[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
RELIGIOUS LIBERTY AND H.R. 2802, THE FIRST AMENDMENT DEFENSE ACT (FADA)
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JULY 12, 2016
__________
Serial No. 114-121
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Katie Bailey, Staff Director, Subcommittee on Government Operations
Willie Marx, Clerk
C O N T E N T S
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Page
Hearing held on July 12, 2016.................................... 1
WITNESSES
Hon. Mike Lee, U.S. Senator from the State of Utah
Oral Statement............................................... 5
Hon. Raul Labrador, U.S. Representative from the State of Idaho
Oral Statement............................................... 8
Mr. Barney Frank, Former U.S. Congressman, Massachusetts Fourth
Congressional District
Oral Statement............................................... 11
Written Statement............................................ 14
Mr. Kelvin Cochran, Former Fire Chief, Atlanta Fire Department
Oral Statement............................................... 18
Written Statement............................................ 21
Mr. Jim Obergefell, Appearing in Personal Capacity
Oral Statement............................................... 26
Written Statement............................................ 28
Ms. Kristen Waggoner, Senior Counsel and Senior Vice President,
U.S. Legal Advocacy, Alliance Defending Freedom
Oral Statement............................................... 31
Written Statement............................................ 33
Ms. Katherine Franke, Isidor and Seville Sulzbacher Professor of
Law, and Director, Center for Gender and Sexuality Law,
Columbia School of Law
Oral Statement............................................... 43
Written Statement............................................ 44
Mr. Matthew J. Franck, Appearing in Personal Capacity
Oral Statement............................................... 63
Written Statement............................................ 67
APPENDIX
United States District Court for the Southern District of
Mississippi Northern Division Opinion on the case: Rims Barber;
Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony
Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson;
Dorothy C. Triplett; Renick Taylor; Bandilyne Mangum-Dear;
Susan Mangum; Joshua Generation Metropolitan Community Church;
Campaign for Southern Equality; and Susan Hrostowski V. Phil
Bryant, Governor; Jim Hood, Attorney General; John Dais,
Executive Director of the Mississippi Department of Human
Services; and Judy Moulder, State Registrar of Vital Records,
Entered by Ranking Member Cummings............................. 116
Written Statement of David Stacy, Government Affairs Director,
Human Rights Campaign, Entered by Ranking Member Cummings...... 149
A letter from 50 Organizations titled, ``Cancel July 12 Hearing
on Discriminatory Anti-LGBT Bill'', Entered by Ranking Member
Cummings....................................................... 155
A letter from Stosh Cotler, CEO, Bend the Arc Jewish Action, to
Chairman Chaffetz and Ranking Member Cummings, Entered by
Ranking Member Cummings........................................ 158
A letter from David Stacy, Government Affairs Director, Human
Rights Campaign, to Chairman Chaffetz and Ranking Member
Cummings....................................................... 159
Written Statement from Carmel Martin, Executive Vice President,
Policy, Center for American Progress........................... 185
Letter from Karin Johnson, Director, Washington Legislative
Office, and Ian Thomson, Legislative Representative at the
American Civil Liberties Union to Chairman Chaffetz and Ranking
Member Cummings................................................ 191
National LGBTQ Task Force Action Fund Testimony Regarding the
First Amendment Defense Act from Candace Bond-Theriault, ESQ,
LL.M., Policy Counsel, Reproductive Rights, National LGBTQ Task
Force, Entered by Ranking Member Cummings...................... 195
Testimony of Maggie Garrett, Legislative Director of Americans
United for Separation of Church and State, Entered by Ranking
Member Cummings................................................ 203
Statement of the National Center for Lesbian Rights, Entered by
Ranking Member Cummings........................................ 209
Letter from Gregory T. Angelo, President of Log Cabin
Republicans, to Chairman Chaffetz and Ranking Member Cummings,
Entered by Ranking Member Cummings............................. 213
Letter from Emily J. Martin, Vice President of Workplace Justice
& Health, at the National Women's Law Center, to Chairman
Chaffetz and Ranking Member Cummings, Entered by Ranking Member
Cummings....................................................... 214
A letter from Representative Barry Loudermilk, Representative
Lynn Westmoreland, Representative Tom Price, Representative
Austin Scott, and Representative Jody Hice to Kasim Reed, Mayor
of Atlanta, Entered by Representative Jody Hice................ 216
H.R. 2802 Bill Text, Entered by Chairman Chaffetz................ 218
RELIGIOUS LIBERTY AND H.R. 2802, THE FIRST AMENDMENT DEFENSE ACT (FADA)
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Tuesday, July 12, 2016
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:04 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Duncan, Jordan, Walberg,
Amash, Gosar, DesJarlais, Farenthold, Lummis, Massie, Meadows,
Mulvaney, Buck, Walker, Blum, Hice, Russell, Carter, Grothman,
Hurd, Palmer, Cummings, Maloney, Norton, Lynch, Connolly,
Cartwright, Duckworth, Kelly, Lawrence, Lieu, Watson Coleman,
Plaskett, and Lujan Grisham.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order. And without objection,
the chair is authorized to declare a recess at any time.
I thank you all for being here. This is an important topic.
It is an important subject. I know we don't necessarily all
agree and see it the same way. But that is why we have vibrant
discussion. That is what we do in this country is we talk about
it in a professional way, in a civil way, and we have this
discussion.
And so I want to thank the witnesses. We have done
something that is unprecedented, and a number of witnesses that
the Democrats have asked for are all here. We have a rather
large and distinguished panel. We are going to have a good and
vibrant discussion.
I did notice when we came in that there were a number of--
at least a few signs and whatnot. We are responsible to keep
the rules and decorum. If you want to show off those signs and
wave them and do all you want, you can do that right now, but
as we get going during the hearing, I would ask that you please
refrain from doing so. It is part of the way we have a good,
fair discussion on these issues. So if you have those signs,
you are free to show them right now, wave them all you want,
but to do so during the hearing while somebody is speaking is
not the level of respect that we would ask from everybody on
both sides of this important issue.
So protecting the sacred right to freely exercise your
religion is the First Amendment to the Constitution for a
reason. It has been and still is a fundamental part of the
foundation of our nation.
The First Amendment Defense Act, or FADA, has some very
important goals. Legislation is intended to ensure the tax-
exempt status of religious institutions is not unfairly
threatened. This was an issue acknowledged by the solicitor
general during arguments before the Supreme Court. When asked
by Justice Alito whether a religious institution could lose its
tax-exempt status if it opposed same-sex marriage, the
solicitor general responded, ``I don't think I can answer that
question without knowing more specifics, but it is certainly
going to be an issue. I don't deny that, Justice Alito, it is
going to be an issue.''
And I do believe that this is an issue that needs to be
addressed. FADA attempts to ensure that no one is discriminated
against based on how they view marriage. I am an original
cosponsor of this piece of legislation. There have been some
updates to this legislation. So if you are looking at the older
piece of legislation, I would highly encourage you as swiftly
as you can to go online at Raul Labrador, who is testifying who
is the House sponsor of this bill has posted this online. And I
would encourage anybody who is in the listening audience to
look at that most recent version of this important bill.
I recognize the sensitive nature of this, the emotion that
is attached to it, but I hope that today doesn't divide into
too much of a politically charged discussion about what divides
us. But it is important for me and my vantage point, just
because you are for one thing doesn't mean you are against
another thing, and that is an important distinction.
It is also important to me that we have the right to freely
exercise religion. Religion is part of the foundation of this
nation. Religion is part of what so many Americans believe in.
But it is their choice to believe in it. It does not mean I
want to hurt or strip somebody else of their rights, their
pursuit of happiness.
As Members of Congress, we have a responsibility to engage
in a way that is consistent with what the First Amendment
teaches us, to be open-minded and respectful of all Americans'
experiences and beliefs, especially when they disagree. And
today we have that opportunity to have this vibrant discussion
and lead by example.
Chairman Chaffetz. We are fortunate to have the two
sponsors of FADA that are here. Senator Lee is the Senate
sponsor, a colleague of mine from the great State of Utah. We
also have Representative Raul Labrador, who is the House
sponsor, who is here to share some things.
It is consistent with House practice we typically in the
past have allowed House and Senate Members to come present on a
separate panel and then, given the pressures and the few days
that we have remaining before the recess period here, we
typically will excuse them so that they can continue on with
their duties and responsibilities. Given the second day here,
we have a lot of hearings and a lot of other business
happening, so we are going to ask them that they give their
opening statements. Then we will excuse them, but we will
continue with the rest of the panel for their opening
statements and their questions along the way.
It is an important discussion. I am glad we are having it.
I appreciate them introducing this bill. I now recognize the
ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Chairman, today is a terribly sad day for the LGBT
community and for all of America. Today is the 1-month
anniversary of the deadly shooting spree at the Pulse nightclub
in Orlando, Florida, that killed 49 people and injured dozens
of others, 1 month ago.
Throughout the day today there will be commemorations
across the country. In fact, Members of Congress are holding a
vigil this evening on the steps of the United States Capitol.
With everything going on in this country right now, these
horrific shootings of gay people, black people, police
officers, what we should be doing is coming together as a
nation, not tearing each other apart, which is exactly what
this bill does.
As I sit here now, it is difficult to imagine a more
inappropriate, a more inappropriate day to hold this hearing.
Even if you truly believe that being gay is morally wrong or
that people should be allowed to discriminate against gay
people, why in the world would you choose today of all days to
hold a hearing on this discriminatory legislation?
To say that this hearing is politically tone-deaf is the
understatement of the year. And I do not believe that the
chairman did this intentionally. He may not have even realized
before the week that today is the 1-month anniversary. But we
asked repeatedly to cancel today's hearing or at least postpone
it. And dozens of groups and other stakeholders made the same
request in letter after letter after letter to the committee,
all without success.
Mr. Chairman, I ask unanimous consent to place into the
record the letters and statements from 77 groups and
organizations relating to today's hearing.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cummings. It is actually 80, Mr. Chairman. We got three
more.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cummings. Thank you. I also ask unanimous consent to
place into the record a letter opposing this legislation signed
by more than 3,000 faith and clergy from across the country.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cummings. At any rate, we are here now. For the record,
I do want to thank the chairman for agreeing to our request to
have three minority witnesses on the panel. I truly appreciate
it. It is much more balanced, and I commend the chairman for
agreeing to our request.
We are honored to have with us today our former colleague
and distinguished friend in the House of Representatives,
Congressman Barney Frank.
We are also very honored to have Jim Obergefell, the lead
plaintiff in the Supreme Court's recent case legalizing same-
sex marriage. He has a very important and poignant story, and
we thank him for being here today.
Finally, our third witness is Katherine Franke, a
nationally renowned legal expert and director of the Center for
Gender and Sexuality Law at Columbia Law School. And I thank
you as well.
I would like to address my remaining comments to Senator
Lee and Representative Labrador, the two Members of Congress
who are here today sponsoring this legislation in the Senate
and the House. I had hoped that we would have had the
opportunity to ask you questions about why you believe your
bill is a good idea, but now I understand that you will not be
taking any questions from members of the committee. So I would
like to ask just one question now so that you might address it
in your opening statement.
I am the son of two Pentecostal ministers, and I strongly
believe that people have the right to freely express their
religious beliefs. Senator Lee and Congressman Labrador, my
question for you is simply this: What is the difference between
discriminating against someone who is black and someone who is
gay? For centuries in our nation a black person could not marry
a white person. Those in power justified this doctrine on
religious grounds, and they codified it in our laws. But in
1967 the Supreme Court changed all that in the case of Loving
v. Virginia. The Court held that this discrimination is
unconstitutional.
Now, we have a similar situation with same-sex couples. For
centuries, gay people could not marry. This discrimination was
also justified on religious grounds, and it was also codified
in our statutes. But last year, nearly 50 years after the
decision in Loving v. Virginia, the Supreme Court ruled that
this discrimination is also unconstitutional. I acknowledge
that this change is a major change, and this change is very
difficult. But the paramount lesson we have learned over our
nation's history is that if we are separate, we will never be
equal. That is the lesson we should be reinforcing across our
great country every single hour of every single day, especially
now. And that is the lesson I hope our committee takes to heart
today. And with that, Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman. I will hold the
record open for 5 legislative days for any members who would
like to submit a written statement.
Let us now recognize our panel of witnesses. We are pleased
to welcome the Honorable Mike Lee. He is a United States
Senator from the State of Utah and author of the First
Amendment Defense Act in the United States Senate.
We also have the Honorable Raul Labrador. He is a United
States Congressman from the First Congressional District of
Idaho and the author of the First Amendment Defense Act in the
House of Representatives.
We are pleased to have the Honorable Barney Frank, former
United States Congressman from the Fourth Congressional
District of Massachusetts. I had the pleasure of serving with
Mr. Frank while he was here. I overlapped a little bit, and
pleased, sir, that you would join us here for this important
discussion.
We are going to go out of order here a little bit because
we are going to have Mr. Hice--actually, why don't we recognize
Mr. Hice to introduce Mr. Cochran at this point.
Mr. Hice. Thank you, Mr. Chairman. It is a great honor that
I have to introduce and welcome former fire chief of Atlanta
Kelvin Cochran. Thank you for joining us today, sir, on this
hearing on religious liberties.
Chief Cochran served for roughly 34 years, an extremely
decorated career. He was, for example, brought to New Orleans
right after the Hurricane Katrina and the devastating effects
there and did an outstanding job. He also held positions with
the International Association of Fire Chiefs and was appointed
by President Obama as a U.S. fire administrator between 2008
and 2010. And, Chief Cochran, we have had the opportunity to
serve and do different things for the last couple of years, and
I just want to say, first of all, thank you for your service to
our country. Thank you for your willingness to be here today,
and it is a great honor to introduce former Atlanta Fire Chief
Kelvin Cochran. Thank you.
Chairman Chaffetz. I thank the gentleman. We thank Mr.
Cochran for being here as well.
We have Mr. John Obergefell, who is appearing in his
personal capacity. He is a plaintiff in the landmark Supreme
Court marriage equality case Obergefell v. Hodges and the
coauthor of Love Wins. We thank you, sir, for being here as
well.
Ms. Kristen Waggoner, who is senior counsel and senior vice
president of the United States Legal Advocacy at the Alliance
Defending Freedom. In this role Ms. Waggoner oversees a team
specializing in civil liberties legislation and education. And
we appreciate you being here.
Ms. Katherine Franke is the Isidor and Seville Sulzbacher
professor of law and director of the Center of Gender and
Sexuality Law at the Columbia School of Law and the faculty
director of the Public Rights/Public Conscience Project. I hope
I pronounced all of that properly. I was trying. But thank you,
Ms. Franke, for being here with us as well.
And we have Mr. Matthew Franck, a lot of Franks on the
panel, but Mr. Matthew Franck, a Ph.D. who is appearing in his
personal capacity. In his professional capacity, Mr. Franck is
the director of the William E. and Carol G. Simon Center on
Religion and the Constitution at the Witherspoon Institute at
Princeton University. And so we thank you for being here as
well.
Pursuant to committee rules, all non-Members are to rise
and raise their right hand. It is optional for Members of
Congress in this portion of it, but we would ask that everybody
on the panel please rise and raise your right hand.
[Witnesses sworn.]
Chairman Chaffetz. Thank you. You may be seated. Let the
record reflect that the witnesses answered in the affirmative.
We are now going to recognize each person for 5 minutes,
again, with Senator Lee and Congressman Labrador, we thank you
for being here. We will recognize you and then, please, you are
excused to deal with the business of Congress. But we will
start first with Senator Mike Lee.
STATEMENT OF HON. MIKE LEE, A UNITED STATES SENATOR FROM THE
STATE OF UTAH
Senator Lee. Chairman Chaffetz, Ranking Member Cummings,
and members of the Judiciary Committee, thank you for holding
this hearing and thank you for giving me the opportunity to
come and testify before this hearing in support of the First
Amendment Defense Act. It's an honor to be here and to
participate with my fellow witnesses on this important
discussion.
I'd like to preface my remarks today by issuing a challenge
to all of those who were involved in this debate here on
Capitol Hill and, for that matter, across the country, myself
included. As we engage in dialogue with one another about this
topic, this topic which happens to be highly charged, let's
commit to treating one another with respect, with kindness, and
with decency, as fellow citizens rather than as adversaries.
Let's insist on hashing out our honest differences honestly.
It's too easy to assume the worst in those with whom you
disagree, to impugn their motives so you don't have to listen
to their arguments. Let's be better than that today. We all
came here to talk, but let's not forget to listen just because
we're here to talk.
