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in the U.S. Supreme Court defending the Pledge on the merits. And the vast majority of Americans agree with the Senate rather than with the Ninth Circuit and the American Civil Liberties Union on the constitutionality of the Pledge.

But however the Court ultimately rules, the Pledge case reminds us of a broader, systemic problem caused by the Court's previous rulings: an unjustifiable hostility to religious expression in public squares across America. And just as there is bipartisan agreement on the constitutionality of the Pledge of Allegiance, so should there be bipartisan agreement that Government should never be hostile to expressions of faith.

Accordingly, our hearing today is entitled "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square. Our witnesses will examine issues of Government discrimination against religious expression generally, including both discrimination against religious versus non-religious expression in Government speech, as well as discrimination against purely private expressions of faith.

It is difficult to think of a provision of the United States Constitution that has been so badly misunderstood and misapplied as the First Amendment with respect to the subject at hand or with worse consequences for our coarsened culture and discourse.

The First Amendment contains two important provisions with respect to religious liberty. It respects the "free exercise" of religion against Government interference or intrusion. And it also provides that Congress shall make no law "respecting an establishment of religion.'

The Founders included the Establishment Clause because they wanted to forbid Government from taking any action either to establish an official state church or to favor a particular religious denomination in some way.

Notably, nothing in these provisions requires Government to be hostile to religious speech or religious practice or religious liberty overall. The Constitution nowhere requires Government to expel expressions of faith from the public square. Nor does the Establishment Clause forbid Government from acknowledging, indeed celebrating, the important role that faith has historically played in the lives of the American people, dating back to the Founders themselves.

This week, the Nation mourns the passing of a great man, President Ronald Reagan. I think he spoke for the American_people when he said in 1983, and I quote, "When our Founding Fathers passed the First Amendment, they sought to protect churches from government interference. They never intended to construct a wall of hostility between government and the concept of religious belief itself."

After all, references to faith permeate our Nation's history. References to faith can be found across our Nation's most important institutions of Government, in our fundamental legal documents, and on our cherished cultural treasures. Our currency is emblazoned with the phrase "In God We Trust." The public buildings of all three branches of Government-including the United States Supreme Court-are decorated with numerous references to God. The Declaration of Independence acknowledges the Founders' "firm reli

ance on the protection of Divine Providence." It talks about “nature's God" and our "Creator," while the Constitution itself refers to "our Lord."

An Act of Congress authorized President Washington to issue the Nation's first Thanksgiving Proclamation. Moreover, that Proclamation specifically referenced the "duty of all Nations to acknowledge the Providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor." And on the very day that Congress proposed the First Amendment, it also approved the Northwest Ordinance, which expressly directed to U.S. territorial governments that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

So there is ample precedent and strong tradition to support Government speech that acknowledges, accommodates, and indeed celebrates the importance of faith in the lives of the American people.

Moreover, the First Amendment specifically protects private religious expression in the public square by guaranteeing both the free exercise of religion and freedom of speech against Government interference. As Justice Scalia has aptly written, "a priest has as much liberty to proselytize as a patriot"-a principle that holds in the public square the same as on private property.

Despite these clear constitutional commands, however, some courts, led by the United States Supreme Court, have demonstrated a clear and unmistakable hostility towards religious expression in the public square.

Given this troubling and incoherent jurisprudence, it is no surprise that local governments have far too often demonstrated similar hostility to religious expression as a result. Whether out of ideological motivation, ignorance of the law, or simple fear of litigation, local governments across the Nation have repeatedly attempted to banish faith from the public square.

Today, we will hear the personal stories of citizens who have experienced Government hostility to religious expression firsthand.

They are just a few of the countless examples from across the country. Children across America are being barred from sharing candy canes with classmates. Teachers are being reprimanded for circulating the President's Proclamation of a Day of National Prayer through their school e-mail accounts. Schools are specifically targeting religious groups and excluding them from their campuses.

