virtues-these can never be a matter of indifference in any well ordered community." J. Story, 3 Commentaries on the Constitution § 1865 (1833). Therefore, government funding of such "programs” is perfectly permissible. "3. Do you believe the government may ever allow a religious organization to practice employment discrimination based on religion in programs and positions financed by federal funds? If so, on what basis, and in which circumstances?" Since the federal government is funding all manner of social programs and services, it must not discriminate against religious organizations that provide such programs and services regarding their hiring practices. For the government to tell an organization whom it can and cannot hire and fire based on the beliefs of the employees and potential employees is to violate the freedom of the organization to exercise its religion. James Madison said that “religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.' (Virginia Declaration of Rights, Art. 16). The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” J. Madison, Memorial and Remonstrance, reprinted in American State Papers on the Freedom of Religion, at 112-13 ((William Blakely, ed.) (1949). Government has no jurisdiction over the consciences of the people to tell them what they can and cannot believe or with whom they can and cannot associate based on those beliefs. As the Supreme Court has explained, “[I]mplicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). “Government actions that may unconstitutionally burden this freedom may take many forms, one of which is 'intrusion into the internal structure or affairs of an association' like a ‘regulation that forces the group to accept members it does not desire."" Boys Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (quoting Roberts, 468 U.S. at 623). To deny a religious organization the right to make employment decisions based on religious belief is to strike against the very core of such an organization, whether it be a church or an organization not directly associated with a church that nonetheless holds to specific religious tenets. Denying federal funding to religious organizations simply because they hold to their religious beliefs or dictating to religious organizations what they must believe once they accept federal funds is discrimination against those organizations based on religion even while the government proclaims to be a neutral party among the myriad of religions and opinions held by individuals and organizations in this country. Such organizations should not be forced to forfeit their religious identity or core principles to receive public funds that would be otherwise available to them. Response to Questions from Senator John Cornyn By Vincent Phillip Muñoz Senate Judiciary Hearing Hostility to Religious Expression in the Public Square" 8 June 2004 1. During the hearing, it was suggested by some that—notwithstanding the countless examples articulated by various witnesses—hostility to religion expression in the public square does not really exist in America. It was suggested that the examples of such hostility are few, and that the examples typically reflect ignorance of the law and good faith attempts to comply with the law, rather than actual, outright hostility towards expressions of and exercises of faith. a. Do you agree that hostility to religious expression is rare in our country? Residents in the United States enjoy widespread religious freedom. Unfortunately, incidents of hostility toward religious expression in the public square are also commonplace. b. Can you provide examples of hostility to religious expression—including examples of judicial decisions, litigated cases, government actions (including actions by public schools and other local governments), law review and other academic writings, media stories, or any other examples? The following are recent examples of the types of hostility toward religious expression in the public square faced by religious citizens. The list below is meant to be illustrative only. The number of similar such instances that occur every year is significant. Prohibition of private religious exercise in public spaces: On Sunday, May 23, 2004, park officials in Stafford County, VA told Rev. Todd Pyle of Cornerstone Baptist Church that he could not baptize individuals in Falmouth Waterfront Park because religious activities were not allowed. Rev. Pyle had just performed a series of 12 baptisms in the Rappahannock River, which borders the park. Censorship of Religious Speech at Public School Graduation Exercises: In Minnesota in the spring of 2003, officials of the Truman Public School District prohibited Maria Woolle from quoting Jeremiah 29:11 as part of her salutatory address. ("For I know the plans I have for you," declares the LORD, "plans to prosper you and not to harm you, plans to give you hope and a future.”) – [allowed after the threat of a lawsuit] In April 2003, Anna Ashby, a senior at Windsor High School in Windsor, Va. was prohibited from singing the Celine Dion song “The Prayer” because contained religious lyrics. Ashby was chosen by her classmates to perform, but Dr. Michael McPherson, superintendent of Isle of Wight County School District, instructed school officials to inform Ashby and her classmate that allowing her to perform the song would violate the school's policy on the separation of church and state. In May 2003, school administrators ordered Winneconne High School senior Rachel Honer to use the words He, Him and His instead of three mentions of God in the lyrics of the song she planned to sing at graduation. If she didn't comply, she was told, she could not sing. [She filed a federal lawsuit, and the district reversed itself, saying she could sing the song with its original lyrics, but could still not mention "God" in her introductory remarks.] Elimination of Religious symbols from the public square: In June 2004, the Los Angeles County Board of Supervisors caved into pressure by the ACLU and agreed, in a closed-door meeting, to remove a small cross from the LA County seal. The cross was adopted in 1957 to represent the Spanish missionaries who founded the Los