And with that, I'm going to spend a few more minutes
talking now.
The most important feature of this legislation, which I was
proud to introduce in the Senate, the First Amendment Defense
Act, is its exceptionally narrow scope. If enacted, the bill
would do one thing. It would do one thing only, just one thing.
That is, it would prevent the Federal Government from
discriminating against particular disfavored religious beliefs.
There are other forms of discrimination in the world, for
instance, the discrimination that may occur between two private
parties, two people who are not the government. But these are
entirely different issues, and those types of actions are
completely unrelated to and unaffected by the First Amendment
Defense Act. This bill deals exclusively with a particular but
a rather pernicious form of discrimination, one in which the
Federal Government could single out certain religious beliefs
for disfavored treatment.
The bill is so narrowly focused because it is a targeted
response to particular legal developments that have taken place
just in the last year or so. In the wake of last year's
decision by the Supreme Court in the same-sex marriage case,
Obergefell v. Hodges, many millions of Americans were left
wondering: What does this mean for me? What does this mean for
me personally and for my family, for how I live my life? There
were many who wondered what the Court's decision might mean for
countless institutions that play a significant role in our
civil society, including churches and synagogues; charities and
adoption agencies; counseling services and religiously
affiliated schools, colleges, and universities that are made up
of American citizens who believe marriage is the union between
one man and one woman. For instance, now that the Supreme Court
had discovered a constitutional right to same-sex marriage,
would a school that holds the belief that marriage is the union
of one man and one woman be in danger of losing its tax-exempt
status? Would it be deemed no longer performing a charitable
function simply because it had that religious belief?
More than one year after the Supreme Court's ruling in the
Obergefell case, these questions remain unanswered. On the one
hand, the Court's majority opinion in the Obergefell case
reiterated the meaning of religious liberty that has always
been understood in America when it stated, ``The First
Amendment ensures that religious organizations and persons are
given proper protection as they seek to teach the principles
that are so fulfilling and so central to their lives and
faiths.''
But on the other hand, there was the ominous exchange
referred to by Chairman Chaffetz a few moments ago between
Supreme Court Justice Samuel Alito and Solicitor General Donald
Verrilli during oral arguments in that case that seemed to
suggest that the Obama administration would be comfortable with
the notion that the IRS could revoke the tax-exempt status of
religious institutions, including schools, colleges, and
universities, that maintain the traditional definition of
marriage.
The First Amendment Defense Act is a very narrow and very
targeted legislative response to these questions, these still-
unanswered but nonetheless very important questions. The bill
reaffirms the letter of the First Amendment. It also
strengthens the spirit of the First Amendment. And it does so
by stating unequivocally that the Federal Government may not
revoke or deny the Federal tax exemption or any grant or
contract, accreditation, license, or certification to any
individual or to any institution based on a religious belief
about marriage.
The First Amendment protects each of us from punishment or
reprisal from the Federal Government for living in accordance
with our deeply held religious and moral convictions. Adhering
to these convictions should never disqualify an individual from
receiving Federal grants, contracts, or tax status. What an
individual or an organization believes about marriage is not
and never should be any of the government's business, and it
certainly should never be part of the government's eligibility
rubric in distributing licenses, awarding accreditations, or
issuing grants.
And the First Amendment Defense Act simply ensures that
this will always be true in America, that Federal bureaucrats
will never have the authority, the discretion to require those
who believe in the traditional definition of marriage to choose
between living in accordance with those beliefs on the one hand
and on the other hand maintaining their occupation, their tax
status, or their eligibility to receive and obtain grants,
licenses, or contracts.
The First Amendment Defense Act is absolutely critical to
the many charitable and service organizations in this country
whose convictions about marriage are fundamental to their work
and to their mission. Guaranteeing the full protection of these
organizations' First Amendment rights will ensure that faith-
based adoption agencies are not forced to discontinue their
foster care and adoption services on account of their belief
that every child needs a married mother and father. It will
protect religiously affiliated schools, colleges, and
universities from losing their accreditation or being compelled
to eliminate housing options for students. And it will protect
individuals, regardless of their beliefs about marriage, from
being deprived of eligibility for Federal grants, licenses, and
employment simply because of their deeply held convictions.
Now, you may hear tall tales and in some cases perhaps
outright falsehoods about this bill, about this legislation
we're discussing today. Some may suggest that the First
Amendment Defense Act, or FADA as we sometimes call it, would
give private businesses a license to violate the
antidiscrimination laws with impunity. This is just not so. It
isn't true. The bill does not preempt, negate, or alter any
antidiscrimination measures or civil rights laws, State or
Federal. To be clear, this bill does not take anything away
from any individual or any group because it does not modify any
of our existing civil rights protections.
The First Amendment Defense Act does not allow Federal
workers or contractors to deny services or benefits to same-sex
couples, and it does not allow hospitals to refuse medically
necessary treatment or visitation rights to individuals in
same-sex relationships.
I invite everyone within the sound of my voice to read the
bill so you can see in plain English, in black and white that
the First Amendment Defense Act does not do any of these
things. It simply affirms all Americans' God-given,
constitutionally protected right to live according to their
religious or moral convictions without fear of punishment by
the government, especially when it comes to operating churches,
schools, charities, or businesses.
It recognizes that religious liberty in America has always
meant that the government's job is not and can never be to tell
people what to believe or how exactly to discharge their
religious duties, but rather to protect the space for all
people of all faiths and people of no faith at all to seek
religious truth and to order their lives accordingly.
Questions surrounding marriage today are difficult, and
reasonable people of good faith will reach different judgments
about how best we can protect religious liberty. But the First
Amendment must remain our lodestar. And I believe any
differences of opinion can be constructively worked out, even
and especially as to particular provisions of this bill if our
shared concern remains preserving the American tradition of
religious liberty. I hope it is.
Thank you.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the Representative from Idaho, Mr.
Labrador, for 5 minutes.
STATEMENT OF HON. RAUL LABRADOR, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF IDAHO
Mr. Labrador. Good morning, Chairman Chaffetz and Ranking
Member Cummings. Thank you for holding this hearing today and
allowing me to testify on my bill, the First Amendment Defense
Act.
From its very beginning, our nation has been home, harbor,
and refuge to a wide range of religious beliefs. No other
country has been as tolerant and as accommodating of religion
and religious people as America.
American tolerance has been a vital source of our strength
for our people and for the Nation. Religious pluralism is a
hallmark of our nation's promise. It is what continues to make
the land of the free so attractive to religious refugees and
earnest seekers from around the world whose humble wish is the
free exercise of religion.
It is unsurprising then that when it came time for our
Founding Fathers to list those rights most fundamental to a
free and fulfilled people, the freedom of religion was
prominently placed before the rest. I am grateful for the
opportunity to testify before you today because I fear that
this fundamental freedom is threatened.
Over the past several years, we have seen a shift away from
our nation's long-held beliefs in the value of religious
freedom, particularly where an individual's religious belief or
moral conviction that marriage is the union of one man and one
woman is concerned. This growing intolerance has spawned a
climate of intimidation in the public sphere.
I have worked with Senator Lee for the past 3 years on the
First Amendment Defense Act to protect individuals, churches,
and other religious institutions, including institutions of
higher education, from government discrimination simply because
they exercise what, until recently, we as Americans believed to
be unalienable, self-evident right. No American should be
threatened or intimidated because of their belief in
traditional marriage.
Critics of the bill have falsely claimed that the First
Amendment Defense Act would give license to discriminate
against the LGBT community. It has never been our intention to
give anyone a so-called license to discriminate. In fact,
Senator Lee and I have spent countless hours listening to both
supporters and opponents of the bill in order to draft the
legislation in a way that religious liberty is protected
without taking anything away from anyone. Our bill does not
take away anybody's rights, to answer Mr. Cummings' question.
It just attempts to enshrine in religious liberties--to
enshrine in law religious liberties long-believed to be
protected.
Today, the OGR Committee is considering a revised version
of the First Amendment Defense Act, which protects those who
stand for traditional marriage and same-sex marriage alike, and
we have made these amendments after speaking to countless
people who have both opposed and supported this bill.
All Americans should be free to believe and act in the
public square based on their beliefs about marriage without
fear of government penalty. The First Amendment Defense Act
simply ensures the fundamental right to exercise one's religion
by prohibiting the Federal Government from denying or excluding
a person from receiving a Federal grant, contract, loan,
license, certification, accreditation, employment, or other
similar position or status based on the exercise of that
religious or moral conviction.
Detractors will have you believe that the First Amendment
Defense Act would allow hospitals to refuse care to a same-sex
couple or turn away a single pregnant mother. This claim is
completely false. The First Amendment Defense Act expressly
excludes hospitals, clinics, hospices, nursing homes, or other
medical or residential custodial facilities with respect to
visitation, recognition of a designated representative for
health care decision-making, or refusal to provide medical
treatment necessary to cure an illness or injury.
It has also been hypothesized that this bill would
authorize Federal Government employees to refuse to process tax
returns, visa applications, Social Security checks, or passport
applications of same-sex married couples. The bill specifically
excludes Federal employees acting within the scope of their
employment, and thus does not permit government employees to
refuse services or benefits in any circumstance.
However, the pendulum of tolerance must swing both ways. An
employee like former Fire Chief Kelvin Cochran acting outside
the scope of their employment should not lose their job because
of their beliefs they hold and because of their practices.
Finally, the claim that FADA would allow homeless shelters
or landlords to turn away same-sex married couples is again
false. This bill does not alter or modify any civil rights
protections or negate any Federal antidiscrimination laws
already in existence. And I repeat because I think this needs
to be heard, the bill does not alter or modify any civil rights
legislation.
In addition, the bill specifically excludes Federal for-
profit contractors, which are usually the contractors that are
building these buildings, acting within the scope of their
Federal contract from refusing any services or benefits.
As I have had conversations with people and read the many
comments about this bill in preparation for this hearing, one
thing has become obvious to me, that there is a gross
misunderstanding as to the intent and purpose of this bill. I
have met with several opponents of the bill to understand their
concerns, and I have read the testimony of many of the
witnesses testifying today, and it has become painfully clear
that they haven't even read the bill.
I say to all detractors of this very measured piece of
legislation just read it, please. Please read the bill that
this committee is considering today before you make statements
about the legislation. And to the media that's here today, I
ask the same. Please read the bill. We have gone through
painstaking time and effort to make sure that this bill takes
nothing away from any individual, but in a measured way we
protect the rights enshrined in the Constitution.
Many people claim that this law is unnecessary. Well, I
disagree, and you will see why it's necessary because of the
testimony and many of the statements made here by the
opposition. While Americans are free to structure their
personal relationships as law permits, the Federal Government
should not and must not use its muscle or might to threaten or
target individuals and organizations who hold traditional
religious views.
The need for religious liberty hits close to home for me. I
come from a religious tradition that in the no--not-too-distant
past experienced intolerance, suffered discrimination, and
fortunately, survived an official extermination order at the
hands of the government. Freedom of religion is not only the
right to worship in private, but it is also the right to
publicly exercise our religion without fear of government
interference.
In the words of James Madison, ``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. This right is in its nature an unalienable right.''
This right, this freedom is in jeopardy today.
We live in a time where some strident voices call for
tolerance but only for those with whom they agree. Intolerant
tolerance really isn't tolerance at all. The First Amendment
Defense Act is a reasonable, rational, and important step
forward in the protection of religious beliefs and moral
convictions regarding marriage. You will hear today various
examples of how religious freedom is currently under attack. My
bill is designed to protect the First Amendment's guarantee of
the exercise of these freedoms.
Thank you, Mr. Chairman. Thank you, Mr. Cummings. And thank
you, Committee, for listening to these words.
Chairman Chaffetz. We thank the gentleman.
We will now recognize Congressman Frank. You are now
recognized for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF BARNEY FRANK
Mr. Frank. Thank you. Mr. Chairman and members of the
committee, let me say as he's leaving room that I was glad to
hear Mr. Labrador stress the importance of the American
tradition of welcoming people, non-Americans to come to our
shores to exercise religious freedom, and I was particularly
pleased that, unlike some others, he did not exclude Muslims
from that tradition. I think that is an important principle of
which we, I hope, will continue to be proud.
I'm sorry, was that a gavel? I ----
Chairman Chaffetz. No, no, no.
Mr. Frank. Oh, I ----
Chairman Chaffetz. They were adjusting the mic, and it
pulled out the cord and it made a sound. Sorry.
Mr. Frank. I am still gavel-conscious when I'm here.
[Laughter.]
Mr. Frank. The next thing I want to say is that I
appreciate this telling us that we should all be nice, and I
would reciprocate by saying, yes, okay, how about being nice to
me? I was here for 32 years. We used to say that we don't take
things personally, and most of the time we don't, but, Mr.
Chairman, this is very personal. This is a legislative
enactment that essentially says that the fact that I live in a
loving committed marriage with another man is somehow a threat
to other people's freedom. And the Congress has to single that
out to act against it.
And let me make this point. You're talking about
mischaracterization. This is not a bill to protect religious
liberty in general. It singles out one particular religious
tenet, the notion that same-sex marriage is morally wrong, oh,
and also thrown in that non-marital sex is wrong. There are a
whole lot of religious tenets that are under attack, so this
one singles it out.
And when the Senator said, well, let's be kind and
respectful, I don't feel respected. I don't feel that this is
kind to single out what I do. And I've got to say, Mr.
Chairman, I got married when I was still here. I don't think
any of the people with whom I served, some of whom are still
here, were in any way inconvenienced or compromised or that
their religious freedom was impinged. And I don't understand
why you have to single out my marriage as something against
which people have to be protected. And single out is what you
do.
And as far as tolerance is concerned, I want to be very
clear. I think people who are here shared with me I have never
been overly sensitive to people's opinions. Maybe the opposite
is the case.
[Laughter.]
Mr. Frank. But when there was a bill to outlaw the
practices of one of the outstanding homophobic bigots of our
time, that nut from Kansas who used to go and picket cemeteries
because he said that's the gay people's fault, I was one of
three Members of the House who voted against that. Three of us,
Ron Paul, Dave Wu, and I voted to allow this bigot to continue
to demonstrate his bigotry. The Supreme Court sided with us.
Any of you were here, you probably voted for that bill who had
been there at the time.
This is not a case of people's right to think what they
think or feel what they feel. This bill--and I will differ
specifically with Mr. Labrador on this--empowers people to take
my tax money and use it to do things and then exclude me and
Jim from its benefit and a lot of other people as well because
Mr. Labrador said with regard to housing, he specifically
wanted to object to that. I spent a lot of my time here working
on affordable housing. We created the Low-Income Housing Trust
Fund. I was glad to do it. Mr. Jordan is not here but his
predecessor Mike Oxley and I worked together on that.
And it says that you can build housing with Federal funds
for low-income renters. A very large number of these, contrary
to Mr. Labrador's view, and I say this because I specialize in
this area, are nonprofits. Nonprofit developers are major
stanchions of housing, and this bill explicitly says that the
Federal Government may not say to a nonprofit developer if you
intend to exclude same-sex married couples, we're not going to
let you use the money to do that so that they can take the
money I pay--I pay taxes, and as some of you will discover, I
pay a lot more taxes now than when I was here ----
[Laughter.]
Mr. Frank.--and you're going to take the tax money I pay
and build housing and say people like me can't live there
because we somehow would be offensive, regardless of our
behavior, and telling us that it won't impinge on any other
existing civil right is meaningless because in much of the
country there is no such rights.
The Supreme Court says we have a right to be married. There
is no Federal legislation and in many States no other
legislation that protects us against discrimination. So the
argument that, oh, you don't have to worry because existing
statutes aren't preempted is irrelevant to many, many Americans
who live in places where there is no such statute.
Also, I was struck--I think it was Senator Lee who said,
well, what about people who administer programs involving care
for children? And they believe that the child is best served by
a marriage with two parents, a mother and a father. Well, if
you believe that and if you believe the child has been
disadvantaged by not having it, how do you morally justify
further disadvantaging that child by denying him or her
benefits? Because that's what this bill allows. It says that if
you are--we can say, hey, the child of a same-sex couple or an
unmarried parent, no, we don't approve of that and we're going
to exclude that, so you punish the child. Nothing in here says
that you cannot do that.
And finally, it would allow State employees--now Federal
employees you exclude from this but State employees are not
covered in the exemptions. A lot of Federal programs are
administered by State employees. So this now leaves it very
much open to the interpretation that State and Federal
programs, unemployment compensation, disability, you can
disapprove of and exclude people like that.
