Religious liberty and the Bill of Rights : hearings before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, June 8, 10, 23, July 10 and 14, 1995 online

REUGIOUS UBERTY AND THE BILL OF RIGHTS



Y 4. J 89/1:104/65

Religious Library aad the Bill of R. . .

HEARINGS

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION



JUNE 8, 10, 23, JULY 10 AND 14, 1995



Serial No. 65










'^/



Printed for the use of the Committee on the Judiciary



REUGIOUS UBERTY AND THE BILL OF RIGHTS



HEARINGS

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION



JUNE 8, 10, 23, JULY 10 AND 14, 1995



Serial No. 65




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1996



For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052864-X



COMMITTEE ON THE JUDICIARY

HENRY J. HYDE, lUinois, Chairman

CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan

F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado

Wisconsin BARNEY FRANK, Massachusetts

BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York

GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, CaUfomia

HOWARD COBLE, North Carolina RICK BOUCHER, Virginia

LAMAR SMITH, Texas JOHN BRYANT, Texas

STEVEN SCHIFF, New Mexico JACK REED, Rhode Island

ELTON GALLEGLY, CaUfornia JERROLD NADLER, New York

CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia

BOB INGLIS, South Carolina MELVIN L. WATT, North CaroUna

BOB GOODLATTE, Virginia XAVIER BECERRA, CaUfomia

STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York

MARTIN R. HOKE, Ohio ZOE LOFGREN, Cahfomia

SONNY BONO, CaUfornia SHEILA JACKSON LEE, Texas
FRED HEINEMAN, North CaroUna
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, IlUnois
BOB BARR, Georgia

Alan F. Coffey, Jr., General Counsel /Staff Director
Julian Epstein, Minority Staff Director



SUBCOMMTITEE ON THE CONSTITUTION

CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, IlUnois BARNEY FRANK, Massachusetts

BOB INGLIS, South CaroUna MELVIN L. WATT, North CaroUna

MICHAEL PATRICK FLANAGAN, lUinois JOSE E. SERRANO, New York

F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan

Wisconsin PATRICIA SCHROEDER, Colorado

MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia

Kathryn a. Hazeem, Chief Counsel

William L. McGrath, Counsel

Keri D. Harrison, Assistant Counsel

John H. Ladd, Assistant Counsel

Robert Raben, Minority Counsel



(H)



CONTENTS



HEARINGS DATES

Page

June 8, 1995 1

June 10, 1995 181

June 23, 1995 275

July 10, 1995 403

July 14, 1995 489

OPENESfG STATEMENT

Canady, Hon. Charles T., a Representative in Congress from the State of

Florida, and chairman, Subcommittee on the Constitution 1

WITNESSES

Alley, Robert, professor of humanities. University of Richmond 223

Anderson, John 241

Armey, Scott, Denton County commissioner. Precinct 3, Denton, TX 521

Ball, William Bentley, attorney, Ball, Skelly, Murren & Connell 140

Barber, Ron B., attorney. Barber & Bartz, Tulsa, OK 493

Barton, David, Wallbuilders 593

Bontempi, Shanda, eighth grade student, Oklahoma City, OK 526

Breidenoach, Lynne 396

Brown, Rev. Lavonn D., pastor. First Baptist Church, Norman, OK 508

Burton, David, private citizen 593

Burton, Joshua, elementary school student 369

Burton, Mark D., father of Joshua Burton 362

Chamberlain, Rev. C. Dow, S.T.D., executive director, Virginia Interfaith

Center for Public Policy 188

Christensen, Richard L., Ph.D., assistant professor of church history, Phillips

Theological Seminary 568

Compton, Donna, the Interfaith Alliance, Disciples of Christ Minister 595

Cowell, Marvin 239

Davis, Derek H., director, J.M. Dawson Institute of Church-State Studies,

Baylor University 134

Edwards, Representative Al, Texas House of Representatives, District No.

