S. HRG. 106-689 RELIGIOUS LIBERTY HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS FIRST SESSION ON ISSUES RELATING TO RELIGIOUS LIBERTY PROTECTION, AND FOCUS­ ING ON THE CONSTITUTIONALITY OF A RELIGIOUS PROTECTION MEASURE JUNE 23, AND SEPTEMBER 9, 1999 Serial No. J-106-35 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 67-066 CC WASHINGTON : 2000 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware JON KYL, Arizona HERBERT KOHL, Wisconsin MIKE DEWINE, Ohio DIANNE FEINSTEIN, California JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York BOB SMITH, New Hampshire MANUS COONEY, Chief Counsel and Staff Director BRUCE A. COHEN, Minority Chief Counsel (II) CONTENTS STATEMENTS OF COMMITTEE MEMBERS Page Hatch, Hon. Orrin G., U.S. Senator from the State of Utah 1, 65 Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina 19 Kennedy, Hon. Edward M., U.S. Senator from the State of Massachusetts 20, 70 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont 27, 67 Feingold, Hon. Russell D., U.S. Senator from the State of Wisconsin 27, 70 CHRONOLOGICAL LIST OF WITNESSES JUNE 23, 1999 Panel consisting of Steven T. McFarland, Center For Law and Religious Freedom, Christian Legal Society, Annandale, VA; Nathan J. Diament, director, Institute For Public Affairs, Union of Orthodox Jewish Congrega­ tions of America, Washington, DC; Manuel A. Miranda, president, Cardinal Newman Society For Catholic Higher Education, Washington, DC; Elliot M. Mincberg, vice president and legal director, People For The American Way, Washington, DC; Michael P. Farris, president, Home School Legal Defense Association, Purcellville, VA; Christopher E. Anders, legislative counsel, American Civil Liberties Union, Washington, DC; and Scott Hochburg, Texas State Representative, Houston, TX 4 SEPTEMBER 9, 1999 Panel consisting of Douglas Laycock, Alice McKean Young Regents Chair In Law, University of Texas School of Law, Austin, TX; Chai R. Feldblum, Professor of Law, Georgetown University Law Center, Washington, DC; Jay S. Bybee, Professor of Law, University of Nevada, Las Vegas, Las Vegas, NV; and Gene C. Schaerr, co-chair, Religious Institutions Practice Group, Sidley and Austin, Washington, DC 72 ALPHABETICAL LIST AND MATERIALS SUBMITTED Anders, Christopher E.: Testimony 41 Prepared statement 43 Bybee, Jay S.: Testimony 112 Prepared statement 114 Diament, Nathan J.: Testimony 21 Prepared statement 24 Farris, Michael P.: Testimony 36 Prepared statement 38 Feldblum, Chai R.: Testimony 102 Prepared statement 104 Hochburg, Hon. Scott: Testimony 51 Prepared statement 52 Laycock, Douglas: Testimony 72 Prepared statement 74 (III) IV Page McFarland, Steven T.: Testimony 4 Prepared statement 7 Mincberg, Elliot M.: Testimony 33 Prepared statement 35 Miranda, Manuel A.: Testimony 28 Prepared statement 31 Schaerr, Gene C: Testimony 121 Prepared statement 123 APPENDIX QUESTIONS AND ANSWERS SEPTEMBER 9, 1999 Responses of Douglas Laycock to Questions From Senators: Hatch 143 Leahy 146 Kennedy 153 Feingold 156 Responses of Chai R. Feldblum to Questions From Senators: Hatch 159 Leahy 161 Kennedy 162 Feingold 164 Responses of Jay S. Bybee to Questions From Senator Hatch 164 Responses of Gene C. Schaerr to Questions From Senators: Hatch 167 Feingold 171 ADDITIONAL SUBMISSIONS FOR THE RECORD JUNE 23, 1999 Prepared statement of: Hon. Irene B. French, Mayor of Merriam, Kansas 173 Glenn S. Goord, Commissioner of the New York State Department of Correctional Services 174 Larry E. Naake on Behalf of the National Association of Counties 180 Oliver S. Thomas on Behalf of the National Council of Churches of Christ in the USA 181 Letter to Hon. Henry J. Hyde, from Joel J. Alpert, MD, FAAP, president, American Academy of Pediatrics, Washington, DC, dated June 22, 1999 183 Letter to Hon. Orrin G. Hatch, from Janis Guerney, assistant director, Amer­ ican Academy of Pediatrics, Washington, DC, dated June 25, 1999 183 SEPTEMBER 9, 1999 Prepared statement of: Robert J. Bruno, Attorney at Law, Burnsville, Minnesota 184 Marci A. Hamilton, Distinguished Visiting Professor of Law, Emory Uni­ versity School of Law, Atlanta, GA 188 Barbara Bennett Woodhouse on Behalf of the Center for Children's Policy Practice and Research 192 Ms. Ellen Johnson on Behalf of the American Atheists, Inc 197 Letter to: Senators Hatch and Leahy, from various Civil Rights Organizations, dated Sept. 9, 1999 199 Senator Leahy, from National Child Abuse Coalition, Washington, DC, dated Sept. 8, 1999 201 Senators Hatch and Leahy, from Elizabeth Bobo, House of Delegates, Annap­ olis, MD, dated Sept. 9, 1999 202 RELIGIOUS LIBERTY WEDNESDAY, JUNE 23, 1999 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 11:03 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Thurmond, Grassley, Specter, Leahy, Kennedy, and Feingold. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The CHAIRMAN. We are happy to welcome you all out to our reli­ gious liberty hearing today. Good morning, we welcome all of you here, good to see you. We are pleased to have seven impressive wit­ nesses, whom I shall introduce in short order. As we begin this hearing, it is worth pondering just why America is, worldwide, the most successful multi-faith country in all re- corded history. The answer is to be found, I submit, in both compo­ nents of the phrase "religious liberty." Surely, it is because of our country's and our Constitution's zeal­ ous protection of liberty that so many religions have flourished and that so many faiths have worshipped on our soil. But liberty with- out the type of virtue instilled by religion is a ship with all sail and no rudder. Our country has achieved its greatness because, with its respect­ ful distance from our private lives, our Government has allowed all of its citizens to answer for themselves, and without interference, those questions that are most fundamental to humankind. And it is in the way that religion informs our answers to these questions that we not only survive, but thrive as human beings; that we not only endure those difficulties that at some point invariably affect each of our lives, but are able to achieve a sense of character, to gain a recognition of the good, and to enrich our lives by con­ templating that which is divine. Today's witnesses are, I believe, all familiar with the bill that I sponsored last year which has been largely duplicated by a bill being considered today by the House Judiciary Committee. While some of our discussion today may overlap into the specifics of a particular legislative approach, I want to emphasize that the focus of this hearing will be on the larger issues involved, on those rea­ sons that underscore the need for Federal action to protect the ex­ (1) 2 ercise of religious liberty, more than it will be about any singular bill that has been drafted to accomplish that objective. That said, let me emphatically state my view that some legisla­ tive effort is needed, in tandem with the jurisprudential protections recognized by the Supreme Court, to uphold the right of religious freedom guaranteed by the Free Exercise Clause of the Constitu­ tion. While I believe it would be preferable for the Court to return to its previous solicitude for religious liberty claims, until it does, this Congress must do what it can to protect religious freedom, in cooperation with the Court. And while it seems odd that we would need legislation to protect the first freedom guaranteed by the Bill of Rights, when faced with this second-best situation we must do our best to ensure that in our communities Bible study will not be zoned out of believers' own homes, to ensure that Americans' places of worship will not be zoned out of their neighborhoods, and ultimately to ensure that the Founders' free exercise guarantee will demand that government have a good reason before it prohibits a religious practice. The legislative framework I advocated last year, and which will be the basis for the efforts this Congress, will, among other things, establish the rule of strict scrutiny review for rules that burden re­ ligious practice in interstate commerce or in federally-funded pro- grams. Such protection is necessary not because there are system­ atic programs against certain sects now as there had been earlier in our history. Hostility to religious freedom encroaches subtly, ex- tending its domain through the reaches of blind bureaucracies of the regulatory state. Rule-bound, and often hypersensitive to the charge of assisting religion, government agencies all around us cling to the creed that, "rules are rules," and pay no heed to the damage that might be in­ flicted on the individual in the process. Such an extension of arbi­ trary rules into every corner of our lives cannot coexist with the in- finite variety of religious experiences we enjoy and cultivate in our land of America. This morning, we are going to hear from a small cross-section of the exceptionally broad range of religious and civil liberties groups that see a need for Federal legislation protecting religious liberty. So I, in particular, look forward to this discussion. The freedom to practice one's religion is the most fundamental of rights, and the discussion we are having about protecting that right is one we need to have here in Congress and across the Nation.