careful about that standard. 

Mr. FRANKS. And I thank the gentleman. 

And I now recognize the gentleman from Ohio, Mr. Jordan. 

Mr. JORDAN. Thank you, and I apologize—I walked in late—if 

this question has already been asked. But Mr. May, what is the 

biggest current threat to religious freedom in the country? Is it 

speech codes? Is it employment law? Is it employment discrimination? Is it the redefining of marriage? What would you say, if you 

had to rank order, which is the most important? Which is the biggest threat? 

Mr. MAY. Well, obviously it’s a wide horizon, I’m sorry to say, but 

I think the first is in the area of conscience, and I think it is something that is so important that it’s been not only respected at times 

of war in our country when soldiers can’t move forward and in contravention of their faith kill, as it were, we respect it there, and 

yet we somehow don’t want to do so when we find individuals in 

other circumstances that present the exact same kind of moral dilemma for them. 

I also think that it is in the context of what we do as a society 

about same-sex marriage. I mean, there are almost 40 states in 

this country already have constitutional amendments or laws essentially defining marriage and limiting it because of the benefits 

of that specific kind of marriage, one man, one woman, and the 

hope of children. It’s good for society, it’s good for ordered liberty, 

it’s good for freedom. That’s why states recognize it. And if we turn 

it on its head and now say these 40 states are engaging in a kind 

of discrimination, it really misses the point. 

Mr. JORDAN. Let me pick up right where you were there. Is it 

true that some organizations are now defining groups who want to 

120 

make sure marriage remains what marriage has always been, want 

to define those groups as hate groups? Is that happening out there 

right now? 

Mr. MAY. Oh, absolutely. 

Mr. JORDAN. And can you give me some specific organizations 

who are now saying if you want to keep marriage the way marriage 

has always been, somehow you are a hate group? 

Mr. MAY. Well, I think that the Catholic Church is probably the 

first example of being criticized for it. But groups like the American Civil Liberties Union, for example. I’d have to ask Barry 

whether or not his group has taken that point of view. But the stridency of the very idea—— 

Mr. JORDAN. I have been told the Southern Poverty Law Center 

has said the same thing. And when they do that, would you argue 

that that is a chilling effect on religious expression? 

Mr. MAY. Oh, without question, because what it does is it essentially, it cuts off any kind of dialogue. I mean, we care about in this 

country discrimination that’s invidious. The idea is to say you can’t 

do this because of who you are or what you represent, not the idea 

that we segregate ourselves because of the values and the morals 

that we hold, and certainly religious expression is the first among 

them. 

Mr. JORDAN. Let me ask you about one other idea, and then I 

know we have got to go vote. But one other question: In our state, 

back when I first got involved in public service, we actually passed 

a school choice law, and we said, in the City of Cleveland, that we 

would allow kids, at that time kindergarten through 2nd grade, to 

get a scholarship. It was amazing. It was worth $2,000, and we 

were spending at the time in Cleveland Public Schools about 

$7,000 per pupil, and we allowed kids to get that scholarship to go 

to the school that their parents thought they would get the best 

education. The vast majority, almost all of them, went to Catholic 

schools in the Greater Cleveland area. It was challenged, as you 

would expect, every step, every court, state-level court, Federallevel court. It went all the way up, and it was challenged on the 

Establishment Clause. It was ultimately held to be constitutional. 

Now, I just want your thoughts on it. Do you think that that 

school choice program, as the courts did, meets the Establishment 

Clause requirements, and is something that would be—something 

that is constitutional? 

Mr. MAY. Well, yes. I think the Supreme Court got it right 10 

years ago when it evaluated the case and upheld it, recognizing 

that, look, if we go through a Lemon type of evaluation, we’ll recognize first off that this is to accomplish a secular purpose. The secular purpose is to provide the best education possible. 

The second is we’re not intending this to otherwise advantage 

faith over non-faith. It’s rather send your kid where they can learn 

the ABC’s and how to add, et cetera. 

And last, it doesn’t otherwise invite the entanglement of the government into the decisions that parents are making for their children. 

So I think that voucher cases in that context make perfect sense 

and are constitutionally protected. 

121 

Mr. JORDAN. I think it is always interesting to point out that specific situation. 