146 504

Fiore, April, accompanied by her daughter, Rebecca Fiore 352

Forbes, Rev. Dr. James, Jr., senior minister, Riverside Church 422

Fowler, Autumn 597

Free, Rev. Marcia, pastor. First United Church of Tampa, and president,

Hillsborough Clergy Association 336

Fuller, Rev. Charles G., pastor, First Baptist Church, Roanoke, VA 208

Gardner, Dr. Rufus 272

Gilreath, Cindy 238

Gingerich, Ray, professor, Eastern Mennonite College 253

Graves, Representative William, Oklahoma House of Representatives 530

Green, Jennifer, student. University of North Florida 330

Green, Rev. W. Henry, pastor. Heritage Community Church, St. Petersburg,

FL 315

Gregson, Timothy 243

Herdahl, Lisa, Ecru, MS 469

Hertzberg, Rabbi Arthur, Rabbi Emeritus, Temple Emmanuel 452

Hilton, Dr. James 393

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois .. 404

(III)



IV

Page

Infranco, Joseph P., Migliore & Infranco, P.C 475

Istook, Hon. Ernest J., Jr., a Representative in Congress from the State

of Oklahoma 4^ 49I

Johnston, A. Eric, attorney, Johnston, Trippe & Brown 385

Johnston-Loehner, Amber, daughter of Marian Johnston-Loehner 325

Johnston-Loehner, Marian, mother of Amber Johnston-Loehner 329

Jones, Keith 273

Kidd, Art 240

Lazarus, Jessica 397

May, Colby, senior counsel. Office of Governmental Affairs, American Center

for Law and Justice 184

McConnell, Michael W., William B. Grdiam Professor of Law, University

of Chicago 113

Mee, Janice, school board member, Sarasota, FL 399

Murray, William J., author and editor 582

Nauman, Jason C, former student council president, Spotswood High School . 230
Neuhaus, Father Richard John, president. Institute on Religion and Public

Life 446

O'Connor, John Cardinal, His Eminence, archbishop of New York 405

Parshall, Craig L., attorney, Fredericksburg, VA 244

Paulsen, Michael Stokes, professor. University of Minnesota Law School 53

Pearson, Ellen, on behalf of Audry Pearson, student 234

Rana, Dr. Sandra, mother of a Tulsa public school student, Tulsa, OK 558

Redlich, Norman, attorney, Wachtell, Lipton, Rosen & Katz, on behalf of

the American Jewish Congress 83

Rodstein, David 271

Rosenberger, Ronald W., former University of Virginia student 214

Rosenthal, Robert H., president. Southwest Florida Chapter, American Jewish

Committee 369

Shackelford, Kelly, adjunct professor. University of Texas School of Law 262

Schiller, Rabbi Mayer, author and lecturer 459

Schroeder, Hon. Patricia, a Representative in Congress from the State of

Colorado 403

Schwab, Greg, father of Audrey Schwab, public school student 565

Shaw, Geoffrey 242

Shields, Rev. James C, United Methodist minister 598

Shirley, Bill 241

Spong, Dr. Charles W., director for distance education. Southeastern College

of the Assemblies of God 345

Staver, Mathew D., president and general counsel. Liberty Counsel 277

Stewart, Delano S., attorney 357

Storms, Rhonda 398

Vinnett, George, private citizen 602

Welch, Shannon, former high school valedictorian, Desoto, TX 554

Whittington, Lyn, private citizen 550

Wilson, Rev. William G., pastor. First Baptist Church, Waynesboro, VA 200

Wright Bill 271

Yagolnick Victoria 237

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS

Armey, Scott, Denton County commissioner. Precinct 3, Denton, TX: Prepared

statement 524

Ball, William Bentley, attorney. Ball, Skelly, Murren & Connell: Prepared

statement 142

Barber, Ron B., attorney. Barber & Bartz, Tulsa, OK: Prepared statement 497

Brown, Rev. Lavonn D., pastor. First Baptist Church, Norman, OK: Prepared

statement 512

Burton, Mark D., father of Joshua Burton: Prepared statement 365

Chamberlain, Rev. C. Dow, S.T.D., executive director, Virginia Interfaith

Center for Public Policy: Prepared statement 191

Christensen, Richard L., Ph.D., assistant professor of church history, Phillips

Theological Seminary: Prepared statement ...— 572

Davis, Derek H., director, J.M. Dawson Institute of Church-State Studies,

Baylor University: Prepared statement 137

Fiore, April: Prepared statement 354



V

Page

Flanagan, Hon. Michael Patrick, a Representative in Congress from the State

of Illinois: Prepared statement 51

Forbes, Rev. Dr. James, Jr., senior minister. Riverside Church: Prepared

statement 438

Frank, Hon. Barney, a Representative in Congress from the State of Massa-
chusetts: Excerpt from Equal Access Act (P.L. 98-377, title VIII (Aug.
11, 1984)) 154

Free, Rev. Marcia, pastor. First United Church of Tampa, and president,

Hillsborou^ Clergy Association: Prepared statement 338

Fuller, Rev. Charles G., pastor. First Baptist Church, Roanoke, VA: Prepared

statement 211

Gingerich, Ray, professor, Eastern Mennonite College: Prepared statement 256

Graves, Representative William, Oklahoma House of Representatives: Pre-
pared statement 534