So, Mr. Chairman, I can't say I'm glad that we're having
this hearing. I really resent the fact that you're having this
hearing. You're singling me and a lot of other people out who
don't deserve this from you. We don't deserve the unkindness
and the disrespect that we get.
If you were talking about people generally being protected
because their religious views might be under assault, then
bring out a general bill, but to say that same-sex marriage is
somehow the issue and that people should be allowed to take
Federal money and discriminate against those of us who are in
same-sex marriages, which this bill clearly does in some ways
for nonprofit contractors, for example, it violates a great
principle.
And I'll close with this when people say I'm somehow
assaulting them. I'm not talking about private citizens. I'm
talking about people who decide voluntarily to go after Federal
money. And a great former Member of this body Gus Hawkins said
when he presided over a bill that said you can't take Federal
money and discriminate, if you're going to dip your fingers in
the Federal till, don't complain if a little democracy rubs off
on them. I hope that principle will win out.
[Prepared statement of Mr. Frank follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. I thank the gentleman.
Mr. Cochran, you are now recognized. Make sure your
microphone is on there. There we go. Thank you.
STATEMENT OF KELVIN COCHRAN
Mr. Cochran. Chairman Chaffetz, Ranking Member Cummings,
members of the committee, it's great to be back before
Congress. The last time I was here was when President Barack
Obama nominated me to be the United States fire administrator.
Thankfully, I was unanimously confirmed by the Senate Homeland
Security Committee.
As I sit before you today, as an African-American male with
34 years in public safety, I, like many Americans, have been
heartbroken by the loss of life in the recent events in our
nation. So before my remarks, I'd be remiss not to acknowledge
the sensitivities of the loss of lives felt by the African-
American community, also the sensitivity of the loss of lives
felt in the public safety community and as a result of this
being the 1-month anniversary of the loss of lives in the city
of Orlando, Florida. And I would ask that we all continue to
pray for our nation.
To begin my remarks on this issue today, I was born in
Shreveport, Louisiana, in 1960 at Confederate Memorial
Hospital. I was one of six kids. My father left my mother and
raised all six of us by herself. At 5 years old I heard sirens
outside of our front door of the shotgun house we lived in, and
to my surprise, we opened the door and there was a big red
Shreveport Fire Department fire truck in front of our house
fighting the fire in Ms. Mattie's house across the alley that
we lived in. On that day I was smitten, and I wanted to be a
firefighter when I grew up.
The grownups told us in our neighborhood that in the United
States of America all of our dreams would come true if we
believed in and had faith in God, if we go to school and got a
good education. If we respected grownups and treat the other
children like we wanted to be treated, all of our dreams would
come true.
And in my case they were right. In 1981 I became a
Shreveport firefighter, one of the first African-Americans in
the history of the city of Shreveport to do so. However, I
faced significant discrimination because of my race. There were
designated plates, spoons, and forks for the black
firefighters. At one fire station I had to wash the dishes in
scalding hot water, and captain stood by to make sure that the
water was hot enough to get rid of the germs. There was a
designated black bed for the black firefighters so that the
white firefighters on the other shifts could have the assurance
that they were not sleeping on a bed that was shared by a black
man. And I was constantly faced with a barrage of racial slurs.
However, I believe that in our country if I practiced the
values that I was raised upon that made my dream come true, I
had a chance to overcome those racial barriers, and that
through compassion for people, passion for the work that we
were all called to do, and competence in the work that we all
performed that I would win over my brother and sister
firefighters and would one day be recognized as an equal member
of the Shreveport Fire Department.
In 1999 I became the first African-American for the city of
Shreveport in its history. In 2008 I was honored and humbled to
be appointed as fire chief of the city of Atlanta under the
Honorable Mayor Shirley Franklin. Twenty months later, I was
honored to be appointed to the United States Fire
Administration by the Honorable President Barack Obama.
I was here less than a year and the Honorable Mayor Kasim
Reed came to Washington, D.C., and recruited me back to the
city of Atlanta where I resumed my duties as a fire chief under
his leadership. In 2012, my professional association, the
International Association of Fire Chiefs and Fire Chief
magazine recognized me as the fire chief of the year.
But in 2014, the week of Thanksgiving, my childhood-dream-
come-true fairytale career came to an abrupt end when I was
suspended for 30 days without pay after Atlanta city officials
who disagreed with the Judeo-Christian beliefs about marriage
learned that I mentioned my beliefs in such in a book that I
had written for a Christian men's bible study.
During that suspension, the city launched an investigation
to determine if my religious beliefs caused me to discriminate
against anyone in the LGBT community. That really was a shock
to me. My faith does not teach me to discriminate against
anyone but rather it instructs me to love everyone without
condition and to recognize their inherent human dignity and
worth as being created in the image of God and to lay down my
life if necessary in the service of my community as a
firefighter.
And I would even do it today if it was necessary even in
this very room. In fact, it was because of the discrimination
that I myself suffered that I made a promise that under my
watch if I were ever in charge no one would ever have to go
through the horrors of discrimination that I endured because I
was different from the majority, which is why I created in
Atlanta the Atlanta Fire Rescue Doctrine based upon a
collaborative effort from all the men and women from every
people group within our organization. It was a doctrine that
established a system to provide justice and equity for every
member of the department and every member of the community that
we had served.
Consequently, after concluding its investigation, the city
determined that I had never discriminated against anyone,
including members of the LGBT community. Nevertheless, ladies
and gentlemen, on January the 6th, 2015, I was terminated from
employment from the city of Atlanta. It's unthinkable to me
today as an American that the very faith and patriotism that
caused my childhood dreams to come true and my professional
achievements is what the government ultimately used to bring my
childhood dream come true to an end.
I wrote a book to encourage men, inspire them to fulfill
their God-called purpose as husbands, fathers, and community
leaders. Only a few paragraphs of the 162-page book addressed
teachings, Biblical teachings on marriage and sexuality, versus
taken directly from the Holy Scripture, yet the city of
Atlanta's officials, including Mayor Reed, made it clear that
it was those beliefs that resulted in my suspension, the
investigation, and my termination.
Following my termination, an Atlanta City Council member
made this statement, ``When you're a city employee and your
thoughts and beliefs and opinions are different from that of
the city's, you have to check them at the door.'' The city's
actions do not reflect true tolerance and diversity that has
always been a part of America's history and set us apart from
other nations. Equal rights and true tolerance means that
regardless of your position on marriage you should not--you
should be able to peaceably live out your beliefs and not
suffer discrimination at the hands of the government.
The First Amendment Defense Act would ensure that no
Federal employee who expressed their beliefs about marriage on
their own time face discrimination by the government and face
punishment that it have endured. Please pass this law to ensure
our country remains diverse and truly tolerant. No one deserves
to be marginalized or driven out of their profession simply
because of their beliefs about marriage.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Cochran follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. [Presiding] Thank you, Chief Cochran.
Mr. Obergefell, you are recognized for 5 minutes.
STATEMENT OF JIM OBERGEFELL
Mr. Obergefell. Chairman Chaffetz and the Ranking Member
Cummings, thank you for inviting me to testify today. My name
is Jim Obergefell, and I was the lead plaintiff in the Supreme
Court's historic marriage equality ruling in Obergefell v.
Hodges. June 2015 was a joyous time for me and LGBT people
across the country. The Supreme Court decision extending the
freedom to marry to all loving couples was a landmark
achievement in the long and ongoing struggle for equality under
the law. I was deeply honored to have played a role in helping
same-sex couples win this victory.
June of this year was a time of heartbreak for millions
around the world, including myself. The murder of 49 people and
wounding of 53 others at a gay nightclub in Orlando, Florida,
on June 12 was a devastating tragedy and the worst attack on
the LGBT community in our nation's history.
Today, exactly 1 month after this horrifying event, I am
appearing before this congressional committee to discuss a bill
that would authorize sweeping, taxpayer-funded discrimination
against LGBT people, single mothers, and unmarried couples. I
think that is profoundly sad.
With all due respect to you and the members of this
committee, this hearing is deeply hurtful to a still-grieving
LGBTQ and ally community. It is my opinion that a hearing like
we're having today would have been much better spent in looking
at how best to ensure that no one in this country is subjected
to violence or discrimination based on who they are or whom
they love. Sadly, that is not the focus of today's hearing.
I will explain why I am so strongly opposed to the so-
called First Amendment Defense Act, but I first would like to
share a bit more about myself. I was in a loving, committed
relationship with my partner and eventual husband John Arthur
for almost 21 years. I wish more than anything that John were
still with me today, but he passed away on October 22, 2013,
after a years-long battle with amyotrophic lateral sclerosis,
known as ALS. I was with John, caring for him, at every
difficult stage of his illness.
Losing the most important person in your life is never an
easy experience or one that is free of heartbreak. However,
losing John was made much more difficult by the State of Ohio
because it refused to recognize our marriage. We learned that I
would not be listed on John's death certificate as his
surviving spouse when he died because the State refused to
recognize our marriage for any purpose.
It is difficult to express just how devastating it is to be
told by the State in which you reside and where you were born
that you will not be recognized as the surviving spouse to the
man you loved more than anything and built a life together with
for more than two decades.
We decided to fight back against this injustice. Together
with partners like the ACLU, we began a legal journey that,
sadly, John did not get to see to conclusion. It culminated in
a momentous victory for loving and committed couples across our
country. I know John would have been proud to have a played a
role in this historic legal victory for equality.
As important as it is that same-sex couples like John and I
have the ability to obtain a civil marriage license in any
State of the country, it is also critically important that this
constitutional right is not undermined by proposals, like this
legislation, that would subject loving couples like me and John
and other LGBT people to discrimination.
I understand that the proponents of this legislation argue
that it is necessary to protect churches, clergy, and others
who oppose marriage equality for religious reasons. But the
First Amendment is already clear on this point. Since the
founding of this country, no church and no member of the clergy
has been forced to marry any couple if doing so would violate
their religious teachings. That has not changed since same-sex
couples won the freedom to marry.
Religious liberty is a core American value. Everyone in
this country is free to believe or not and to live out their
faith as they see fit, provided that they do not do so in a way
that harms other people. As I see it, this legislation turns
this value on its head by permitting discrimination and harm
under the guise of religious liberty.
Among this legislation's many potential harms, it could
allow any privately owned business to refuse to let a gay or
lesbian employee take time off to care for a sick spouse even
though that otherwise would violate Federal Family and Medical
Leave laws. This is not the kind of dignity and respect that
the Supreme Court spoke so eloquently in the decision granting
the freedom to marry nationwide last June. What could ever
justify such a discriminatory and harmful action?
Earlier in this hearing, it was stated that the purpose of
the First Amendment Defense Act is to ensure no one is
discriminated against because of how they view marriage. I
would like you to read the bill again and understand that is
exactly what this bill does. It allows discrimination against
me and couples like me and John across this country who believe
in marriage equality, who believe in our constitutional right
to marry the person we love. I believe that the United States
Congress must be better than this.
Thank you again for the opportunity to provide these
remarks.
[Prepared statement of Mr. Obergefell follows:]
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Mr. Meadows. Thank you.
Ms. Waggoner, you are recognized for 5 minutes.
STATEMENT OF KRISTEN WAGGONER
Ms. Waggoner. Mr. Chairman and members of the committee,
America enjoys a rich heritage of protecting fundamental human
rights and civil liberties. The lifeblood of our nation has
been our ability to speak freely and civilly and to act
consistent with our beliefs even when those beliefs are
politically unpopular.
Indeed, same-sex marriage advocates would never have gained
traction if the government had used the power of law to
suppress their speech and banish them from the public square.
We failed to preserve justice and true equality if our
constitutional freedoms hinge on the whims of those who have
political power.
Religious freedom is a pre-political right that rests
securely in our dignity as human beings. It belongs to all of
us. It is inalienable. And we must never forget that protecting
religious freedom protects freedom for the religious and the
nonreligious alike. It allows all of us to engage and explore
the meaning and purpose of life and then to order our lives
consistent with the answers we find.
Regardless of what one thinks about religion, we also know
that civil liberties travel together. Countries that protect
religious freedom are linked to vibrant democracy, gender
empowerment, robust freedom of the press, and economic freedom.
And countries without robust religious freedom are generally
linked to more poverty, more war, extremism, and suppression of
minorities. Religious freedom serves as a lynchpin to our other
civil liberties and our human rights. And its loss signals the
loss of other freedoms sure to follow.
The First Amendment Defense Act preserves the core of the
American experiment and safeguards the values that we all hold
dear: diversity, human dignity, equality, and freedom for all
people. It ensures that Americans do not face discrimination at
the hands of the Federal Government simply because they seek to
stay true to the very principles that guide and inspire their
commitment to social justice and to their communities.
Consider what our country would look like without these
institutions from the Catholic-run homeless shelters and
adoption agencies to the Baptist food banks and the Islamic
hunger-relief programs or to the religious institutions of
higher learning. These charities and institutions should not
have to choose between abandoning the beliefs that motivate
their service and being denied fair and equal treatment by
their government.
Using the Federal Government to drive out these
institutions will harm our most disadvantaged members of
society. Private charities should not have to live in fear of
being shut down while they are offering a hand up.
Are we really willing to censor and even force individuals,
organizations, and churches to close simply because they adhere
to the long-held belief that lies at the very core of each of
the Abrahamic faiths?
Members of the committee, the real test of liberty is what
happens when we disagree, and laws that protect views on
marriage promote tolerance, and they contribute to our society
and make it a more respectful and peaceful place in which to
live. And FADA does just that.
Now, today, we've already heard mischaracterizations about
what this bill does. And like others that have gone before,
please, I urge you, read the language in the bill.
I'd like to briefly address three of those
mischaracterizations. First, any attempt to demonize those who
adhere to the belief that marriage is between a man and a woman
is wrong. Since when have we assumed that anyone who holds a
different view is motivated by hatred or animus?
Second, comparing those who believe in man-woman marriage
to racists is intellectually dishonest. Racists of Jim Crow
America subjected African-Americans to fire hoses and lynch
mobs. They burned their businesses, they bombed their churches,
and they destroyed their communities. In contrast, those who
believe in man-woman marriage seek only to peacefully live and
work consistent with this truth, one that is universally
recognized by all major religious faiths, by all cultures, by
all civilizations, and by all races throughout human history,
which is why the Supreme Court affirmed that it is an honorable
belief held by reasonable people.
Finally, we've already heard today tall tales to suggest
that Americans will lose rights under FADA if it is adopted.
Let us be clear. That is not true. FADA is very limited in
scope, and it does not take away civil rights protections. Any
suggestion to the contrary is not supported by the bill's text.
In a pluralistic society, a multitude of convictions,
ideas, and beliefs will always exist. The First Amendment
Defense Act helps to ensure that citizens are not marginalized
based on their belief in marriage, whichever belief that is.
And it preserves those freedoms that are integral to our human
dignity.
It is a time for choosing. People throughout world history
under every sort of regime have had the freedom to believe. But
what has made America great, what makes it unique is our
freedom and commitment to be able to peacefully live out those
beliefs. The First Amendment Defense Act ensures that tolerance
remains a two-way street. Please, please do not allow marriage
to become a litmus test for participation in our civil society.
Thank you for your time.
[Prepared statement of Ms. Waggoner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. Thank you.
Ms. Franke, you are recognized for 5 minutes.
STATEMENT OF KATHERINE FRANKE
Ms. Franke. I'm the only one with a different kind of mic,
but it seems to be on.
Mr. Chairman, Ranking Member Cummings, the rest of the
committee, thank you so much for inviting me to testify today
on the important issues of religious liberty and civil rights
that are before the committee.
I'm a professor of law at Columbia Law School, as you heard
earlier, and I'm also the faculty director of the Public
Rights/Private Conscience Project at Columbia. It's a project I
founded a few years ago where we bring academic--legal academic
expertise to bear on the multiple contexts in which religious
liberty rights are in tension with other fundamental rights to
equality and liberty. And clearly, the bill before you today is
one of such contexts.
My testimony today is delivered on behalf of 20 other
prominent legal academics who have joined me in providing an
in-depth analysis of the meaning and the likely effects of
FADA, the First Amendment Defense Act, were it to become law.
We particularly feel compelled to testify today because the
first legislative finding contained in FADA declares that
``leading scholars concur that conflicts between same-sex
marriage and religious liberty are real and should be addressed
through legislation.''
So as leading scholars, we must correct this statement. We
do not concur that conflicts between same-sex marriage and
religious liberty are real, and we do not hold the view that
any such conflict should be resolved through or addressed
through legislation.