Reverend LYNN. If the Congressman would—— 

Mr. JORDAN. Just 1 second. The initial sign-up day, there were 2,000 spots worth $2,150, and again they were having spent on 

them in the Cleveland Public Schools approximately $7,000. But 

thousands of parents, much more than the available spots, lined up 

to get a chance to get one of those scholarships and get some freedom to get to a school where they could get an education. I mean, 

the power of that I think is—that example is just pretty powerful. 

Mr. Lynn, I have got a few seconds, but go ahead. 

Reverend LYNN. Yeah. I just—it’s kind of like a Mitt RomneyRick Perry moment. I have to say we don’t make lists of hate 

groups. We’re not involved in that whatsoever. 

Mr. MAY. I’m glad to hear that. 

Reverend LYNN. And I’m—but I am really shocked by some of the 

comments that my friend, Colby May, has made. We’ve had many 

debates over the years. Of all the things that have come up today, 

in my testimony I talked about the ACLJ’s opposition, filing a lawsuit to stop the construction of a mosque on property owned by 

this—it’s actually a community center, owned by a Muslim group 

in New York City. I thought we passed the Religious Land Use Act, 

among other things, to make sure that we couldn’t overstate, for 

example, historical significance and use that to trump the construction of property to be used for a religious purpose. But when Mr. 

May and his group filed a lawsuit, I truly was shocked. I mean, I 

usually don’t agree with him, but I was shocked by this one because it seems to be so inconsistent with his whole rhetoric of we 

believe in religious freedom for everyone, we support everybody’s 

right. Apparently not if you’re a Muslim in New York. 

Mr. FRANKS. Mr. May, would you like to respond? 

Mr. MAY. Oh, yes, sir, I would. I’ll direct my comments to the 

Committee because I know I’m not supposed to direct it to a fellow 

witness. But the reality is that I wish Barry would get it right, and 

he just doesn’t seem willing to do so, and I don’t know if it’s purposeful on his part or not. 

But our case in New York, Brown v. The Landmark Preservation 

Commission, does not involve the Religious Land Use Institutionalized Persons Act. He should know that. 

What we are talking about is whether or not, under the unique 

circumstances of Ground Zero, this particular facility should be 

designated as a monument to the 9/11 catastrophe. And, in fact, 

the people that are involved were first responders. Mr. Brown was 

a first responder, and he is very passionate about making sure that 

we don’t forget and that, in fact, those buildings that are in the 

area can otherwise be properly landmarked and kept as such. 

We have never argued that the current mosque activity that goes 

on there should be stopped under any circumstances. It is rather 

to determine whether or not, in the unique circumstances here, this 

should be a landmark. It is not about religion. He knows it, and 

why he continues to say that baffles me. 

Mr. FRANKS. Well, it sounds like you are going to get the last 

word here today, Mr. May. And I want to thank all of the people 

who attended, and all of the witnesses, and all of the Members 

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here. The subject is one of profound consequence. Nearly every law 

that we have is based on some religious precept, so we had better 

get it right. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond to as 

promptly as they can so that their answers may be made part of 

the record. 

Without objection, all Members will also have 5 legislative days 

with which to submit any additional materials for inclusion in the 

record. 

And with that, again, I thank the witnesses, and I thank the 

Members and observers, and this hearing is now adjourned. 

[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Response to Post-Hearing Questions from William C. Lori, 

Bishop of Bridgeport, CT 


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Letter from John C. Hagee, Cornerstone Church 


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Letter from Rajdeep Singh, Director of Law and Policy, The Sikh Coalition 


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Prepared Statement of Rev. Dr. C. Weldon Gaddy, 

President of Interfaith Alliance 


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Prepared Statement of Suhag A. Shukla, Esq., Managing Director/Legal 

Counsel; Samir Kalra, Esq., Director and Senior Fellow, Human Rights; 

and Nikhil Joshi, Esq., Member, Board of Directors, the Hindu American 

Foundation 


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Prepared Statement of Joe Solmonese, President, Human Rights Campaign 


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Prepared Statement of Marc D. Stern, Esq., Associate General Counsel for 

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Letter from Paul J. Kurtz, Chairperson, and Normal Allen, Jr., Director of 

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Letter from Jon O’Brien, President, Catholics for Choice 


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Letter from the Most Reverend Timothy M. Dolan, Archbishop of New York 


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Article titled ‘‘Battle flare between White House. Catholic Groups,’’ 

by Jerry Markon, The Washington Post 


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