Green, Jennifer, student, University of North Florida: Prepared statement 333

Green, Rev. W. Henry, pastor, Heritage Community Church, St. Petersburg,
FL: Prepared statement 319

Herdahl, Lisa, Ecru, MS: Prepared statement 472

Hertzberg, Rabbi Arthur, Rabbi Emeritus, Temple Emmanuel: Prepared

statement 454

Infranco, Joseph P., Migliore & Infranco, P.C.: Prepared statement 478

Istook, Hon. Ernest J., Jr., a Representative in Congress from the State
of Oklahoma:

Court case involving Sante Fe Independent School District 25

IRS memorandum and related letter 6

Prepared statement 12

Johnston, A. Eric, attorney, Johnston, Trippe & Brown: Prepared statement ... 389

Johnston-Loehner, Amber, daughter of Marian Johnston-Loehmer: Prepared

statement 327

McConnell, Michael W., William B. Graham Professor of Law, University
of Chicago:

Prepared statement 116

Proposed language for equal rights amendment 168

Murray, William J., author and edtor 586

Nauman, Jason C, former student council president, Spotswood High School:

F*repared statement 232

Neuhaus, Father Richard John, president. Institute on Religion and Public

Life: Prepared statement 448

Parshall, Craig L., attorney, Fredericksburg, VA: Prepared statement 247

Paulsen, Michael Stokes, professor, University of Minnesota Law School: Pre-
pared statement 57

Redlich, Norman, attorney, Wachtell, Lipton, Rosen & Katz, on Behalf of
the American Jewish Congress: Prepared statement 86

Rosenberger, Ronald W., former University of Virginia student: Prepared

statement 218

Rosenthal, Robert H., president, Southwest Florida Chapter, American Jewish

Committee: Prepared statement 373

Shackelford, Kelly, adjunct professor, University of Texas School of Law:
Prepared statement 266

Schiller, Rabbi Mayer, author and lecturer: Prepared statement 461

Shields, Rev. James C, United Methodist minister: Prepared statement 600

Spong, Dr. Charles W., director for distance education, Southeastern College

of the Assemblies of God: Prepared statement 348

Staver, Mathew D., president and general counsel. Liberty Counsel: Prepared

statement 281

Wilson, Rev. William G., pastor. First Baptist Church, Waynesboro, VA: Pre-
pared statement 203

APPENDIX
Additional material submitted for the hearings 605



RELIGIOUS LIBERTY AND THE BILL OF

RIGHTS



THURSDAY, JUNE 8, 1995

House of Representatives,
Subcommittee on the Constitution,

Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 10:09 a.m., in room
2141, Rayburn House Office Building, Hon. Charles Canady (chair-
man of the subcommittee) presiding.

Present: Representatives Charles T. Canady, Henry J. Hyde, Bob
Inglis, Michael Patrick Flanagan, F. James Sensenbrenner, Jr.,
Martin R. Hoke, Lamar Smith, Bob Goodlatte, Barney Frank, Mel-
vin L. Watt, Jose E. Serrano, John Conyers, Jr., and Patricia
Schroeder.

Also present: Kathryn A. Hazeem, chief counsel; Jacquelene
McKee, paralegal; and Robert Raben, minority counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

Mr. Canady. The subcommittee will come to order.

Recent decisions of the U.S. Supreme Court have been criticized
for failing to take into account the rights of students in public
schools and individuals in the public square to the free exercise of
religion and freedom of speech as guaranteed by the first amend-
ment to the U.S. Constitution. It is clear that the Government
should not be a proponent of religious dogma.

Unfortunately, the law in effect has driven religion from the pub-
lic schools and the public square, except in rather limited cir-
cumstances. In fact, as the testimony today will show, government
entities are often hostile toward religious speech and expression, ef-
fectively censoring religious ideas and expression because of their
content.

The establishment clause and the free exercise clause have been
interpreted by the Supreme Court and the lower Federal courts in
a way that often places them in conflict with one another. Our job
here today is to examine that jurisprudence with an eye toward re-
lieving the conflicts and to ensuring that the core value of the first
amendment, religious liberty, is fully protected.

I have recently read that during the 49 months of his Presidency,
Abraham Lincoln issued nine separate calls to public penitence,
fasting, prayer, and thanksgiving. We have indeed come a long way
from the days of Lincoln to today, when in some places students
are harassed by school authorities as they seek to gather for prayer
or to otherwise express their religious convictions.