On the contrary, we maintain that religious liberty rights
are already well protected in the United States Constitution,
in Federal and State law, rendering in our view FADA both
unnecessary, and as I hope I can convince you, harmful.
I would ask that the more thorough written testimony that
my colleagues and I have prepared would be entered into the
record.
Mr. Meadows. Without objection.
[Prepared statement of Ms. Franke follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Franke. Thank you.
We all agree, I think all of us on this panel agree and I
would guess everyone in this room agrees that religious liberty
is an important, indeed, a fundamental American value. Yet, as
I've said, it receives robust protections under the U.S.
Constitution in the First Amendment, under Federal laws
including the Religious Freedom Restoration Act, and also
including every State's Constitution and many States, more than
half of the States have enacted what we call mini-RFRAs or
their own religious liberty statutes.
In this sense FADA is a solution in search of a problem.
While Chief Cochran's termination raises very troubling issues
for sure about religious liberty and public service, FADA would
never address his termination. The facts of his termination
don't fall under any reading of FADA within the protections
that it would create.
So even more worrisome than the fact that FADA is creating
a solution to a problem that doesn't exist, FADA does not
defend but rather violates the First Amendment. It does so by
unsettling the delicate balance our Constitution and our courts
have struck between protecting free--the free exercise of
religion and preventing the establishment of religion by the
Federal Government.
So how is this so? Well, as I've said, and I would insist
that religious liberty is very important. No court, including
the Supreme Court, and no reasonable scholar of the First
Amendment would hold the view that religious liberty rights are
always absolute. To be sure, our Constitution adamantly and
absolutely protects religious belief, but it does not
absolutely protect every single act that one takes in the
service of that belief. These beliefs have to be reconciled
with other fundamental rights and values that we hold dear.
Yet this is exactly what FADA would do. It creates an
absolute immunity from any penalty if a person can justify
their actions with religious beliefs or moral convictions about
marriage or sexuality. This immunity would attach regardless of
the good or even compelling reason that the Federal Government
has for a law that might conflict with that person's religious
beliefs or moral convictions.
As the ranking member and many of the other members of this
committee are well aware, not so long ago, opponents of racial
equality made arguments almost exactly similar to those being
used to defend the need for FADA today. They relied on a
theology of segregation, a well-developed set of religious
beliefs that people of different races were designed by God's
will to be separate from one another. These religious beliefs
justified resistance to an evolving norm, constitutional,
political, and social norm about racial equality, and on the
basis of those beliefs, they demanded an exemption from laws
that mandated racial equality in employment, education,
housing, and in marriage itself.
The Supreme Court unequivocally rejected those arguments.
It recognized that the Federal Government had a fundamental
overriding interest in eradicating racial discrimination and
that the public had an interest that substantially outweighed
whatever burden may be placed on the religious beliefs the
defenders of Jim Crow segregation.
And where my colleague to my right Ms. Waggoner wants to
distinguish the kinds of racial violence that we witnessed in
the 1960s or really for most of the United States history from
the kinds of violence that lesbian and gay people and unmarried
people have suffered in this country, I would beg to differ. As
Mr. Obergefell has noted and Mr. Frank have noted, we live in a
very violent society, and LGBT people are often the victims of
that violence, disproportionately so. The statistics show that
we are disproportionately the victims of that violence. So I
would beg to differ with that differentiation.
But now, as in the history of religious liberty being
invoked to justify exemptions from civil rights laws, those
liberty rights must be weighed in relationship to other
interests that the government may have enforcing laws that
secure equality and liberty for--excuse me, for all of our
citizens. We have existing principles in the Constitution and
in Federal law that allow for that balancing to take place in a
sensitive and responsible way that owes fidelity to the
fundamental importance of religious liberty and the fundamental
importance of other dearly held rights.
But when we miss that balance, when we balance too heavily
in the favor of religious liberty, we risk creating another
constitutional violation, and that is a violation of the
Establishment Clause. Why is this so? Supreme Court again has
been very clear that the religious accommodations that cause a
meaningful harm to other private citizens violate the
Establishment Clause. Protecting the religious liberty of some
cannot be accomplished or purchased by sacrificing the rights
and intent of others.
And indeed, Senator Lee said just that thing in introducing
the virtues of this bill. And if you read it closely, and I
have--it is my job, as it is yours, to read bills closely--I
would say that we have a rather fundamental disagreement about
what the language of the bill says.
So this view about causing harms to third parties is
something that the Supreme Court upheld 2 years ago by a
majority of the Court in the Hobby Lobby case. This is not an
old idea. It's not an idea of the minority of the Supreme
Court. It is one that the Court embraces.
So I have prepared--I won't go through it now--but a
detailed analysis of all of the ways in which FADA would create
substantial material harms on third parties. It's contained in
our longer testimony, and it's contained in a shorter version,
which I have and have submitted to the committee and would ask
be entered in the record.
Thank you so much, Mr. Chairman.
Mr. Meadows. Without objection, it will be included.
[The information follows:]
Mr. Meadows. Thank you for your testimony.
Dr. Franck, you are recognized for 5 minutes.
STATEMENT OF MATTHEW J. FRANCK
Mr. Franck. Thank you, Mr. Chairman. I'd like to take just
a moment not only to thank the entire committee, Ranking Member
Cummings, Chairman Chaffetz who's absent, but also to say good
morning to my Congresswoman, Mrs. Watson Coleman. I hail from
Lawrenceville, New Jersey, and I'm a constituent of yours, so
very nice to see you.
I'd also like to correct the record, an inadvertent
misstatement of Chairman Chaffetz that the Witherspoon
Institute where I work is at Princeton University. It's in the
town of Princeton but it's independent of the university.
The Supreme Court's decision in Obergefell v. Hodges in
June 2015 redefined the meaning of marriage in American law.
But many Americans remain opposed to the Court's imposition of
same-sex marriage. The reasonable belief that the true meaning
of marriage is its traditional meaning, the conjugal union of a
man and a woman, can be expected to persist among millions of
our fellow citizens. In part, this is because that view is also
supported by their religious faith, though moral convictions on
the subject can be strongly held for nonreligious reasons, too.
And so Obergefell has cast a shadow over freedom of
conscience in our country. People who sincerely hold on
religious or moral grounds that marriage can only be between a
man and a woman fear that they may be compelled to betray their
consciences or suffer grave consequences. Some people have
already experienced this, people such as Chief Kelvin Cochran.
Hence, the First Amendment Defense Act preventing the
Federal Government from discriminating against those who act on
a sincerely held and reasonable view of marriage is vitally
important legislation.
The Justices who wrote in Obergefell anticipated the
problems we now confront. Quite remarkably, they spoke about
religious liberty in a case that seemed to have nothing to do
with religious liberty. But the dissenters explicitly mentioned
the ruling's dire consequences for religious freedom and noted
that in the legislative arena changes in the law of marriage
could have included accommodations of conscience rights, as was
done in some States that adopted it legislatively.
After a judicial decree, however, it could be said it
becomes still more important for legislatures to enact what
Justice Thomas called measures ``codifying protections for
religious practice.'' In order to avoid the opening of what
Justice Alito called ``bitter and lasting wounds'' in American
society.
Justice Kennedy, speaking for the Court, spoke of people's
continued freedom to believe and to express a contrary view of
marriage, but did he rule in or rule out a freedom to act on a
view contrary to the ruling he announced? Was his description
of religious freedom a floor or a ceiling?
Justice Kennedy had spoken elsewhere in his opinion of the
``decent and honorable religious or philosophical'' principles
that undergird what people believe about conjugal marriage. And
he said the Court should not ``disparage'' such views. He did
not call defenders of traditional marriage bigots whose views
deserve no respect like people who once opposed interracial
marriage. He treated them as reasonable people who should not
be considered outsiders.
Thus, the answer to our question is that Obergefell does
not foreclose accommodations by the legislatures of the land,
including this one, of full freedom of conscience.
The aftermath of another controversial case decided by the
Supreme Court should be our model today. After Roe v. Wade,
Congress passed the Church and Weldon Amendments, which honored
the consciences of everyone who might otherwise be coerced into
facilitating or cooperating with abortions. The proposed First
Amendment Defense Act likewise is an appropriate and indeed
urgent response to the threats now looming against the rights
of conscience regarding marriage. It is in keeping with
America's best traditions of honoring freedom of religion and
the right of dissent.
The scale of the looming threat is great. People from
multiple faith communities and persons of no religion at all
have sincerely held conscientious views on marriage that they
cannot betray without compromising who they are. FADA would
ensure that the Federal Government does not impose a self-
destructive choice on these people.
A few words are in order about what FADA is not. It is not
a license to discriminate against others, least of all because
of who they are. The act says nothing about identity, dignity,
status, or orientation. It protects people's core convictions
about marriage as an institution, not any attitudes they may
have about LGBT persons as persons.
FADA does not get the Federal Government into the business
of judging people's relationships. To the contrary, it gets the
Federal Government out of taking sides on the contested issue
of whose view of marriage or sexual relations is the preferred
one or the one everyone must conform to.
FADA is in no way a violation of the Constitution's equal
protection principle. Even if we were to grant that it allows
one person to discriminate against another, which I do not
grant, that is conduct entirely in the private sphere of civil
society, not the state action the Constitution reaches. Indeed,
by clearing space for opposing viewpoints on marriage to be
equally protected in the law, FADA is a significant step for
the equal protection of the laws, not against it.
Finally, FADA is not, as Professor Franke and her
colleagues have suggested, an unconstitutional establishment of
religion. It goes no preferred standing to any religious
viewpoint over another. It sweeps across all faith communities,
and it honors nonreligious moral convictions as well. Indeed,
in its amended form just recently introduced, it is now
completely viewpoint neutral, satisfying all reasonable
concerns about its open, fair-minded, equal treatment of all.
As a vital after-Obergefell measure, the First Amendment
Defense Act prevents no one from getting married or from
celebrating a joyous wedding day. It demeans no one and
protects people who otherwise might have to choose between
their conscience and their livelihood, their ability to serve
the public, their education, or their freedom. The passage of
FADA would be a great step towards securing the space for
people of goodwill and differing views to dissent and to
disagree respectfully. It would preserve a free society where
no one's decent and honorable views are under threat of being
stamped out.
In a time when pessimism is on the rise regarding our
``culture wars'' FADA is a significant step in the direction of
peace and civility. I urge the committee to move this bill
toward its ultimate passage by the Congress and enactment into
law, and I ask the committee to enter my longer prepared
testimony into the record.
Mr. Meadows. Without objection, so ordered.
[Prepared statement of Mr. Franck follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. I want to thank all of the witnesses for your
testimony, very illuminating testimony.
And the chair recognizes the gentleman from Michigan, Mr.
Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman, and thanks for the
panel for being here.
And, you know, I would also give credit and thanks to our
Chairman Chaffetz for holding this hearing. I think it is
important. We cannot be put off by the fact that there is
disagreement and diversity of opinion. In our country today we
are very much divided. That has to change. And we have to
understand that there are things that we are doing and have
done that will promote this disunity as opposed to recognizing
the unity that comes in a free people doing free things, and
sometimes accepting positions that we don't agree with, but we
understand the freedom that this great country, a country
established very clearly under Judeo-Christian principles, a
Christian nation that afforded more freedom and opportunity for
anyone, anyone than any other country in the world.
Also, I thank the chairman for holding the hearing because
this is an issue we ought to address. I have had the privilege
of performing scores of weddings and turning down some weddings
of heterosexual couples who didn't understand the importance of
marriage and the sanctity of marriage. I have had the privilege
of performing the wedding ceremony of a Rwandan and a
Caucasian, an American, my daughter and son-in-law, and see
that marriage blessed with now an African-American
granddaughter and celebrating what I have always known to be
one race, the human race, as God created it.
Marriage is an important thing. We ought to discuss it, so
I appreciate the panel being here.
Mr. Cochran, congratulations on your distinguished record
of service, which you include what you have indicated to us
plus the fact of being the U.S. fire administrator, as well as
the first African-American fire chief for Atlanta and your work
in Shreveport as well.
You were initially suspended without pay for 30 days by the
city of Atlanta. Had the city conducted a review of any facts
at the time it suspended you?
Mr. Cochran. No, they did not. The investigation ensued
after I was suspended for 30 days.
Mr. Walberg. So no review beforehand?
Mr. Cochran. No, sir.
Mr. Walberg. Just suspension?
Mr. Cochran. Yes, sir, without pay.
Mr. Walberg. Without pay.
Mr. Cochran. But subsequently, the investigation cleared me
of any discrimination of any sort and certainly no
discrimination against a member of the department who was a
part of the LGBT community and never discrimination against any
member of the city of Atlanta who is a part of the LGBT
community.
Mr. Walberg. So the city of Atlanta ultimately, maybe after
reading the book and looking at your record, found that you
discriminated against nobody else?
Mr. Cochran. That's correct. There was an assumption from
the outset of discovering my Judeo-Christian beliefs about
marriage and sexuality that, because of my beliefs, I would
have a propensity to hate people who had those sexual
preferences and beliefs or discriminate against people who have
those sexual preferences or beliefs. Their own investigation
assured that I had not.
Mr. Walberg. In your opinion what could have happened to
you if you self-published your devotional book when you were a
Federal fire administrator for the U.S. Fire Administration in
2009?
Mr. Cochran. It's hard to say what would have happened at
that time, but in my heart of hearts, I believe that if I would
have published that book presently as a Federal employee, the
same circumstances I've experienced in the city of Atlanta I
would experience as a Federal employee.
Mr. Walberg. Okay. Regardless of your record?
Mr. Cochran. Regardless of my record.
Mr. Walberg. Ms. Waggoner, you have heard some very
powerful testimony today from Chief Cochran and others with
strong beliefs and viewpoints regarding his outgoing and
ongoing real-life experience. Are there other examples that you
could share with us today of similar situations to Chief
Cochran having their religious liberty infringed upon?
Ms. Waggoner. There are numerous examples. At Alliance
Defending Freedom, we not only represent Chief Cochran but we
represent a number of other individuals who, at the State
level, have been forced to choose between their livelihoods and
their religious beliefs, including those that have been sued
personally and corporately having everything they own at issue
if they lose. And all of our clients have willingly served
everyone. There is not one case we're aware of in the United
States where anyone has denied goods or services because
someone says they have a particular sexual preference.
Mr. Walberg. That includes institutions and welfare
organizations ----
Ms. Waggoner. Absolutely.
Mr. Walberg.--and churches?
Ms. Waggoner. Absolutely it includes those. What is at
issue is that we're seeing some laws being used by the
government to force people to have to participate in religious
ceremonies that violate their religious convictions and have to
express messages and create art that violate their core
religious convictions as well.
I would also note there not only do we have solicitor
general's comments threatening tax exemptions for religious
institutions, we have a number of Executive orders that the
Obama administration has issued or agency interpretations that
threaten that, and then we have a number of foster care and
adoption agencies who have lost their licenses, not to mention
the American Bar Association's investigation of Brigham Young
University's Law School, which is currently pending as well, I
believe.
Mr. Walberg. Thank you. I yield back.
Mr. Meadows. I thank the gentleman.
The chair recognizes the ranking member of the full
committee, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Professor Franke, as I understand this bill, it would allow
any company to fire employees if they are in same-sex marriages
without penalty from the Federal Government. This would mean
these employees would be prevented from getting relief for
their wrongful termination from the Equal Employment
Opportunity Commission. Is that your understanding?
Ms. Franke. That's my reading of the bill, Mr. Cummings.
It--the bill would prohibit the Equal Employment Opportunity
Commission or any other Federal agency from inflicting a
penalty. And penalty is a very large and vague term, but any
penalty against someone who's religious or moral convictions
commit them to the view that marriage is a union of one man and
one woman and/or anyone who has extramarital relations, also a
very vague term. So unmarried parents may also be vulnerable to
termination without recourse to Federal law.
Mr. Cummings. So this bill would apply to small business in
huge corporations, private companies, and publicly traded
companies. It would allow them to fire employees and take all
kinds of other discriminatory actions against them like denying
them leave to take care of their spouses or children under the
Family and Medical Leave Act without penalty from the Federal
Government? Is that correct? Is that ----
Ms. Franke. That's ----
Mr. Cummings.--your understanding?
Ms. Franke. That's correct.
Mr. Cummings. These companies could pay them less or give
them reduced benefits like no childcare benefits for children
of same-sex couples. Is that your understanding?
Ms. Franke. That is my understanding.