Angeles Country missions during the 18th Century. Other images on the 47-year-old seal include a cow, a tuna, a Spanish galleon, the Hollywood Bowl and the goddess Pomona cradling an armful of fruit. Elimination/Prohibition of prohibition of religious references in the public square: In November 2001, King County, Washington executive Ron Sims sent a memo to all King County employees requiring that all workplace holiday celebrations remain "religion-neutral." The memo includes examples of neutrality, such as, “naming the celebration(s) 'Holiday Celebration' or 'Winter Celebration'; using general greetings such as 'Happy Holidays' or 'Holiday Greetings'; using decorations that are commonplace — poinsettias, evergreen boughs, lights — but not using religious symbols nor (sic) practices." The posting of the Ten Commandment has been prohibited by several state and federal courts. Notably, in 2003 the 6th Circuit Court of Appeals in ACLU v. McCreary County prohibited the display of the Ten Commandments in Kentucky public schools and county courthouses, even when the displays included other notable historical documents, including portions of the Declaration of Independence; the Kentucky Constitution's preamble, "In God We Trust"; a page from the 1983 Congressional Quarterly referring to the "Year of the Bible" and reprinting the Ten Commandments; a proclamation by President Lincoln establishing a Day of Prayer and Humiliation; Lincoln's statement, "The Bible is the best God has ever given to man"; President Reagan's labeling 1983 as the Year of the Bible; and the Mayflower Compact. [The case is currently on appeal before the Supreme Court with a companion case, Van Orden v. Perry.} It must be understood that hostility toward religious expression in the public square often results from good faith attempts by public officials to follow existing Supreme Court Establishment Clause precedents. Most notably, the Supreme has ruled that state actors may not "endorse” religion over irreligion (see, for example, Santa Fe Independent School District v. Doe (2000)-prohibiting a Texas public school district policy that permitted, but did not require, student-initiated and student-led prayer at high school football games). The Court has failed to set forth clear guidelines to explain what constitutes an impermissible "endorsement" of religion. Public officials, accordingly, in an effort to prevent litigation, have an incentive to suppress all religion speech, as any religious speech in the public square might be perceived by some to constitute statesponsored "endorsement" of religion. Leading Supreme Court decisions that have been hostile to religious expression in the public square include: Stone v. Graham (1980)—striking down a Kentucky law that required public schools to post the Ten Commandments. Wallace v. Jaffree (1985)—striking down an Alabama public school policy that mandated "a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer." Allegheny County v. ACLU (1989)—finding unconstitutional the display of a crèche in a county courthouse because it was not surrounded by other, more secular displays. Lee v. Weisman (1992)—prohibiting school sponsored religious benedictions and invocations at public high school and middle school graduations. Santa Fe Independent School District v. Doe (2000)—prohibiting a Texas public school district policy that permitted, but did not require, student-initiated and student-led prayer at high school football games. c. Can you provide examples of organizations that actively litigate or file amicus briefs or otherwise advocate views contrary to freedom of religious expression in the public square? The American Civil Liberties Union and Americans United for the Separation of Church and State frequently introduce and/or support litigation that encourages and results in hostility toward religious expression in the public square. 2. Do you believe the Equal Access Act of 1984 is working well? I have not closely studied the Equal Access Act of 1984, and thus will refrain from commenting on how well it is working. Response to Questions of Senator Edward M. Kennedy By Vincent Phillip Muñoz Senate Judiciary Hearing Hostility to Religious Expression in the Public Square" 23 June 2004 The questions request my views on the "legal requirements applicable to religious organizations." Let me make clear that my responses are in reference to the constitutional limitations imposed by the First Amendment's Establishment and Free Exercise Clauses. What is "legally required" (e.g. by State or Federal law) is different from what is "constitutionally allowed." As my testimony focused on the original meaning of the First Amendment's religion clauses, my answers will focus on the requirements and prohibitions imposed by the Constitution. 1. In your view, may the government directly fund a church or other religious institution? The First Amendment's protection of religious liberty has traditionally been understood to prohibit direct government funding of churches or religious institutions as such. An example of a policy that would clearly violate the First Amendment would be a federal law that offered grants to churches specifically to pay for the construction of houses of worship or the payment of clergy. Stated simply, to pass constitutional muster, government funding must, at minimum, be tied to a “secular legislative purpose." 2. Do you believe that it is permissible for the government to fund religious programs? If so, under what circumstances? The Constitution's Establishment Clause and Free Exercise Clause do not prohibit religious organizations from participating along with non-religious organizations in government-funded programs. To pass constitutional muster, all government programs must have a non-religious legislative purpose (e.g. civic education, reduction of poverty, etc.). As long as faith-based organizations' participation in government-funded programs support the secular purpose aimed at by legislation, they may participate in such programs. The participation of faith-based organizations in such programs does not, de facto, make such programs inherently religious or constitutionally suspect. |