(1)



Our hearing today is the first of several panels the subcommittee
has scheduled on this very important issue. This Saturday the sub-
committee will hold a hearing on "Religious Liberty and the Bill of
Rights" in Harrisonburg, VA. We will hold additional field hearings
throughout the summer. It is my intention to hold more hearings
in Washington in late July.

I want to thank each of the witnesses for coming this morning.
I look forward to hearing their testimony.

Our first witness this morning is the Honorable — ^I am sorry, Mr.
Frank.

Mr. Frank. Thank you, Mr. Chairman.

Since you were gracious enough to wait for me, it would be a
waste for me not to make my statement.

I do not believe the Constitution needs to be tampered with in
this regard. Now we are on our fourth constitutional amendment
and the year isn't half over. At this pace, my majority colleagues
apparently will have proposed 16 constitutional amendments in
their time here.

To date, none have been adopted, but out of 16, I would think
the law of averages alone means they will probably get a couple.
But this one I think is particularly ill-advised.

Under the law, under the Constitution, reinforced by a law
passed by this Congress with my support at a time when it was
controversial, students who are religious have fiill opportunity to
pray in every meaningful way. The schoolday is so structured that
there are numerous times during the day when a student who
wishes to say a prayer, silently, of course, at any time, but audibly
at a variety of times.

People can speak going from one class to another, there are peri-
ods before class starts, there is a period at lunch for many people,
there is a period of recess for many people, there are gymnasium
classes, and others when people are allowed to speak. I gather
there have been allegations that in some cases students who have
been seen to be praying or heard to be praying during those peri-
ods, have been rebuked. That is a violation of their rights under
current law.

You do not need a constitutional amendment to protect the right
of a student to say a prayer before his or her lunch. Any school offi-
cial who interferes because he or she happens to overhear a stu-
dent on his or her free time saying a prayer, is making a mistake.

When we passed the law some time ago, known as the equal ac-
cess law, which talked about the right of students to use the school
buildings before and after school, many of my friends wanted to ex-
clude the right of students to have religious meetings. I thought
that was a grave error. And in fact, we passed a law which was
challenged in court but upheld by the Supreme Court which says
if you make the school faciUties available before and after school
to students, you may not discriminate against religious organiza-
tions. I had friends who wanted to do that. They were wrong.

In fact, that bill passed the House under a suspension of rules
procedure where we had two-thirds, and that is what happened. I
am sure there are cases when individual school administrators or
teachers violate the students' right. There are often cases of peo-



pie's rights being violated. That is why we have adjudicatory proce-
dures to vindicate them.

I see no evidence at all that these are terribly widespread. Many
of the examples I have heard about when you look at them are not,
in fact, infringements of people's rights. So the law is already clear
that students have that right.

Why then a constitutional amendment? I think it is very clear.
Because people want to expose students who are not themselves re-
ligious to the religion of others. No one seriously can contend that
individuals, students who are themselves religious, can be pre-
vented from speaking out, praying in a variety of ways. What peo-
ple are seeking is the right to engage in religious observance in
ways that bring in other people. And I think it is one of the gravest
inconsistencies that I have seen in many years.

A good number of people who proclaim to be supporters of the
family, the autonomy of the family, who talk about defending the
family from the intrusion of government, are prepared to use the
mechanism of compulsory school attendance to expose children to
religion beyond what their families might choose them to get. This
proposal makes sense only if you think that if you leave it to the
families, the children will not be inculcated with a sufficient
amount of religion. And this creates a forum in which children who
are brought up in nonreligious, irreligious, or antireligious setting,
all of wMch are as constitutionally protected as religious settings,
the Constitution should be seen as firmly protecting people's rights
to be very religious, very antireligious, very nonreligious.

The Government is neutral on that family and individual choice.
And this is an effort to undermine the autonomy of that choice. No
one, I believe, who understands the role of prayer, thinks that you
need to have public access in a school, during the schoolday, for
your prayer to be valid, for you to be able to pray in a way that
is religiously significant to you and the Grod you worship.

What is being sought is the right to do that in a public and
semicoercive manner, because you have it being done during the
schoolday when children are there involuntarily because of the
school attendance laws, and the effort is, as I said, to expose those
children to more religion than the families would do if they were
left to their own devices. That is not an appropriate role for the
U.S. Grovemment or any other government, and that is why I am
opposed to this constitutional amendment.

Mr. Canady. Thank you, Mr. Frank.