Mr. Cummings. Companies could do this if their CEOs decide
that they have religious beliefs or moral convictions that
cause them to discriminate in this way, and the Federal
Government would be prohibited from taking action. Is that
correct?
Ms. Franke. That is correct.
Mr. Cummings. Is that your understanding? So since we have
a robust panel here today, I would like to ask each of you some
basic questions about your views on discrimination. Please
raise your hands if you believe it is acceptable for businesses
in the United States to discriminate against employees because
of their race. If you believe that, would you raise your hands?
Raise your hand if you believe that it is acceptable for
companies to discriminate against employees because they are
black or white or Hispanic or Latino or Asian?
Now, please raise your hand if you believe it is acceptable
for businesses in this country to discriminate against
employees who have disabilities?
Please raise your hand if you believe it is acceptable for
businesses in this country to discriminate against women, to
pay them less than men for the same work?
Okay. Now, raise your hand if you believe it is acceptable
for businesses in this country to discriminate against
employees who are in same-sex marriages.
So, Professor Franke, this bill would allow Fortune 500,
the biggest earners from the past year, including companies
like ExxonMobil, General Electric, Walmart to create new
policies tomorrow to fire any employees in same-sex marriages,
or they could decide not to provide health insurance, and they
would face no recourse from the Federal Government. Is that
your understanding?
Ms. Franke. Well, that is a very broad statement. It--what
the bill does is it allows a company like a Hobby Lobby company
who has a view based in sincerely held religious belief or
moral convictions that marriage should be between a person--one
man and one woman or that a person should not have extramarital
relations and take steps in their employment policies to
advance those views. In that case, employees would be unable to
bring any kind of lawsuit against those companies in Federal
court or using Federal laws.
Mr. Cummings. Do you think that is fair?
Ms. Franke. I do not think that's fair.
Mr. Cummings. Do you think that is consistent with our
Constitution?
Ms. Franke. It is absolutely inconsistent with our
Constitution.
Mr. Cummings. And why is that?
Ms. Franke. Besides the fact that it uses religion as a way
to justify a second run if you will at a Supreme Court decision
that some people disagreed with. It's unconstitutional on that
level that the U.S. Supreme Court has the last word on what the
Constitution means. But it also oversteps the Establishment
Clause of the First Amendment and creates a violation of the
prohibition of the State taking a position in religious matters
or favoring particular religious views. The State is supposed
to be neutral on these questions, not embrace particular
religious views. So there are a number of reasons why I feel
like the law is problematic.
Mr. Cummings. I see my time is expired. Thank you very
much.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentleman from Ohio, Mr. Jordan,
for 5 minutes.
Mr. Jordan. Thank you, Mr. Chair.
Mr. Cochran, thank you for being here. Thank you for your
service, and thank you for your story. I have got two
committees going on and so I wasn't able to listen to your
testimony, but I read through your written testimony,
overcoming poverty. Your faith inspired you to achieve the
things that you did according to your testimony here. I just
want to run back through a few things.
You were appointed by the President to be U.S. fire
administrator for the United States Fire Administration back in
2009. Is that right?
Mr. Cochran. That's correct, Mr. Jordan.
Mr. Jordan. And that requires a confirmation hearing or
some kind of hearing?
Mr. Cochran. Yes, sir. It was a Senate confirmation hearing
by the Homeland Security Committee.
Mr. Jordan. And what was the vote there?
Mr. Cochran. It was a unanimous vote.
Mr. Jordan. All right. And then you did that for a while,
then went back to the city of Atlanta to become fire chief,
correct?
Mr. Cochran. Yes, sir.
Mr. Jordan. And according to your written testimony, ``I
was nationally recognized,'' fire chief of the year in 2012?
Mr. Cochran. That's correct, sir.
Mr. Jordan. Anything in your background ever in your work
history, your job evaluations, the things that happen each year
when you are in this line of work, same kind of things that
happen around here, ever have a negative on your employment
record, anything like that?
Mr. Cochran. No, sir. By the grace of God, it never--
there's never been any negative reflections throughout my
career.
Mr. Jordan. And then you wrote a book, right?
Mr. Cochran. That's correct.
Mr. Jordan. You wrote a book talking about how your faith
helped you achieve the things that you were able to achieve and
how it was such an inspiration and so helpful in your life
overcoming some of the obstacles you had overcome, is that
right?
Mr. Cochran. That was part of it, yes, sir.
Mr. Jordan. All right. And then what happened?
Mr. Cochran. Well, a year after the book was published, it
was discovered that I had written a small portion of the book
about Biblical sexuality and marriage. Those few paragraphs
were shared with the city of Atlanta, which subsequently led to
my 30-day suspension without pay. During that 30-day
suspension, the city launched an investigation.
Mr. Jordan. What did the investigation find?
Mr. Cochran. That I had never discriminated against anyone
throughout my career and certainly not a member of the LGBT
community.
Mr. Jordan. And isn't it true in that investigation there
was ``no interviewed witness could point to any specific
instance in which any member of the organization had been
treated unfairly by you,'' is that right?
Mr. Cochran. That's correct, sir.
Mr. Jordan. So they find out you write something, they
suspend you, they do an investigation, and they find you did
nothing wrong ----
Mr. Cochran. That's correct.
Mr. Jordan.--you got this outstanding record, confirmed by
the U.S. Senate unanimously, President appoints you fire
administrator, you are fire chief of the year in 2012, and then
you got fired?
Mr. Cochran. That's correct.
Mr. Jordan. You got fired. Well, here is what Atlanta City
Council member Alex Wan said, according to your testimony: ``I
respect each individual's right to have their own thoughts,
beliefs, and opinions, but when you are a city employee, those
thoughts, beliefs, and opinions are different from the city's,
you have to check them at the door.''
Mr. Cochran. That's correct, sir.
Mr. Jordan. I will tell you, Mr. Chairman, that is exactly
why we have a First Amendment. You do not have to check your
beliefs, right? That is what this country is about. When you
talk about the First Amendment, you have to check your beliefs
at the door? Are you kidding me? That is why this bill is so
important. That is why Senator Lee and Representative Labrador
have brought this bill and why it is so important because
people like Mr. Cochran, they shouldn't have to check their
beliefs at the door. Here is a guy who did nothing wrong,
believed in strongly held religious beliefs that, as he says in
his testimony, that Christians have held for a couple thousand
years, and the city council member says you have to check them
at the door. That is why we are having this hearing, that is
why this legislation needs to pass, and that is why people like
Mr. Cochran are heroes for his whole life experience but
certainly for standing up for the fact that you don't have to
check your religious beliefs at the door.
And with that, Mr. Chairman, I would yield back.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentlewoman from New York, Mrs.
Maloney, for 5 minutes.
Mrs. Maloney. This law that they are discussing today would
not apply to Mr. Cochran, but I would like to welcome my friend
and colleague Congressman Frank back to the table. And I am
concerned that 1 month, this is the anniversary, the month-long
anniversary of the extreme slaughter of gay and lesbian men and
women at a well-known nightclub in Orlando. And I personally
find it shameful that we are holding this hearing that is
looking at legislation that would further discriminate against
the LGBT community on the anniversary of such a tragic, tragic
event.
And, Mr. Frank, as the former chairman of the Financial
Services Committee, you spent a great deal of focus on housing
policy. And I would like you to clear up for the committee how
does this bill enable a not-for-profit housing organization to
take Federal money and then discriminate against same-sex
couples and deny them rental housing, deny them access when
their dollars were literally spent to enable the program.
Mr. Frank. Thank you, and it is good to be back with you
Representative Maloney.
Yes, I was frankly struck that Mr. Labrador went to such
great pains to deny this. Ordinarily, when you're having a
discussion and one of the people you disagree with denies
something that is irrefutably true, that's a good sign. That's
a weakness he's trying to argue away.
And I've read the bill many times. And his--let me read
from the bill. Page 3, lines 14 through 16, ``As used in
subsection A, a discriminatory action means any action taken by
the Federal Government to''--and then go to page 4, line 1--
``withhold, reduce, exclude, terminate, or otherwise made
unavailable, deny any Federal grant, contract, subcontract.''
And then it says ``This does not extend the protection to a
Federal employee acting within the scope of employment or a
Federal for-profit contractor.'' Mr. Labrador acknowledged
that. He said, well, there aren't that many nonprofits that do
the housing. Well, he's wrong about that factually. He hadn't
specialized in that, and I understand that, but nonprofit
housing groups, religious and others, are very active in
doing--in building affordable housing, taking Federal money.
So here's what this indisputably means. A nonprofit
contractor takes money from the Federal Government paid for by
everybody's taxes, builds rental housing, and then says no
same-sex couple can live there, no same-sex married couple.
That's just--I'm not making this up. I'm reading your bill. So
don't tell me it's not there. No.
If you want to protect Mr. Cochran from the city of
Atlanta, which this bill doesn't, as has been pointed out, if
you want to protect somebody at the Federal level, that's a
different bill.
You want to deal with tax exemption. Frankly, I understand
the concern about tax exemption. This goes way beyond tax
exemption. I'm willing to bet the reason is that then you'd
lose jurisdiction in the Ways and Means Committee and going to
have as much fun here.
But the fact is that this bill--we're not talking about Mr.
Cochran's right to say whatever he wants. By the way, I would
agree that you should not be fired for your opinion if it's not
relevant to your job. But under this bill, you could not say
that someone couldn't work for the Equal Employment Opportunity
Commission or the Justice Department's Civil Rights Division if
they disagreed with this Federal constitutional right.
But let me go back to this point. It's not disputable. A
nonprofit contractor, and there are many of them who get tens
and hundreds of millions of dollars to build rental affordable
housing for low-income people, may under this bill deny that
tenancy to the--to same-sex couples or, according to this bill,
to people who are not married and are having sex. So if you're
gay, lesbian, bisexual, or transgender, I guess you can move in
there if you can prove you're celibate. That's an interesting
form that I want to see people fill out.
But on same-sex couples--again, I don't understand where
you're saying it doesn't--it doesn't--show me how it doesn't.
The last point I do want to note there's been references to
the Judeo-Christian one man, one woman, and I may be one of the
few representatives of the Judeo half of that here, the last
time I was in temple there was a provision about hailing the
fathers, Abraham, Isaac, and Jacob, but then they noted that
there were four guys and--three guys and four women. So I
checked with the rabbi. Well, it turned out that Abraham had a
wife and also a concubine with whom he had a child. So much for
extramarital relations. Isaac appeared to be pretty conforming,
but Jacob wanted to marry this woman, and under the rules, then
he had to marry her older sister first. So he married her older
sister and then her.
So let's be clear I think at least on the Judeo part the
Bible does appear to say that you--marriages between one man
and at least one woman.
[Laughter.]
Mr. Frank. Now, I do want to say I did appreciate the
reference to Judeo-Christian. I know Mr. Walberg isn't here. He
said this was a Christian nation. I appreciate your--some of
you broadening it to let me in on the action.
Mr. Meadows. I thank the gentleman for his testimony. I
thank the gentlewoman. Her time is expired.
Mr. Frank, just to make sure, you are reading from page 3
of the newest bill?
Mr. Frank. Yes, the current ----
Mr. Meadows. So can you read paragraphs ----
Mr. Frank. The amendment in the nature of a substitute ----
Mr. Meadows. Yes, no--hold on. Hold on. I won't gavel you
down. Can you read sentences 9 through 12 ----
Mr. Frank. Yes.
Mr. Meadows.--of your bill to make sure we are talking
about the same one.
Mr. Frank. I appreciate it. You know the thing where when
you're losing limb, you reach for it? That's me and the gavel,
so I apologize.
Mr. Meadows. Yes. No, that's all right.
Mr. Frank. On page 3--well, on lines 9 ----
Mr. Meadows. Lines 9 through 12 to make sure we are talking
about the same bill ----
Mr. Frank. Right.
Mr. Meadows.--as modified.
Mr. Frank. Marriages should be recognized as a union of two
individuals of the opposite sex or two individuals of the same
sex ----
Mr. Meadows. Okay.
Mr. Frank.--for X amount--yes. So then you go to--I read
14, 15 ----
Mr. Meadows. That is fine. I just wanted to make sure ----
Mr. Frank. No, it's the current draft.
Mr. Meadows.--that is the most current version so ----
Mr. Frank. Mr. Chairman ----
Mr. Meadows.--the chair recognizes the gentleman from ----
Mr. Frank. Mr. Chairman, can I just say one thing? I spent
much too much time here to read the wrong bill. I've seen that
result in disaster. This is the right bill.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentleman from Arizona for 5
minutes.
Mr. Gosar. Thank you, Mr. Chairman. I would like to thank
all the witnesses for being here today as we work together to
find ways to protect the fundamental rights guaranteed to all
Americans under the Constitution.
The First Amendment of the United States Constitution
states that ``Congress shall make no law respecting an
establishment of a religion or prohibiting the free exercise
thereof.'' These two clauses are known as the Establishment
Clause and the Free Exercise Clause respectively, and they lay
out a clear fundamental right of the free exercise of religious
faith for all Americans.
The recent decision in Obergefell v. Hodges presents
serious challenges for people of faith and those who believe
marriage is between one man and one woman. I believe the
Supreme Court got this decision wrong. The Justices and the
majority allowed public opinion and their personal views rather
than sound judicial interpretation to guide their decision.
Chief Justice Roberts, John Roberts wrote, ``The majority's
decision is an act of will, not legal judgment. The quote
invalidates the marriage laws of more than half the States and
orders the transformation of a social institution that has
formed the basis of human society for millennia.''
In an even more scathing statement, the last Justice
Antonin Scalia opined ``The Supreme Court of the United States
has descended from the disciplined legal reasonings of John
Marshall and Joseph Story to the mystical aphorisms of the
fortune cookie.''
I am proud to be an original cosponsor of the First
Amendment Defense Act introduced by my good friend Raul
Labrador, and I commend his leadership. I encourage the House
and this committee to pass this much-needed bill in a timely
manner.
Dr. Matthew Franck, with the barometer of public opinion
and the opinion of the Court so varied and ever-evolving, some
worry that important religious protection efforts like the
First Amendment Defense Act are themselves contrary to the
First Amendment. In your opinion, does FADA constrict or
empower the First Amendment?
Mr. Franck. On the contrary, Congressman, thank you for
that question. FADA stands in a long tradition going back to
the founding when militia acts exempted persons scrupulous of
bearing arms for conscientious religious reasons. Of this
Congress enacting laws that add layers to the protections, the
bare-bones protection of the First Amendment, this is pro-First
Amendment legislation that does not establish religion but
bolsters the protection of the free exercise of religion.
Mr. Gosar. Thank you. The Obergefell decision has alarmed
supporters of traditional marriage, and rightfully so. Many
proponents of same-sex marriage are not content with the ruling
in this case. Their ultimate goal is to silence opposition to
their position on marriage. They see the Supreme Court's ruling
as justification for them to trample on the fundamental right
of religious freedom that the First Amendment so persistently
lays out.
This was made evident almost immediately after the decision
when opponents of traditional marriage began calling for
churches and religious organizations that support traditional
marriage to lose their tax-exempt status.
Ms. Waggoner, in your testimony you mentioned the threat of
Gordon College, its traditional view of marriage, and the
threat to their accreditation as a result of their religious
views. What sort of risks do other religious educational
institutes face if protections like those in the First
Amendment Defense Act are not enacted?
Ms. Waggoner. Well, thank you for the question. I would
like to move to admit my written statement to the record as
well, which includes the Gordon College as an example.
As I mentioned earlier, the American Bar Association is
been investigating Brigham Young University related to their
views on marriage. In addition to tax exemption, we have a
number of religious organizations that face the threat of
losing licensures, accreditations, and being inhibited in their
operations simply because they want to live and work and
operate consistent with their beliefs, foster agencies,
adoption agencies.
And I'd like to add that we want to provide diversity in
the marketplace. A single mother who's looking to place a child
should be able to place that child in the home that she would
like and be able to choose from the option of ensuring that
child has a mother and a father.
So there are a number of property tax exemptions we've seen
at issue at the State level, and then as well we're seeing more
and more suggestions that the Federal Government should also be
involved in the operation of religious organizations and in how
they live out their faith.
Mr. Gosar. Thank you very much. And that is exactly why it
is critical that Congress pass the First Amendment Defense Act.
This commonsense legislation will protect religious freedom
from hardworking Americans and businesses by preventing
discrimination by the Federal Government. Specifically, this
important bill ensures that a presidential administration with
differing religious views cannot evoke a nonprofit entity's
tax-exempt status or prevent individuals and organizations from
receiving a Federal contract, grant, or employment based on
their fundamental beliefs.
