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faith, repentance, and self-denial, are seldom preached by these churches that are funded by the government. They just are things to them, of course." That is what he says, these great doctrines become something that aren't vital anymore. They just become something that are things to them.

And so I think it is really important to remember, especially when we are talking about Government grants and contracts with churches, that the Government is going to regulate the churches; the Government's funding of them is going to create a dependence of the churches on the Government. And I believe in the end that creates for us a situation in which churches and religion are more creatures of the state than creatures of God. And that is a problem. Senator SESSIONS. I am sorry, Mr. Chairman. I went over my time.

Chairman CORNYN. Well, this has been a fascinating discussion, and if it were up to me, we could continue for a lot longer. I am sure we wouldn't solve all our problems, but it has been fascinating and I appreciate the contribution each one of you has made.

What I worry about is that what we are telling people across the country is, yes, there are some rules, but if you have the time and the money to hire a lawyer to help you figure it out and give you legal counsel so you can conform your conduct in a way that, yes, you might probably win a legal challenge that goes all the way to the United States Supreme Court, you might be all right. But if you don't, then the easiest thing for you to do is just to leave and vacate this public arena where I believe that there are many people who are frustrated that the public arena in America and across the world today are full of all sorts of messages from sex to violence and the like. I know it is a big frustration on the part of parents. You can talk about just about anything except your faith because of what I view to be somewhat contradictory rules that have come out of the United States Supreme Court.

And I agree with Senator Sessions-I believe it was Senator Sessions who said some of the legislation that you have seen and that Senator Shelby and others have talked about in terms of jurisdiction stripping are a manifestation of the frustration that we feel on behalf of our constituents for how do we get ourselves out of this box. It is unlikely that the members of the United States Supreme Court, once they have embraced a test-which is, in my view, wholly made up, but it is, nevertheless, their test and they are going to use it every time a case goes to the Supreme Court. How do we get ourselves back to some sort of practical, predictable understanding of what the rules are so that people can understand what is required of them and what the rules are and then conform their conduct in a way that lets them avoid litigation and yet respects their right to express-to speak their religious views or faith in a public forum.

So I would just ask in closing for our legal scholars here to continue to think about these issues, and if you have anything you would like to share with us by way of suggestions or ideas-part of the problem is, of course, because these are constitutional tests, it is hard for the legislature to make much of a dent in this sort of thing. But maybe there is a role you can think of for us to play in trying to find a way out of this thicket.

Senator SESSIONS. Mr. Chairman?

Chairman CORNYN. Senator Sessions?

Senator SESSIONS. There was one question I meant to ask and wanted to ask that was about the Boy Scouts. I was a member of the Boy Scouts. And they don't really practice religion, but they have certain moral principles and a belief in God. On my oath, I will do my duty to God and my country. Obey the Scout laws. Help other people at all times. They are getting-what do you call it?hostilized in the public square. So I might do that in writing. I don't want to go into any long thing, but if any of you had a brief comment, Mr. Garnett or—

Mr. GARNETT. If you are referring to the case out in California where the Boy Scouts lost their lease on public land because they were deemed to be a religious group, I guess I share your reaction to it. It strikes me as a mistaken action. The Boy Scouts are a private association that enjoy First Amendment rights to express themselves and to embrace the messages that they like to. And San Diego is not establishing a religion merely by permitting the Boy Scouts to do their thing on public land.

Senator SESSIONS. And that was the peg they hung it on, establishing a religion. I remember, Mr. Chairman, before you came to the Senate, not long after I did, the Washington Zoo would not allow the Boy Scouts to have a Court of Honor, at the Washington, D.C., Zoo because of their affirmation of faith, apparently, or maybe their standards of behavior they expected of their scoutmasters. But they did it on, I think, separation of church and state and backed down after Eagle Scout Senator Mike Enzi started up and questioned it and challenged it, and they finally retreated. We are off base here somewhere.

Mr. Muñoz, did you want to comment?

Mr. MUÑOZ. This is the problem, what you are pointing to is the problem with the endorsement test, because Government cannot endorse religion. Well, if we allow the Boy Scouts who promote this moral code to meet on our grounds or if we acknowledge the Boy Scouts in some way, someone might think we are endorsing religion and, therefore, we need to keep them out of the public arena. And that is the logic of the endorsement test. And because, look, you can get sued, better just to avoid the whole thing, better to keep the Boy Scouts away, and that way we won't get sued, and that way we won't face litigation. And because it is so easy to sue under these standards and have a real case under these standards, that is what leads to hostility in the public square, hostility against the Boy Scouts, or anyone else who expresses religious sentiment. Chairman CORNYN. We will have to end there.