Our first witness this morning is the Honorable Ernest Istook,
Jr. Congressman Istook represents the Fifth District of Oklahoma
and has been a leader on this important issue.

I want to thank Mr. Istook for the hard work he has been doing
on this very important issue and we appreciate Mr. Istook's being
with us today.

We are going to ask that our witnesses try to confine their testi-
mony to about 10 minutes. The testimony contained in your full
statement will be included in the record without objection for all
the witnesses.

Mr. Istook.



STATEMENT OF HON. ERNEST J. ISTOOK, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF OKLAHOMA

Mr. ISTOOK. Thank you, Mr. Chairman.

Mr. Chairman and members of the committee, I do thank you for
convening this hearing, and those which are to follow, concerning
the religious liberties which are so precious and fundamental to us
as Americans. We all know religious freedom was a vital motive
which prompted many people to come across the oceans to this
country.

Our Founding Fathers understood that our fundamental rights
do not come from government, but from God. They enshrined with-
in the Declaration of Independence the words that all men are cre-
ated equal, and that we are endowed by our Creator with certain
inalienable rights. And during our colonial period and for almost
200 years thereafter, this belief in God was clearly and openly ex-
pressed. It was there in pubUc activity, it remains engraved on
public buildings.

It is sung in our national anthem, and even stamped on our coins
and printed on our currency, "In God We Trust." In Philadelphia,
on Constitution Hall itself is permanently written: "Let us raise a
standard to which the wise and honest can repair. The event is in
the hands of God." The words were spoken first by George Wash-
ington.

Unfortunately, despite the freedoms enshrined in the Constitu-
tion, millions of Americans today believe their freedom of religion
and of religious expression is endangered. The most frequently pub-
licized comments mention prayer in public schools or at gradua-
tions.

But although the concern began in the 1960's with court deci-
sions outlawing vocal prayer at school by groups of students, it has
not ended there. From classroom prayer, the court restrictions on
religious expression have expanded.

In a case involving a Jewish rabbi, it was determined to restrict
graduation prayers as well. Now our courts are clogged today with
students begging to offer their own prayers at graduation.

The Ten Commandments, the source of so many of our own laws,
was banned not only from the schoolhouse, but also from the court-
house. And at holiday times, nativity scenes were kicked off of pub-
lic property unless their supposedly dangerous influence was di-
minished by including enough plastic reindeer or maybe Frosty the
Snowman to counterbalance them.

Even a State law to permit a moment of silence was struck down
by the Supreme Court in 1985 in Wallace v. Jaffree, because a mo-
ment of silence could be used for silent prayer. Then about a year
and a half ago, Federal bureaucrats got into the act big time. The
Equal Employment Opportiuiity Commission proposed new regula-
tions to have the Federal Government control and restrict what
people in the workplace could or could not say about their religion
and their beliefs.

Although congressional outcries killed that EEOC plan, some
Federal efforts continue. For example, trainers for AIDS awareness
seminars, mandatory for Federal workers, were taught that they
might need to break down the religious beUefs of the training par-



ticipants. And now there is a memo from the IRS, the Internal Rev-
enue Service.

And, Mr. Chairman, I have made copies of the memo and a relat-
ed letter available to the committee here.

[The information follows:]



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subjecc: Wor^placa Rascnccions on Dispiay oi: Religious ica.-ns



Faciarai regulacions procac: employees againsc unlawcul
di scrim 1 na c ion based on race, color, raligion, gender,
nacionai origin, age or disabilic/. The racsnc noLiday season
prompced some employees co inquire abouc ciie Discncc 's goiicv
regarding Che display oc religious icams m che workplace.



The display oc religious icasns m che (-.â– orl<ulace where
chere is pocancial viewing by co-employees or caxoayers oc
differe.TC Caichs is prohibicad , since such displays can be
considered "incrusive" according Cc courc ruling (Brown v.
PoL^c Councy Iowa) . The Courc concluded this limicacion on an
individual's conduct is noc a violation oc cirsc .\mendmenc
rigiics since che individual is scill free co hold personal
religious beliefs.

employees wishing co bring personal religious icems
uichin cheir work area should keep che icems in an enclosed
space wichin chair work scacion. available for cheir personal
review only. These rascnccions apply year-round, alchough
mosc quescions arise during che holiday season.

We will reissue chis memoranduin ac che end oc
November 1995. Please forward ic co managers ac your pose of
ducy CO ensure consiscency and compliance. If you need
addicional i.tc orma cion . please ccncacc your EZO Specialise ac
(7m)543-4'?2i.



Internal Revenue Service



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