And with that, Chairman, I am going to yield back. Thank
you.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentlewoman from the District of
Columbia, Ms. Eleanor Holmes Norton, for 5 minutes.
Ms. Norton. I thank the chairman for yielding to me.
Mr. Chairman, let me say here that on behalf of the people
I represent in the District of Columbia of every sexual
orientation, I am deeply offended by this bill because it is
not only an attack on our own LGBTQ community whose rights we
have gone very far in protecting, but it is an attack on the
sovereignty of the District of Columbia itself.
This bill was actually withdrawn and rewritten in order to
include the Nation's capital, and were it to pass, it would
make the capital of this nation a discrimination zone for LGBTQ
rights. Actually, this question is for Ms. Franke. And Mr.
Frank lived in this city. It is for both of you.
Already, I may note that a Federal court has found a bill
much like this unconstitutional, a Mississippi Federal court,
and I believe that is going to be the fate of this needless
exercise if we still live in a constitutional democracy and one
that does not allow discrimination laws to be turned on their
heads.
This new bill targets both the Federal and the D.C.
government, and the way it gets the D.C. government is
particularly offensive. In spite of the Home Rule Act of 1973,
it declares the District of Columbia a colony of the Federal
Government, indicating that we are a part of the Federal
Government, an absurdity. In fact, this bill is more harmful to
the District's LGBT community than the residents of the States
because the District has a comprehensive antidiscrimination
law, and the District's law prohibits discrimination in private
and in the public sectors based, of course, on sexual
orientation in the same manner that prohibits discrimination
based on race and sex.
So the bill not only prohibits the D.C. government from
enforcing its LGBTQ antidiscrimination law but could, could
prohibit private citizens from enforcing it, too, either by
stripping courts in the District of their authority to impose
penalties or by allowing defendants in private civil suits to
actually raise a First Amendment defense as a defense due to
discrimination. Where have we come to?
So, Professor Franke first, please explain. Let's see how
this would work. Please explain how a landlord or an employer
or--I was once chair of the Equal Employment Opportunity
Commission, which of course these provisions are virtually
nullified by this bill--by a landlord or employer, I don't
know, a restaurant owner in the District of Columbia who
discriminates against an LGBTQ person could avoid liability in
a private suit? How would that work?
Ms. Franke. Thank you, Ms. Norton. The bill is curiously
written in a number of places. It's vague in a number of
places. I think the draftspersonship of it is questionable.
Ms. Norton. Well, for one thing, I think it is in many ways
void for vagueness as we say.
Ms. Franke. Well, extramarital relations is itself an
interesting category. But specifically in the definition
section, section 6 that are contained on pages 7 and 8 of the
current bill, the District of Columbia is defined first as part
of the Federal Government and then lastly as a State. So you
are right to note ----
Ms. Norton. We very much are trying to become a State but
we can't be both.
Ms. Franke. I understand that. I understand that. But for
the purposes of this bill, any nondiscrimination laws that have
been enacted by the District of Columbia are treated as Federal
law or actions of the Federal Government that would be
prohibited from enforcement ----
Ms. Norton. Let's suppose a private party were involved
because our law ----
Ms. Franke. Well, from the face of the bill it doesn't seem
that the bill would prohibit or would reach actions between
private parties. So say I wanted to rent an apartment from a
private landlord and the landlord would only rent to people,
two adults who had a marriage license ----
Ms. Norton. So you could invoke the District's
antidiscrimination law?
Ms. Franke. I do know the District's antidiscrimination law
----
Ms. Norton. Despite the District being declared part of the
Federal Government.
Ms. Franke. Right. And part of why the bill in its
vagueness is actually quite broad is that at least three
circuits have interpreted similar--very--the exact same
language under the Religious Freedom Restoration Act as denying
Federal courts of jurisdiction over suits between two private
parties. So the Federal Government is not affirmatively
enforcing the law, whether it be the District of Columbia or,
let's say, the Department of Justice. All the individuals are
doing is availing themselves of Federal court in order to
enforce rights that are created by law, but this could also
apply to D.C. courts since the District of Columbia courts are
treated as Federal courts under this statute--or under this
bill.
And so it wouldn't be unreasonable for future courts to
interpret the language of FADA to also reach private suits
between a private tenant, prospective tenant, and private
landlord brought in the D.C. court to enforce a
nondiscrimination--housing nondiscrimination provision under
D.C. law, which would be treated as Federal law under the--
under FADA.
If I might add, if the sponsors of this bill insist as they
do that the law is not intended to overwrite civil rights law,
then we should fold into the language of this bill the Do No
Harm Act, which is also pending before this Congress, an act
that says that religious liberty rights under RFRA and other
provisions of religious liberty Federal law are not designed to
override competing civil rights protections. We see none of
that language in this law, none of that language in this law as
it's currently drafted.
Ms. Norton. And thus can expect confusion where such a
bill--they will particularly never get it through the Senate.
But if such a bill were passed, the kind of confusion you would
see, especially in the District of Columbia, you have just laid
out, and I thank you very much.
Mr. Meadows. The gentlewoman's time is expired.
The gentleman from Tennessee is recognized for 5 minutes.
Mr. DesJarlais. Thank you, Mr. Chairman, and I thank the
panel for being here today to discuss this important issue.
Unfortunately, as a nation we have a long history of
discrimination, and we have made a lot of mistakes. But we
strive to correct those mistakes, and I think that the bill
that we are debating and discussing today would go a long way
to correct that.
Anybody who didn't get a chance to listen to the testimony
of Mr. Cochran should. It tells a great story, the story of
shameful discrimination, a story of success, and then another
story of failure. And, you know, I think that the First
Amendment Defense Act is incredibly important because it helps
preserve the constitutionally protected rights of religious
freedom.
I support this law, and I believe that it is imperative
that we prevent the government from treating Americans unfairly
because of their religious beliefs such as Mr. Cochran was and
has been.
This bill does not seek to take away rights from one group
to confer them onto another, but protecting religious freedom
is not a zero-sum game. This legislation is not designed to
strip away rights from any group of people but rather to
prevent the Federal Government from engaging in discriminating
behavior. The text of the bill is crystal clear on this matter.
I would like to commend Senator Lee for his work on this
and also my friend Raul Labrador, who I find to be one of the
most fair-minded, honest people that I have probably ever met,
and I know that he has no intention of discriminating, only
protecting everyone's rights equally.
Another such person that I have had the privilege to serve
with is Congressman Jim Jordan of Ohio, and with that, I would
like to leave the balance of my time to him.
Mr. Jordan. I appreciate the gentleman yielding.
I just wanted to follow up with Chief Cochran again. When
you were dismissed--again, I want to go back to the statement
made by the city council member Mr. Wan. He said you have to
``check your beliefs at the door.'' I think the First Amendment
says, no, you don't.
But it looks like you actually did, right? When they
investigated you, they found no discrimination. They could find
no witnesses that said you ever did anything wrong in how you
handled your operation at the department, is that accurate?
Mr. Cochran. That's accurate. I just--as an American and as
a person of faith, I believe that our country has provided an
opportunity for us to live out our faith and have our jobs at
the same time. In the fire service I believe it's a special
calling on a person's life to do what we do for a living. Based
upon the fact that what the fire service does for its
communities is rooted in our Constitution, and there's a clause
in the preamble of the United States of America that is very
fitting for the American fire service, in fact, all public
safety agencies, where it says ``ensure domestic tranquility.''
And in the fire service all men and women are called to ensure
domestic tranquility.
And on that basis, anyone who believes in that calling on
their life, it's very easy to develop a doctrine whereby we all
have a consensus agreement on how we should be towards one
another and how we should be towards any people group within
the scope of our community.
So the Atlanta Fire Rescue doctrine that I continue to talk
about developed a vision statement based upon all the--input
from all the people groups on a strategic planning team that
was developed when I took office. Two of those members happened
to be members of the LGBT community that was a part of that
process. We also developed a mission statement, and we
developed core values that any firefighter under any
demographic should actually embrace. One of those core values
was we committed to have an -ism-free environment at work,
which meant that all of us have an obligation to ensure that
there's no racism, sexism, nepotism, or any other -ism that
would interfere with our duty to one another ----
Mr. Jordan. I think everyone needs to understand what
happened here.
Mr. Cochran. Yes.
Mr. Jordan. The city council says you have to check your
beliefs at the door. The First Amendment says you do not. But
you in fact it didn't do anything wrong in your employment, and
you actually went further. You developed a policy working with
people of different beliefs in your department to come up with
this Atlanta Fire Rescue doctrine.
Mr. Cochran. Yes.
Mr. Jordan. And still--so understand again, check your
beliefs at the door; no, the First Amendment says you don't
have to do that; you didn't do anything to proselytize, you
didn't do any of that; everyone interviewed said no wrong
conduct here at all; and you went the extra step of developing
a doctrine that says we are going to be inclusive, and still
they terminated your employment because something you believed
and wrote outside your responsibilities as fire chief and you
were fired for that.
Mr. Cochran. Yes, sir.
Mr. Jordan. If that doesn't underscore why we need this
legislation, Mr. Chairman, I don't know what does.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentleman from Massachusetts, Mr.
Lynch, for 5 minutes.
Mr. Lynch. Thank you, Mr. Chairman, and welcome back,
Barney. Good to see you again.
Before Senator Lee and Representative Labrador left, they
were emphatic in asking us all to read the bill. And like Ms.
Franke, it is my job and I think all of our jobs to read these
bills closely and oftentimes repeatedly. I know that
Congressman Frank did that as a chairman, as a Member of
Congress here quite well during his time.
So let's go right to this bill. This was only an eight-
pager, so if you are sitting at home, this is a pretty easy
bill to read, straightforward. I usually don't get hung up on
precatory language, but in section 2--it has findings here--
section 2, paragraph 6. I am going to read this.
It says, ``In a pluralistic society in which people of good
faith hold more than one view of marriage, it is possible for
the government to recognize same-sex marriage, as required by
the United States Supreme Court, without forcing a person with
a sincerely held religious belief or moral conviction to the
contrary to conform.'' Basically, what that is is an opt-out
provision for a constitutional right. It basically says even
though the United States Supreme Court says this is a right, we
are going to recognize same-sex marriage, this bill basically
says that people get to opt out. They get to opt out.
However, if you go back to the Constitution and you read
the 14th Amendment and the Fifth Amendment, if equal protection
means equal protection, then you can't have people opting out
of constitutional rights that are guaranteed and reinforced by
the United States Supreme Court.
And so this bill in its own way is at war with itself, with
its own premise that even though there is a constitutional
right, people can ignore it, people can opt out. That is a
fundamental flaw in this bill.
Let's go to some of the other attestations that have been
made here today, that this bill doesn't affect any other
Federal right or law. If you just go to section 3, the first
sentence, it says ``In general, notwithstanding any other
provision of law.'' So what it does, it establishes the primacy
of this legislation over every other Federal law.
Now, in another section that goes back to--and that
includes any other Federal law, so FMLA, The Affordable Care
Act, OSHA, EPA, the Federal Labor Standards Act, the Federal
housing statutes that Mr. Frank talked about before, those are
all impacted here, the Civil Rights Act as well. It basically
requires this law to have primacy over all of those other laws,
so it is flatly--the text of it is not consistent with the
allegations of colleagues, Mr. Labrador and Senator Lee.
It does provide some language here that points to this
issue. It says ``under rules of construction,'' section 5, here
is what it says: It says ``No preemption, repeal, or narrow
construction - nothing in this act shall be construed to
preempt State law or repeal Federal law''--and here is the
catch--``that is equally or more protective of free exercise of
religious belief and moral conviction.'' So if there is a
Federal law out there that is more protective of religious
freedoms, that law can stand. All other laws are subsidiary to
this law.
And that is the problem. It creates a primacy that someone
with a firm religious or moral belief--and morals change; those
are very subjective, the sense of right and wrong--it allows an
individual person to basically opt out, again, of those
constitutional rights that are recognized and upheld by the
Supreme Court and embedded in our Constitution.
Let me ask, Ms. Franke, you have read this bill. Am I wrong
in pointing to the text of this legislation?
Ms. Franke. You're absolutely right. You're absolutely
right. And I would give you a parallel example. Many people in
this country hold their Second Amendment rights dearly, see
them as fundamental, the right to bear arms, the right to carry
weapons. And many people in this country, not only Quakers but
others, who have religious and moral beliefs of pacifism ----
Mr. Lynch. Right.
Ms. Franke.--who would not want someone walking into their
school, in--if they walked into my classroom with a weapon, I
would have a moral--deeply held moral opposition to that.
Mr. Lynch. Right.
Ms. Franke. And by the language of this bill, I am allowed
to opt out of what is pretty clear constitutional doctrine
around the right to carry weapons ----
Mr. Lynch. Right.
Ms. Franke.--the right to bear arms.
Mr. Lynch. Right.
Ms. Franke. Right? So we're opening a door here ----
Mr. Lynch. Well, I do want to point out, though, that for
the cases Mr. Frank pointed out before where someone, a
conscientious objector in a military situation may try to opt
out from a provision that is mandatory and requires them to
carry arms, same-sex marriage is not mandatory.
Ms. Franke. Not yet, no ----
Mr. Lynch. No.
Ms. Franke.--thankfully.
Mr. Lynch. Well, I see my time is almost expired. Mr.
Frank, do you have anything you want to add here?
Mr. Meadows. The gentleman's time actually has long
expired, and so we will let you briefly answer this question.
Mr. Frank. Okay.
Mr. Meadows. It was a good try, Mr. Lynch.
Mr. Lynch. Well, thank you.
Mr. Frank. One other point and that is--and you pointed out
the limitation on the anti-preemption. It allows everything
else to be preempted. But there was one argument that said, oh,
you don't have to worry about housing discrimination because
these other laws would stay in effect. Well, as you pointed
out, they probably wouldn't, but the point is this: There are
no Federal laws at this point that explicitly protect you in a
statutory way because you're in a same-sex marriage, nor in
many States is there any protection at all. So the only
protection, the only rule that says that you have to treat
same-sex married couples fairly and the availability of housing
would be a Federal executive policy, which can be overridden.
So, again, the argument about housing is just--is not an
argument. It's clearly not.
Mr. Meadows. Okay. I thank the gentleman.
Mr. Lynch. I want to thank the chairman for his indulgence,
and I yield back the balance of my time.
Mr. Meadows. I thank the gentleman from Massachusetts.
The chair recognizes the gentleman from Georgia, Mr. Hice,
for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
And, Mr. Obergefell, I want to thank you for your
testimony. I want you to know sincerely that I am sorry for
your loss, and as a pastor I say my prayers for comfort for you
as you continue working through this.
And, you know, I believe that we are created in the image
of God, and every life deserves to be respected. And although
we may have disagreements, we are here in America where we are
able to have those disagreements here in a civil kind of way.
But I sincerely want you to know prayers are with you as you
work through this.
Chief Cochran, I want to go back to you, fired by the city
of Atlanta very clearly because of your religious beliefs. And,
in fact, Mr. Chairman, many of us in the Georgia delegation
wrote a letter of support on behalf of Chief Cochran to Atlanta
Mayor Kasim Reed, and I would like to have that letter
submitted to the record.
Mr. Meadows. Without objection.
Mr. Hice. Chief Cochran, the mayor of Atlanta stated, in
essence, that he was disturbed by the sentiments of your book
about marriage, is that correct?
Mr. Cochran. Yes, sir.
Mr. Hice. And, in fact, you were banned from having that
book distributed in the city, is that correct?
Mr. Cochran. Yes, after it came out that I had written a
book, from that point forward, yes, sir.
Mr. Hice. Right. That is what I mean. And you personally
had to undergo sensitivity training?
Mr. Cochran. It was a condition of my return to work, but
regretfully, even though the investigation exonerated me of any
discrimination, I did not have the privilege of resuming my
employment as the fire chief of the city of Atlanta.
Mr. Hice. So you would have had to undergo sensitivity
training had you gone back?
Mr. Cochran. That's correct.
Mr. Hice. And yet, as you just referred to again, you never
had any accusations or any record whatsoever of discrimination.
In fact, you put forward, as you describe, in essence, an
antidiscrimination panel?
Mr. Cochran. Yes, sir. In fact, because of the
discrimination that I experienced as a firefighter coming
through the ranks in the city of Shreveport, I just made a vow
that that could not happen and would not happen under my watch,
and I did everything I could to prevent it from happening.