The situation has become so extreme that even patriotic and other non-religious references to faith have been attacked. It is simply patriotic to recite the Pledge of Allegiance, yet the Ninth Circuit believes it is unconstitutional in public schools. The Los Angeles County seal is under attack by the American Civil Liberties Union because it includes a depiction of a cross-a cross that simply reflects "the historical importance of the Catholic missions" in California.

This pervasive hostility to faith is wrong, and it is without constitutional basis.

I hope today's hearing will accomplish two things. First, we must reaffirm our bipartisan commitment to religious freedom and lib

erty in the public square. And, second, we must recognize that unfortunate and unjustified hostility to religious expression is pervasive, and it must be stopped.

The restoration of religious liberty and celebration envisioned by the Founders should be a bipartisan effort. The judicial attack on the Pledge of Allegiance has been unanimously condemned by the United States Senate. And both the Clinton and Bush administrations have issued Department of Education guidelines forbidding discrimination against religion by public schools, consistent with a Congressional mandate in the No Child Left Behind Act.

I began my remarks by quoting public expenditure review. I would like to close with the words of President Clinton, who stated in 1995: "Americans feel that instead of celebrating their love for God in public, they're being forced to hide their faith behind closed doors. That's wrong. Americans should never have to hide their faith. But some Americans have been denied the right to express their religion and that has to stop. That has happened and it has to stop."

I agree. Americans should never have to hide their faith. They have the constitutional right to exercise their faith openly—not just at home, but in the public square as well.

[The prepared statement of Chairman Cornyn appears as a submission for the record.]

Chairman CORNYN. With that, I will turn the floor over to the distinguished Ranking Member, Senator Feingold, for any opening statement he cares to make.


Senator FEINGOLD. Thank you, Mr. Chairman.

A guarantee of religious freedom was fundamental to our Nation's founding. The Pilgrims and other settlers braved crossing the Atlantic Ocean because they were fleeing religious persecution and wanted to live where they could exercise their religious beliefs freely. And so it is not surprising that a guarantee of the free exercise of religion without Government intrusion would be contained in the very first line of the first of ten rights guaranteed to every American in the Bill of Rights.

The First Amendment to the Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In other words, the First Amendment contains two important guarantees of religious freedom: the Free Exercise Clause and the Establishment Clause. Americans have the right to exercise their religion, and Americans of any faith or no faith at all have the right to be free from Government establishment of religion in their lives. Together, the Free Exercise Clause and the Establishment Clause have allowed religion in our Nation to flourish. In addition, as President Bush has noted, preserving religious freedom has helped America avoid the wars of religion that have plagued so many cultures throughout history with deadly consequences.

So, Mr. Chairman, with all due respect, I disagree a bit with the title of this hearing, "Hostility to Religious Expression in the Public Square." At least in my experience, I do not think that there is

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such widespread hostility. There may be confusion. There may be some in our country who would like to censor all public expressions of religious faith, and there are others that may want to read the Free Exercise Clause in isolation and then ignore the Establishment Clause, even to the point of having a state-sponsored religion. The fact is that the First Amendment in its entirety has served our Nation well and has allowed religious expression to thrive and not be stifled. Americans are a deeply religious people, and yet we have no official state religion. Those two facts taken together succinctly express the genius of the Framers in the area of religious freedom. In recent years, there has been a lot of confusion about what the religion clauses of the First Amendment require and forbid. I hope that this hearing does clarify those areas of confusion, from the Pledge of Allegiance to religious garb in schools, to expression of religious faith by private citizens in public buildings or at public events, to Government-sponsored sectarian prayers at such events.

Ours is a Nation built on diversity and religious pluralism. The legacy of religious liberty in our Nation is unparalleled in human history, and we in the Congress have a special duty to protect and nurture that legacy. I supported the Religious Freedom Restoration Act of 1993. I thought the Supreme Court had made a mistake in the Smith decision in 1990 by reducing the protection of religious expression from governmental intrusion. I was disappointed when the Court later struck down the Religious Freedom Restoration Act as an inappropriate exercise of Congressional power.

