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expression..." In doing so, I hope you will have hearings on the implications of denying American citizens tax-funded jobs based solely on their religious faith. While I support many parts of the Administration's faith-based initiatives, I strongly disagree with the provisions that make it legal for hiring and firing decisions for public jobs to be based solely on one's religious beliefs. No American citizen should have to pass someone else's private religious test to qualify for a tax-funded job. In my opinion, the federal government should not be in the business of subsidizing religious discrimination with tax dollars. That type of serious religious discrimination deserves this Committee's attention.

Also, on the issue of discrimination, as a Christian I revere the Ten Commandments and try to live by them every day, but, I hope you will address these questions: Do we really want politicians and public officials deciding which specific religious doctrine or beliefs should and should not be prominently placed in public courthouses and schoolhouses? It's a Pandora's Box. Either all groups, including religious supporters of Islamic militants, Wiccans, the Church of the Creator and others will be allowed to display their religious beliefs on public buildings, or we can follow the Chinese government's model where politicians have the power to decide which religious doctrine receives official government approval. Which will it be?

3. Let's debate this vital and complicated issue of church-state separation with respect for those with differing viewpoints. I have great respect for Mr. Towey of the White House Office of Faith-Based Initiatives, but I believe he went too far last week when he defined the church-state debate as a "cultural war." Groups such as the Baptist Joint Committee, Methodists and the American Jewish Committee are strong defenders of church-state separation. Are they guilty of fighting a cultural war against religious expression in the public place? I hardly think so. Even if you disagree with their views, we should respect the fact that these people of faith believe they are fighting to protect religious freedom from government entanglement. I believe Mr. Towey owes many people of faith an apology for suggesting they are involved in a cultural war, in effect, a religious war. As we fight Osama bin Laden and the war on terrorism, let's leave the lexicon of war to our Army generals in Iraq and Afghanistan and keep it out of honest debates on religious freedom here at home. Our nation doesn't deserve the kind of divisiveness that could be caused by putting religious debates in the context of being a war, cultural, religious or otherwise.

This Committee, in announcing and naming this hearing, did not go so far as to describe this debate as war. However, it used loaded phrases such as "hostility to religion" and "hostile to religious expression."

This debate is not about who is on God's side and who is not. Religious critics were dead wrong when they attacked Mr. Madison and Mr. Jefferson two centuries ago and said they were anti-religion because of their belief in church-state separation. Let's not repeat that same mistake today.

In conclusion, the Bill of Rights has never been amended in over two centuries. Especially when it comes to the first freedom-religious freedom-we should move carefully and thoughtfully before we tamper with a system of religious freedom and tolerance that is the model for the world.

It would be ironic to have Americans preaching the principle of church-state separation in Iraq if, here at home, we don't practice what we preach. The American people and the issue of how to best protect religious freedom deserve a thoughtful, reasoned debate.



United States Senate Committee on the Judiciary

Beyond the Pledge of Allegiance: Hostility to Religious Experssion in the Public Square

The Honorable Russ Feingold

United States Senator, Wisconsin

June 8, 2004

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 10 rights guaranteed to every Americans 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 with the title of this hearing - "hostility to religious expression in the public square." I do not think that there is widespread hostility. There may be confusion. There may be some in our country who would like to censor all public expressions of religious faith. There may be others who want to read the Free Exercise Clause in isolation and ignore the Establishment Clause, even to the point of having a state-sponsored religion.

But the fact is that the First Amendment in its entirety has served our nation well and has allowed religious expression to thrive, 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 will 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 in 1993. I thought the Supreme Court 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 that 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 morning, she experienced one such unfortunate episode. But I am very pleased that her case reached the proper result – a result that re-affirms 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 with 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 recognize 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


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

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 look forward to hearing from our witnesses.





"Beyond the Pledge of Allegiance:
Hostility to Religious Expression in the Public Square"

Tuesday, June 8, 2004
Washington, D.C.

MR. CHAIRMAN, I appreciate the opportunity to share with you some thoughts about the place of religion in civil society, and – more particularly – about the protections that our Constitution guarantees to religious expression and activity in the public square.