Mr. Hice. Did you put forth that panel as far as you
appointing the individuals who served?
Mr. Cochran. Yes. It was a consensus development of the
group. Because I was the new guy in town, I didn't know any of
the members of the department. I relied on the counsel of the
deputy chiefs and assistant chiefs to assemble a group of men
and women that represented every people group within the
department, and we did that.
Mr. Hice. And so there were people in that group who did
not agree with your position on marriage?
Mr. Cochran. Yes, sir.
Mr. Hice. But they were still on the panel that you put
together?
Mr. Cochran. That's correct.
Mr. Hice. That speaks volumes as to your resistance to
participating in discrimination. Do you believe that the mayor
of the city of Atlanta discriminated against you?
Mr. Cochran. Absolutely.
Mr. Hice. So they did not express to you the same conduct
that you had exhibited in your leadership?
Mr. Cochran. That's correct.
Mr. Hice. Do you believe that they discriminated
specifically because of your religious beliefs?
Mr. Cochran. They made it perfectly clear that the actions
that were taken against me were based upon the expressions in
my book that I had mentioned about marriage and Biblical
sexuality.
Mr. Hice. They certainly did, and the U.S. Commission on
Civil Rights actually wrote about your case that it is
remarkable to claim, as the city of Atlanta does, that
religious beliefs are not a matter of public concern and
therefore are unprotected by the First Amendment. It is
stunning to me that we can have a State like Atlanta outrightly
coming forth saying that religious liberties should not be
protected under the First Amendment.
And again, this underscores why we need the First Amendment
Defense Act. You do not waive your First Amendment right just
because you work for the government, nor do you waive your
First Amendment right because you go to work or you go to a
church or you are at a school or wherever it is. The First
Amendment applies to every citizen of this country.
Ms. Waggoner, let me come to you real quickly. The pendulum
of discrimination obviously swings in both directions, and what
we are seeing now is government itself doing the
discrimination. Can you give us real briefly some examples of
that?
Ms. Waggoner. We have numerous cases at the State level
where business owners, small business owners who hire LGBT
people, serve LGBT people have declined to create art or to
promote messages or celebrate and participate in same-sex
ceremonies, and as a result, they're faced with the loss of
everything they own. We have a number of religious
organizations who their accreditation and licensure has been at
issue, and we also know of the tax-exemption issues.
If you would permit me, I would also like to address some
of the misstatements as to what this law actually does. For
example, the suggestion that employees under the penalty
provision could somehow be penalized is simply not true. It
does not allow termination of employees. It does not change
existing law. The rights that you would have, you continue to
have under Federal and State law.
And more importantly, while we have cited different
provisions that are preemptory language that is not a part of
what this bill does, if you turn to section 3, discriminatory
actions are defined explicitly. They're extremely narrow. They
don't focus on other provisions of the law. They don't focus on
housing or those types of things. They focus on accreditation,
licensure, certification, funding, and government contracts,
nothing more and nothing less. So again, these misstatements, I
would encourage this committee to look at what the bill says.
Don't engage in conjecture about it.
And lastly, I would just add the Mississippi decision has
been raised here. Mississippi's decision is a trial court
decision that was based on a preliminary injunction that if
that decision is upheld, every single--virtually every single
accommodation we have provided in this nation would be
eviscerated by that judge's ruling.
We are confident it will be appealed and, although it
didn't need to do this, FADA is very different from the
Mississippi law because it covers all viewpoints. You can have
a strongly held viewpoint in same-sex marriage or a strongly
held viewpoint based on religious and moral convictions, on
opposite-sex marriage, and both beliefs are protected. That is
about tolerance. That's about diversity. That's about
protecting both sides. So again, look at what the provisions of
this bill does.
And one last point if you wouldn't mind, Chief Cochran, if
he had been in the Obama administration and this would have
happened to him, there is no question FADA would protect him.
Thank you.
Mr. Hice. I thank the chairman. And I likewise just hope
that this marriage question does not become a litmus test for
functioning in American society. Thank you, sir.
Mr. Meadows. I thank the gentleman. The gentleman's time is
expired.
The chair recognizes the gentleman from California, Mr.
Lieu, for 5 minutes.
Mr. Lieu. Thank you, Mr. Chair.
America is great because we are not a theocracy, and you
have seen the dangers of theocracies today. Some of the most
repressive regimes in the world are based on countries that
have laws based on religion. The reason we don't do that in the
United States is because our Founding Fathers were quite smart.
They put in the First Amendment of the United States
Constitution--and let's just read that First Amendment one more
time. It says ``Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof.''
So the very first line in the First Amendment says
``Congress shall make no law respecting an establishment of
religion.'' That is why when Barney Frank took an oath of
office to be a Member of Congress, and when members of this
committee took an oath of office, we took an oath to the
Constitution, not the Bible. Many of us did place our hand on
the Bible when we took the oath of the Constitution, but it was
not the other way around.
And the way we have balanced religious liberties where we
respect people of any religion, respect those who don't have
any religion, is we let religions operate freely within their
area. We even allow religions to discriminate within their
sphere. We don't allow religion to impose their views on
others.
So, Ms. Franke, let me ask you--and by the way, I happen to
be Catholic. The Catholic faith, by its very own policy, just
flat-out discriminates against women, right, by saying women
cannot be in any leadership position? You can't be Pope, you
can't be a bishop, you can't be a priest, isn't that correct?
Ms. Franke. Well, you're the Catholic. I assume that's
correct, yes.
Mr. Lieu. And yet we allow them to have a tax-exempt
status, isn't that correct?
Ms. Franke. We do, but the--well, I'll let you ----
Mr. Lieu. Right. Islamic mosques, many of them separate men
and women when they do their religious practices. We allow them
to have their tax-exempt status, right?
Ms. Franke. In some cases. It depends on each religious
institution certainly, yes.
Mr. Lieu. And our nation has taken this view that we are
just going to allow religions to do whatever they want within
their religion, to discriminate if they feel like it, to not
discriminate. But when we talk about laws, they are secularly
based, isn't that right, that we base our laws not on religion
but on government officials, on Members of Congress, on the
President?
Ms. Franke. Yes, that's right.
Mr. Lieu. So this bill to me is dangerous because it does
exactly the opposite. For the first time it is actually taking
one particular religious belief of one religion and elevating
it to secular law. And to me the reason that that is so
dangerous is that is now leading us down the road to theocracy.
And I so want to make this point that--I have read the
bill, and it is not just that this bill is leading us on the
road to theocracy. The way it is written is just crazy. I
respect the authors of the bill. I don't believe they are
crazy; they are reasonable people. But there is just some crazy
language in this bill.
So one of them is, guess what, this bill applies to
extramarital relations. So under this bill folks who are having
an affair get to be discriminated against under this bill for
it to become law. That potentially applies to premarital sex,
right, because it is not defined, so if you are not in a
marriage and you have sex, under this bill you get to be
discriminated against.
We are here in the 21st century. I hope the millennials are
watching us. This is crazy language. This is a crazy bill,
taking really, really religious beliefs and elevating it to
secular law, never been done in the history of the United
States, never should it be done.
And I am going to give my colleague Barney Frank some time
to ----
Mr. Frank. Thank you. And I do reiterate if people want to
talk about the Bible, Abraham would be excluded there. He did
have a child with Hagar outside of his marriage.
But I want to respond to Ms. Waggoner who reads the bill--
yes, you read the bill; you don't read every other line. You
read every line. Here's what it says on page 4. She says, oh,
it's got nothing to do with housing; it's just about
certification and licensing. She forgot a few lines. At the top
of page 4, ``withhold, reduce, exclude, terminate, or otherwise
make unavailable or deny any Federal grant,'' any Federal
grant, contract, subcontract, et cetera. Then you get to
license and certification. That's what housing is about. You
say it doesn't deal with housing. Of course it does. You build
housing in part with Federal grants and Federal contracts.
So I'm just astounded that you would say, oh, it's just
about certification and licensing. You skipped the first two--
the two lines just before that. And it is indisputable that
under this bill, a nonprofit could get a Federal contract or
grant to build affordable rental housing and say if you have
had extramarital relations or if you are in a same-sex
marriage, you're not eligible for the tenancy, and the Federal
Government could not refuse to allow you to get that contract
under those grounds. It's not just about certification. Again,
don't just read the bill; read every line.
Mr. Meadows. The gentleman's time is expired.
Mr. Lieu. Thank you.
Mr. Meadows. I thank the gentleman.
Mr. Lieu. I yield back.
Mr. Meadows. The chairman recognizes the gentleman from
South Carolina, Mr. Mulvaney, for 5 minutes.
Mr. Mulvaney. Thank you, Mr. Chairman.
Before we have a legal conversation--I hope we get a chance
to do that--I just want to ask maybe a commonsense question or
a gut question.
Mr. Frank. It's supposed to be.
Mr. Mulvaney. And I have heard Mr. Cochran's story for the
first time. It's very compelling. To summarize what I
understand happened is that you were dismissed from your job
even though you didn't discriminate against anybody because in
a book you quoted lines out of Scripture? Is that fair, sir?
Mr. Cochran. That's correct, sir.
Mr. Mulvaney. Does anybody think that is right, anybody on
the panel? No? Everybody is saying no. Okay.
I understand the criticisms today of the bill. In fact, one
of the questions I am going to ask Mr. Lee is why he wrote it
the way that he did it because I think you are right. I think
the bill as written would not protect Mr. Cochran. But if we
all agree that what happened to Mr. Cochran is wrong, and I
happen to agree with that and apparently everybody else does
here--in fact, I would ask everybody here if they think that
was right--how do we fix that? Well, Mr. Frank, you know I am
going to give you a chance to talk as you and I are friends and
I am going to do it, but before we move on, I want to ask a
couple other questions and then we figure out how to fix this
because that is something that needs to be fixed.
The next question is this: If there is a Jewish school that
happens to teach traditional marriage, is there anybody here
who thinks they should lose their tax-exempt status?
No one is saying yes. I assume everybody says no. Someone
in the back says no. We will talk to them later.
Ms. Franke. It depends.
Mr. Mulvaney. And I'm going to come to that in the second.
And I'll ask the same questions about Catholic churches. Should
they lose their tax-exempt status if they won't marry gay
couples? I think the answer is no. Does anyone want to take the
position that they should? And none of them have and I want to
get to that.
Lastly, I am going to ask the same thing about--pick a
list--Islamic charities that choose not to serve homosexual
couples, I don't think anybody would take the position here
that any of those entities should lose their tax-exempt status.
Mr. Frank, I will start with you because I know you are
interested in doing this, but ----
Mr. Frank. They shouldn't lose their tax-exempt status but
neither should they be able to go for a Federal grant as they
would be under this bill. And among the religions that ----
Mr. Mulvaney. Yes, but you don't get to have it both ways.
And what you said before was that you didn't want to have your
tax money used to do things that you can't participate in.
Mr. Frank. Right.
Mr. Mulvaney. There are a lot of people who think that the
fact that the Catholic Church receives tax-exempt status--one
of them is sitting in this room--that that is using their tax
money ----
Mr. Frank. Well, I mean, that is fine ----
Mr. Mulvaney.--but you are now allowed to avail yourself of
that.
Mr. Frank. No--well, one, I would--frankly, I've been told
that the church is interested in conversions, and my
understanding is that I'd probably be welcome. But the second
point is this--and not only would I be welcome, the Pope
wouldn't judge me. But the other point, though, is this. I do
guard the station. I hope you're not, Representative Mulvaney,
equating a tax exemption with a Federal grant. I think a tax
exemption is a lower level of scrutiny that applies for a tax
exemption than to getting a Federal grant. The distinction I
would make--unless you're equating the two and you're saying
that anybody eligible for an exemption should be eligible for a
grant ----
Mr. Mulvaney. And what I am saying to you, Mr. Frank, is
that I think there are people who disagree with me, by the way,
who might be of a different mindset on this who don't
differentiate between the two.
Mr. Frank. Well, I--look, there are people who think Elvis
is alive, but I don't think that's accurate. I don't think
that's the way the government works.
Mr. Mulvaney. But to Mr. Lee's ----
Mr. Frank. None of us act on that basis.
Mr. Mulvaney. But to Mr. Lee's point again, I am sorry that
he left because I think Mr. Cummings is right. We would have
liked to have them stay, but I am going to get a chance to ask
them this. He pointed to an exchange during Mr. Obergefell's
campaign--during the case in front of the Supreme Court where
it seems as if that question is very much open.
Mr. Frank. And if you want to make ----
Mr. Mulvaney. Look ----
Mr. Frank. The bill ----
Mr. Mulvaney. There are certain things this administration
have said that said they are open-minded to withdrawing ----
Mr. Frank. I understand that ----
Mr. Mulvaney.--the tax-exempt status. So go ahead.
Mr. Frank. Divide it up. This tax exemption, there's a
question of firing. By the way, I don't think the fire chief
should have been fired, but neither do I think that the Equal
Opportunity Employment Commission shouldn't be able to inquire
into it. And my difference with my formal colleague Mr. Jordan
is this. This is not a bill to protect First Amendment rights.
That's--that Atlanta City Council--every other First Amendment
right except this one would be checked. So how do you protect
them? You pass a bill that says no one can be fired because of
his or her political or religious opinion that is wholly
irrelevant to the job, and you don't single out one particular
aspect of one particular religion. Separately--you deal with
tax exemption separately.
But we've always held a different view. Richard Nixon
started this when he said you're going to not get a Federal
contract if you don't engage in even affirmative action in the
construction area, but--you could have your tax exemption but
you couldn't get the Federal grant.
So I think there are three levels. There's whether or not
you can speak out. There's tax exemption. Yes, you should be
protected in your expression of opinion, religious or not, as
long as it's irrelevant to your job.
Mr. Mulvaney. Well, there is a lawsuit brought to deny the
Jewish school, the Catholic Church, or the Islamic charity
their tax-exempt status. I hope they play that.
Now, Ms. Franke--by the way, does anybody else think it is
----
Mr. Meadows. The gentleman's time is expired.
Mr. Mulvaney. Oh, I am sorry.
Mr. Meadows. Last question, we have been a little generous,
so last question very quickly.
Mr. Mulvaney. No, I ----
Mr. Frank. Mr. Chairman, if I was here I would yield time
because I used up his time.
Mr. Mulvaney. I could do it in just a couple ----
Mr. Meadows. You have used up a lot of people's time but
that is all right.
Mr. Mulvaney. It is not the first time that Mr. Frank has
taken my time at one of these hearings, but I always enjoy the
back-and-forth. Thank you all for participating. Ms. Franke, I
did want you to follow up--maybe somebody else will have a
chance to do it--when you said that under certain circumstances
you might want to deprive those religious institutions of their
tax-exempt status. Maybe you will get a chance to follow
through on that with somebody else.
So I thank the chairman. I thank the panel.
Mr. Meadows. All right. I thank the gentleman. I am going
to recognize one other--there has actually been a vote called
on the Floor, a motion to adjourn, which should be one vote. So
I am going to recognize the gentlewoman from New Jersey, Mrs.
Watson Coleman, for 5 minutes, and then we are going to take a
slight recess.
Mrs. Watson Coleman. Thank you, Mr. Chairman. And thank you
to all of you.
And, Mr. Cochran, I don't understand why you are here today
because I don't understand how your case is involved, but I
wish you the best of luck because it seems like something went
wrong there.
Mr. Cochran. Thank you.
Mrs. Watson Coleman. Ms. Columbia Law Professor Franke, I
have a couple of questions for you. Number one, under this
proposal, is it conceivable that a woman, a single woman with a
child could be denied housing?
Ms. Franke. That can happen every day. The question is
whether she can bring a complaint against her landlord before a
Federal ----
Mrs. Watson Coleman. Under this ----
Ms. Franke. Yes.
Mrs. Watson Coleman.--proposal?
Ms. Franke. She would have a defense under FADA, the
landlord would in those cases of rendering Federal law on this
issue on enforceable, and the District of Columbia law as well.
Mrs. Watson Coleman. So under this proposal could an
employee technically refuse to allow a member of--an employee
from a same-sex marriage or a heterosexual marriage if you are
opposed to heterosexual marriage to not be able to do family
leave for a sick person?
Ms. Franke. Yes.
Mrs. Watson Coleman. Could an employer potentially not hire
and/or fire someone because of their marital status?
Ms. Franke. Actually, marital status discrimination is not
currently prohibited under Federal law, but it is under D.C.
law, and since it's treated as Federal law, that would be the
case.
Mrs. Watson Coleman. Okay. And the same thing goes for
public accommodations to any of those issues as well, right?