In closing, I would like to thank all the panelists and the Members of the Subcommittee who have been here today, and also to thank the Chairman, Chairman Orrin Hatch, for scheduling this hearing, and Senator Feingold for his usual cooperation and dedication.

As I stated earlier, we will leave the record open until 5:00 p.m. next Tuesday, June the 15th, for members to submit additional documentation or ask questions. I would also say if there is additional written testimony or other things that witnesses would like

to tender, we will also make those part of the record if they are relevant to what we are talking about.

With that, this hearing of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights is adjourned.

[Whereupon, at 5:24 p.m., the Subcommittee was adjourned.] [Questions and answers and submissions for the record follow.] [Additional material is being retained in the Committee files.]


Honorable Roy S. Moore's Response to

Written Questions of Edward M. Kennedy

Senate Judiciary Committee Hearing
"Beyond the Pledge of Allegiance:

Hostility to Religious Expression in the Public Square"

June 24, 2004

In response to your written questions of June 15, 2004, I respectfully submit the following:

“As you know, religiously affiliated organizations have long received government funds to operate social services, although they had generally been constrained to do so in a non-discriminatory manner. I am interested in your views regarding the legal requirements applicable to religious organizations when administering federally funded services.

“1. In your view, may the government directly fund a church or other religious institution?"

First, it is arguable whether Congress has the power to fund any social programs, whether through religious institutions or any other kind of organization. While Article I, § 8, clause 1 of the Constitution permits Congress to “lay and collect taxes” in order to "pay the debts and provide for the common defence and general welfare of the United States," it is likely that the "general welfare" clause is not synonymous with "social welfare” because absolutely no programs for social welfare were funded by the federal government until the late 1930's, after the Supreme Court began to stray from reading the Constitution according to its actual words. Neither can the "necessary and proper" clause, Article I, § 8, clause 18, reasonably be interpreted to permit such funding. This clause grants what are known as "implied powers,” that is, powers necessary "for carrying into execution the foregoing powers" explicitly expressed in Section 8. Article I, § 8, clause 18. As Alexander Hamilton explained it: "[I]t is expressly to execute these powers [of Congress], that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers, upon which this general declaration is predicted. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless." The Federalist, No. 33 (emphasis in original). In other words, the "necessary and proper" clause provides Congress the means necessary to carry out the powers granted in the foregoing clauses of Section 8, see, e.g., The Federalist, No. 44 (James Madison), and, therefore, it arguably does not give Congress separate sanction for funding social programs because such funding would not achieve any of the express powers listed in Article I, § 8.


However, if we assume that Congress does have the authority to fund such programs, directly funding a particular religious institution would violate the Establishment Clause of the First Amendment. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." An “establishment," as I stated in my written testimony to the Subcommittee, is "the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others." Thomas M. Cooley, General Principles of Constitutional Law, 213 (reprint 1998) (1891). Prevention of a single church, denomination, etc., from receiving federal government backing at the expense of all others, including the established churches that existed in the states at the time, was the basic reason the Founders crafted the Establishment Clause.

“2. Do you believe it is permissible for the government to fund religious programs? If so, under what circumstances?"

By "religious program” I presume you mean a program run by a church or religiously-affiliated organization such as the Salvation Army and Prison Fellowship Ministries. The First Amendment would not prohibit giving taxpayer funds to such "religious" organizations because such funding would not constitute a law "respecting an establishment of religion." In 1854, the House Judiciary Committee, in a report concerning the constitutionality of employing a chaplain for Congress and chaplains for the military, Congress concluded that an “establishment of religion” “must have a creed defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive and penalties for the non-conformist." H.R. Rep. No. 124 (1854). Religious organizations such as the Salvation Army and hundreds of others do not have these characteristics and therefore do not qualify as “establishments of religion." Moreover, so long as programs run by organizations that associate themselves with one particular religion are not specially favored by the government over programs run by organizations that associate themselves with other religions, there is no conceivable way that such funding could violate the First Amendment.

If you mean by "religious programs,” however, such things as prayer in schools, displays of the Ten Commandments on public property, and so forth, then I refer you to my earlier written and oral testimony to the Subcommittee in which I explained that there is a distinct difference between “religion” and acknowledgments of God by government. Acknowledgments of God are not forbidden by any provision of the Constitution, and indeed, are vital to our national character. Indeed, as Joseph Story observed in his Commentaries on the Constitution with regard to the meaning of the First Amendment, "[t]he promulgation of the great doctrines of religion, the being and attributes, and the providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent

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