In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act and may need to enact further legislation to protect the free exercise of religion. But I hope it does so in a way that respects the Establishment Clause as well.

Americans were acutely reminded of our Nation's tradition of religious freedom earlier this year when France banned religious articles and symbols in state schools. This meant that Christian, Jewish, Muslim, and Sikh students and students of other faiths would be denied the right to practice their faith once they entered the schoolhouse door. Thankfully, our Nation has never seen a similar effort to stifle individual, voluntary religious expression by students in our public schools, although there have been instances where Government officials misunderstood the law.

As we will hear from Nashala Hearn this afternoon, she experienced one such unfortunate episode. But I am very pleased that her case reached the proper result-a result that reaffirms religious freedom.

Like many Americans, Mr. Chairman, I disapproved of the Court of Appeals decision in Newdow v. U.S. Congress, the Pledge of Allegiance case. I joined my Senate colleagues when we unanimously expressed our view that the Pledge is constitutional. The phrase "under God" in the Pledge is not and should not be construed as Government establishment of religion. The Supreme Court will issue its decision in the Newdow case any day now, and I, like most Americans, am hopeful that the Supreme Court will uphold the Pledge.

While I do think the lower court went too far in finding a violation of the Establishment Clause, we should, nevertheless, recog

nize that the Establishment Clause has an important role in protecting all Americans and their right to exercise their religion or no religion at all.

Today, we will hear from Steven Rosenauer, whose experience, I believe, will illustrate the need to be mindful of the importance of the Establishment Clause as we consider the issue of religious expression at public events.

I am also very pleased that we have Reverend Brent Walker and Professor Melissa Rogers here this afternoon. Reverend Walker is with the Baptist Joint Committee on Public Affairs and is an ordained Baptist minister. He understands the legal, practical, and theological dimensions of religious freedom. Professor Rogers was formerly with the Pew Forum on religion and public life, and currently a professor at Wake Forest University's Divinity School. She will give us insight into the legal and policy issues involved in this debate, which is as old as the republic itself.

Finally, I want to welcome our Senate colleagues on the first panel, of course, and Representative Chet Edwards of Texas, one of the most passionate defenders of religious liberty in the Congress and in our Nation.

In sum, Mr. Chairman, I believe that the First Amendment provides parameters that have been absolutely critical in protecting religious freedom and allowing Americans to thrive in and practice whatever religion they choose. These are parameters that have served our Nation well since its founding. Despite the title of this hearing, I believe that the First Amendment is alive and well in our country, as is religion.

Thank you, Mr. Chairman. I do look forward to the testimony. [The prepared statement of Senator Feingold appears as a submission for the record.]

Chairman CORNYN. Thank you, Senator Feingold.

And, with that, we will turn to our distinguished panel and ask you, Senator Shelby, if you will lead off and make such statement as you see fit.


Senator SHELBY. Thank you, Mr. Chairman. First of all, I would ask that my entire written statement be made part of the record. Chairman CORNYN. Without objection.

Senator SHELBY. Chairman Cornyn, Senator Feingold, Senator Sessions, and Members of the Subcommittee, I want to thank you for holding this important hearing and for having me here to discuss briefly the Constitution Restoration Act. Joined by Senators Miller, Brownback, Allard, Graham, Bunning, Lott, and Inhofe, I introduced Senate bill 2323, the Constitution Restoration Act. Like millions of Americans, I believe that the courts have exceeded their power. This legislation recognizes the rights of the States and the people as embodied in the Declaration of Independence and the Constitution, Ninth and Tenth Amendments, to acknowledge God. In short, this legislation goes to the very foundation of our country and the legitimacy of our system of Government.

Over the years, we have seen a disturbing and growing trend in our Federal courts to deny the rights of our States and our citizens

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