These are issues of great importance to me as a citizen, as a scholar, and as a teacher. By way of background: I teach and write about the First Amendment at the Notre Dame Law School.1 At Notre Dame, we invite and - we hope - inspire young lawyers to bring their values and religious faith to their studies, and then to carry them into their lives in the law. In our view, we cannot expect young lawyers to think deeply and well about law, justice, and the common good if we tell them to privatize their ideals, or to radically separate their fundamental moral commitments from their law practices. Therefore, we encourage our students to approach both their vocations in the law and their roles as citizens as whole persons. We challenge them to integrate their work, their

1 See, e.g., Assimilation, Toleration, and the State's Interest in Religious Doctrine, U.C.L.A. L. REV. (2004) (forthcoming); American Conversations With(in) Catholicism, MICH. L. REV. (2004) (forthcoming) (reviewing JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY (2003)); The Theology of the Blaine Amendments, 2 FIRST. Amd. L. REV. 45 (2003); Christian Witness, Moral Anthropology, and the Death Penalty, 17 NOTRE DAME J. ETHICS, L. & PUB. POL'Y 541 (2003); The Right Questions About School Choice: Education, Religious Freedom, and the Common Good, 23 CARDOZO L. REV. 1281 (2002); Sectarian Reflections on Lawyers' Ethics and Death-Row Volunteers, 77 NOTRE DAME L. Rev. 795 (2002); Common Schools and the Common Good: Reflections on the SchoolChoice Debate, 75 ST. JOHN'S Law Rev. 219 (2001); A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771 (2001); The Story of Henry Adams's Soul: Education and the Expression of Associations, 85 MINN. L. REV. 1841 (2001); Brown's Promise, Blaine's Legacy, 17 CONST. Comm. 651 (2000) (reviewing JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL Choice, The ConstITUTION, AND CIVIL SOCIETY (1999)); Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 NOTRE DAME L. Rev. 109 (2000); Francis Bacon Takes On The Ghouls: The "First Principles” of Religious Freedom, 3 GREEN BAG 2D 421 (2000) (reviewing JOHN WITTE JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (2000)); School Choice, The First Amendment, and Justice, 4 TEX. REV. L. & POL. 301 (2000) (with Nicole Stelle Garnett).

beliefs, their values, and their activism. We urge them to avoid the temptation to “check their faith at the door" of their professional and public lives.

With respect to the matter before us today - i.e., discrimination by government against religiously motivated expression and action - I begin with a fundamental, bedrock premise: As President Clinton put it, nearly ten years ago, "religious freedom is literally our first freedom." In other words, the freedom of religion was central to our Founders' vision for America.3 The Framers did not always agree about precisely what the "freedom of religion" meant, but they knew that it mattered.

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We should remember, therefore, that the protections afforded to religious freedom in our constitutional text and tradition are neither accidents nor anomalies. They are not, as one scholar once claimed, an "aberration in a secular state.' Quite the contrary: In our traditions and laws, religious freedom is cherished as a basic human right and a nonnegotiable aspect of human dignity. Our Constitution does not regard religious faith with grudging suspicion, or as a bizarre quirk or quaint relic. Rather, as my former colleague, Dean John Garvey, once observed, our laws protect the freedom of religion because "religion is important" and because, put simply, "the law thinks religion is a good thing."

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Now, from all this, it follows that our laws and constitutional doctrines should regard governmental restrictions upon religious expression – and not religious expression itself with sober skepticism. In a free society like ours, the “[t]he calculus of religious liberty.. . is determined" not by the extent to which governments manage to confine religious expression to the privacy of homes and churches, but instead "by the measure of religiously motivated thought and action that is insulated from public authority."


Now, MR. CHAIRMAN, as I am sure you are aware, the law books, newspapers, weblogs, and talk shows are rich with stories of public officials who have neglected, or lost sight of, these fundamental premises of the American experiment. They have turned things upside down by treating citizens' public religious expression with suspicion, and even hostility, rather than with evenhandedness and respect.

I will mention here just a few examples, because I know you have heard and will hear about many more: Not long ago, Robert and Mildred Tong sought to participate in a

2 President William Jefferson Clinton, Religious Liberty in America (July 12, 1995). See also, e.g., THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH and State in AMERICA TO THE Passage of the FIRST AMENDMENT (1986); Michael W. McConnell, Why Is Religious Liberty the "First Freedom”?, 21 CARDOZO L. REV. 1243 (2000).


4 Suzanna Sherry, Enlightening the Religion Clauses, 7. J. CONTEMP. LEGAL ISSUES 473, 477 (1996). JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? 42, 57 (1996).

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