Ms. Franke. Yes.
Mrs. Watson Coleman. All right. Is it not hypocritical to
include the notion that you can apply these principles that are
outlined in this proposal to heterosexual couples and unmarried
heterosexual couples? Is not more than a facade?
Ms. Franke. Well, if I gave this legislation as a final
exam question in law--at Columbia Law School, this would
probably--it might be a failing exam. The idea that there are
people who believe that marriage should be limited only to two
people of the same sex, only limited to them, if they believed
that out of religious or deep moral conviction, it's an
interesting idea, but I'm unaware of anybody that holds those
views. Perhaps other members of the panel do.
Mrs. Watson Coleman. Okay. Thank you. You have sort of
answered my question.
Ms. Franke. Yes.
Mrs. Watson Coleman. I think that I just need to share
this. First of all, I find it offensive that any day of the
year that this proposal would be raised before us with all the
important issues that are confronting us. I think that this is
some of the worst form of discrimination that I have ever seen.
And I believe that while my colleague referred to it as crazy
language, I consider it more hurtful than anything, and that we
are considering this one month after what happened in Orlando,
Florida. And this evening there is going to be a vigil. It is
just another element of disrespect and disregard.
And I for one am sickened by having to come to OGR and to
have these kinds of hearings that don't move our society one
bit closer to unifying and having respect and understanding of
our individual and collective rights. And my right can't
infringe upon your right and your right can't infringe upon my
right. And my Republican majority colleagues just can't seem to
get that, and that is abhorrent and that is a disregard for the
job that they have been asked to do here.
Thank you. I yield back.
Mr. Meadows. I thank the gentlewoman.
We will go ahead and recess. And just for planning
purposes, it will be a short recess so hopefully no more than 5
to 10 minutes, but subject to the call of the chair.
So the committee stands in recess.
[Recess.]
Mr. Meadows. The Committee on Oversight and Government
Reform will be called back into session. I appreciate all of
your flexibility with regards to the vote on the House Floor. I
know other members are headed back this way, so I am going to
go ahead and recognize the gentleman from Wisconsin, Mr.
Grothman, for 5 minutes.
Mr. Grothman. Well, I was going to ask Mr. Cochran some
questions, but we are going to have to put Ms. Waggoner on the
spot. I assume, you know, from your biography you have
represented a lot of people, maybe primarily but not
exclusively of the Christian faith. Why don't you in general
give--you may be familiar--I don't know what your personal
religious background is, but you could in general just give us
a Christian perspective or the belief of, say, many mainline
Christian churches, be it Baptist, Assembly of God, WELS
Lutheran on this issue.
Ms. Waggoner. Well, I can't speak to all faiths, but I can
tell you that I know in terms of the Abrahamic religious
tradition that marriage is between a man and a woman. The Holy
Scriptures contain many different provisions that essentially
say that and that God created man and woman to partner together
and in sexual complementary to create human beings in his
image. And so the purpose of marriage in religion is to
perpetuate the human race and to honor the dignity and equality
of all human beings and create families that will be in the
image of God and promote human flourishing in that.
Mr. Grothman. Okay. I don't know. Do you have children?
Ms. Waggoner. I do.
Mr. Grothman. Good. Congratulations.
Ms. Waggoner. My daughter's here today.
Mr. Grothman. Good. Good, good, good. Your mom is doing a
good job. Do you then want--do you hope your children would--
you are raising your children hoping they will have the same
beliefs that you do? Is that part of the Christian faith that
you want to raise your children to also share in that faith,
share in those beliefs?
Ms. Waggoner. It would very much be my hope and my priority
that my children choose to walk in the faith that we have
chosen and that we are a part of. At the same time, though,
what I so much appreciate about the Christian faith is that
it's a matter of free will, and they have that choice and need
to make their--that decision on their own.
Mr. Grothman. Okay. I will give you a general question
because they want me to give you a general question. Could you
give us an oversight of what this bill does and why it is
important to you?
Ms. Waggoner. Well, the bill is important because what
we're seeing at the State level and also beginning to see at
the Federal level is that those who have the politically
unpopular view now that marriage is between a man and a woman
are being silenced, banished, and punished, including
threatened with jail time potentially, threatened with
crippling fines, and forced to go out of their business and not
earn a livelihood simply because they will not promote a
message about same-sex marriage that violates their religious
convictions or they won't actually participate in a same-sex
ceremony. There is no case in this nation that we're aware of
where anyone has been denied services simply because someone
expressed a sexual preference. And instead what we have seen is
truly the bullying and the penalization of those who just seek
to live peacefully and work peacefully consistent with their
beliefs.
Mr. Grothman. Okay. Just going through some of the papers
we got to prepare today, apparently one issue out there is
there are adoption agencies, and apparently some adoption
agencies don't like to place children with same-sex couples. If
you were ever in a position to put a child up for adoption,
would you prefer that your child not be placed with a same-sex
couple?
Ms. Waggoner. Well, I don't know that my personal beliefs
would be particularly relevant ----
Mr. Grothman. Well, I will put it this way. Would a whole
lot of people with mainstream Christian beliefs not want their
child placed with a same-sex couple?
Ms. Waggoner. I don't know what a whole lot of people would
do, but I know that in a diverse and tolerant society, they
should be able to have that choice. And that's what's so great
about the American system. It's also important to know that
there are a number of religiously based adoption agencies and
foster care agencies that it's not simply that they don't want
to, it's that they don't believe it's in the child best
interest because children do best with mothers and fathers.
They have the right to know and be loved by their mothers and
their fathers.
Mr. Grothman. Are we in danger in this country without a
bill similar to this of creating a situation which if you want
to put your child up for adoption, you will not be able to
assure that your child--if you go through a mainstream adoption
agency, you know--you will not be able to assure that your
child will be raised by a mother and father?
Ms. Waggoner. Well, we don't even have to speak in future
tense because that's already happened. We can look in D.C. and
Illinois and in other States where Catholic charities and other
religiously based adoption agencies has been forced to close
their doors. They've lost their licenses simply because they
are a religious organization that wants to operate consistent
with their religious beliefs on marriage.
Mr. Grothman. Okay. I don't believe we can have the
government establish a religion, but isn't it true--you are a
lawyer--that our forefathers anticipated America being a
country in which you would be free to practice your Christian
belief and free to raise your children in that belief?
Ms. Waggoner. Absolutely. And we know that throughout our
history in America our Founding Fathers, as well as those in
Congress and others, have successfully provided religious
accommodations, balanced religious liberty interests against
other important State interests, interests that include
national security and education and health care. We can do this
and there's no reason that we shouldn't here.
Mr. Grothman. Are we headed in this country towards a place
in which the Federal Government and State governments are
hostile to parents who want to raise their children in a
Christian faith?
Mr. Meadows. The gentleman's time is expired, but you can
answer the question.
Ms. Waggoner. There's no question that there is government
hostility to those who believe that marriage is between a man
and a woman. There's no question that they're being silenced,
that they're being banished from the marketplace simply because
of their views.
Mr. Meadows. I thank the gentleman. I thank you.
The chair recognizes the gentleman from Oklahoma, Mr.
Russell, for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman. And thank you, panel,
for being here today and for your testimonies.
I am not certain whether FADA is the best means for
protecting what is constitutionally guaranteed or not. I think
it needs more deliberation. But one thing I am certain of, Mr.
Chairman, is that in our current day the greatest assault on
the free exercise of religion is being perpetuated by those
most responsible to protect it, those who uphold the law.
Instead of upholding the free exercise clause of the First
Amendment, we have now seen this body continue its assault on
faith in America.
It is not enough to level accusations of injustice. Many
will not be satisfied until their assaults of intolerance on
people of faith in this country has produced an elimination of
God in public life in America. We are accused of hatred, called
out as shameful, and enjoined to use the whole Constitution to
support an opposing view that embodies behavior more as an
outcome that not only violates our conscience but have been
prohibited under the laws of nature and nature's God.
In the last 50 years we have seen the Constitution used by
ideologues to kill American children in the womb, eliminate
family structure, elevate behavior over belief, redefine
marriage, and assault into silence and in action any who oppose
them. Not satisfied, we now see them without rest on their
quest to eliminate free exercise of faith in the United States.
Do we really want a nation without God? They would call it
progress, yet our conscience knows different. The apostle Paul
explained why when he said--and I am exercising my First
Amendment right to state this--``For the wrath of God is
revealed from Heaven against all ungodliness and
unrighteousness of men who suppress the truth in
unrighteousness because what may be made known of God is
manifest in them for God has shown it to them. For since the
creation of the world, His invisible attributes are clearly
seen, being understood by the things that are made, even His
eternal power and Godhead so that they are without excuse
because although they knew God, they did not glorify Him as
God, nor were thankful but became futile in their thoughts and
their foolish hearts were darkened. Professing themselves to be
wise, they became fools. Therefore, God also gave them up to
uncleanness in the lust of their hearts to dishonor their
bodies among themselves, who exchanged the truth of God for the
lie and worshiped and served the creature rather than the
Creator.''
The Creator. Our nation has always been anchored in the
Creator from its inception, throughout its history. God has
been the foundation of our republic, as seen in the sweeping
lines in the Declaration of Independence. None of the founders
of this country believed that a governmental connection to
religion was an evil in itself. They oppose the establishment
of a national religion because it could prohibit free exercise
of faith, but that faith would and should be freely exercised.
The same day the Bill of Rights was introduced, July 13,
1787, this Congress also introduced the Northwest Ordinance to
lay guidelines and instruction on new territory acquired by a
future United States. Article 3 of that ordinance stated,
``Religion, morality, and knowledge being necessary to good
government and happiness of mankind, schools and the means of
education shall be forever encouraged.''
Forever be encouraged, Mr. Chairman. Some in this body
today would believe forever stops in 2016 and should have
stopped much sooner. They claim that Congress grants these
inalienable rights and use the powers of government without the
consent of the governed to regulate and diminish faith and
eliminate it from public life.
In 1798, in response to the claim that Congress could
regulate the First Amendment freedoms without abridging them,
James Madison condemned it saying, ``The liberty of conscience
and the freedom of the press were completely exempted from all
congressional authority whatever.''
Mr. Chairman, forever be encouraged. Is that where we stand
today? Shall religious freedom, the hallmark of Columbia's
shores, continue to be forever encouraged? Or do we who are so
humbly honored to serve in these chambers now step aside as we
see the indispensible supports of our religion and morality
knocked from under our foundation.
Mr. Chairman, I can't be silent. Since I was 18, I have
pledged and defended the Constitution of the United States of
this great republic. I have been moved by conscience and
dictates to speak out against the coercion of people of faith
who are being discriminated against because they hold to the
laws of nature and nature's God. Our institutions, once based
on the Creator of life, have now appointed themselves to usurp
the authority of God, who is the author of life, marriage, and
family.
The most elemental sovereign unit, the family, has been
destroyed by our foolish decisions. We are told instead by
those of us sworn to uphold the law that murder is not murder,
marriage is not marriage, family is not family. We have allowed
constitutional constructs to kill a child and call it a choice.
We have seen discreet behaviors and private sexual preferences
now promoted to public display while what is constitutionally
guaranteed to be able to express, religion, is now publicly
prohibited. This nation at its highest level, it seems, has
taken a position against God.
And so I close with this, Mr. Chairman, is it possible to
form a more perfect union without God? Can we establish justice
absent the giver of law? Can domestic tranquility be ensured
when we abandon His precepts? Can we provide for a common
defense absent a mighty fortress and an unfailing bulwark? How
do we promote the general welfare when every American is now
seemingly unanchored, adrift to do what seems right in his own
eyes? Do we suppose we can secure the blessings of liberty
without Him? Can we acknowledge our prosperity and expect to
obtain His blessing without acknowledging His existence?
And so, Mr. Chairman, like our forebears, I will not be
silent while it is still legal to not be. My faith directs that
I act with love and civility and gentlemanly manner. My
optimism is secured by eternal hope and everlasting truth. My
conscience speaks to God's eternal being so that I am without
excuse, but His love and mercy cannot be separated from those
who answer His call.
Mr. Chairman, I yield back my time.
Mr. Meadows. The gentleman's time is expired.
The chair recognizes himself for a series of questions.
And, Dr. Franck, let me come to you. Specifically, a lot
has been said here today about penalties and what may happen
and what may not happen. So as it relates to this particular
piece of legislation, can you speak to the penalty clause and
what it is and what it is not?
Mr. Franck. Yes. Thank you, Mr. Chairman. I regret that
more Democratic members haven't rejoined us because I think
that some of them were misreading the text of the bill. I'm
willing to forgive them for that error in light of the fact
that the Columbia law professor to my right seems also to be
misreading the bill and perhaps misleading the members.
The word ``penalty'' appears one time in FADA as now
written, as proposed by Congressman Labrador, and that's in
section 3 on page--yes on page 3, line 18, in context that
refers only to tax penalties under the Internal Revenue Code.
So let me go back to the top, the notwithstanding clause.
``Notwithstanding any other provision of law,'' what, ``the
Federal Government shall not take any discriminatory action
against a person.'' And discriminatory action is defined
several lines later. The very first definition of
discriminatory action is a reference to unfavorable tax
treatment because of one's religious or moral convictions about
marriage.
Mr. Meadows. So what you are saying is ----
Mr. Franck. It is the only place where penalty is ----
Mr. Meadows.--is that if they violate it, the IRS cannot
come in and say you owe a penalty ----
Mr. Franck. Right.
Mr. Meadows.--and they cannot charge a penalty as
punishment, is ----
Mr. Franck. It's unfavorable tax treatment alone. And what
this means is that all the worries I've been hearing today
about FADA undoing civil rights protection, the Family and
Medical Leave Act, the Fair Housing Act, title VII, title IX,
it's all misplaced.
Mr. Meadows. So what you are saying ----
Mr. Franck. And it ----
Mr. Meadows.--is the text of that bill would not support
any undoing of the Fair Housing Act or the Civil Rights Act or
anything like that? Ms. Waggoner, would you agree with that?
Ms. Waggoner. Absolutely.
Mr. Meadows. So if that is the case and that is obviously
something of great debate, if you believed, Ms. Waggoner, that
this particular bill would undo the Civil Rights Act or the
Fair Housing Act, would you oppose this bill?
Ms. Waggoner. I would need to look at what the bill
actually does, but what I can say ----
Mr. Meadows. Well, let's put it in context. Let me just
tell you from my standpoint, if this bill undermines those
foundational things that have served us to protect civil
rights, I will oppose this bill.
Ms. Waggoner. I would agree with you very much so.
Mr. Meadows. Okay. And so I guess what I am here to say is,
Dr. Franck, if you are saying that this penalty would not
actually be a penalty to say that we could discriminate, is
that what you are saying? I don't want to put words in your
mouth.
Mr. Franck. No, that is what I'm saying. If the Federal
Government is obliged under Civil Rights, Family Medical Leave
Act, Fair Housing Act, to assess a penalty against persons
engaging in unlawful discrimination, FADA does not let those
people off the hook. It simply doesn't.
Mr. Meadows. So those penalties would stay in place under
existing law, and this bill does not do anything to undermine
that? Is that your sworn testimony?
Mr. Franck. Yes.
Mr. Meadows. Okay. Ms. Waggoner, would you agree with that?
Ms. Waggoner. Yes, I would.
Mr. Meadows. Okay. Ms. Franke, I have found that your
testimony was very engaging, and I shared that with you
personally. And here is where I would like to work with you
knowing that we probably come from two different ideological
perspectives on this particular issue. However, maybe at the
core of that foundation is both of us in the belief that
discrimination is something that is abhorrent and something
that should not be tolerated. And would you agree that
discrimination is something that is abhorrent and shouldn't be
tolerated?
Ms. Franke. I think I can agree with that.
Mr. Meadows. Well, I thought you might. And so in doing
that, here is what I would like for all of us to do is let's
look at the text of this bill. And, Ms. Franke, you have said
that your Columbia law students would have gotten an F if they
had drafted it this way, so we will tell Ledge Counsel that
they just got an F at Columbia Law School.
Ms. Franke. There's a procedure, though, for reopening a
grade.
Mr. Meadows. Okay. Well, let's look at the procedure for
reopening a grade because here is what I would like to do is we
have had very robust conversations that disagree. Now, what my
concern is is that we are at times missing each other based on
misinformation on what the bill is, on what the bill might do,
and on what the bill does do. And so I think it is important
for us to really start to narrowly focus and start to say the
narrowly focused portions of this, what does it protect and
what does it not protect because I have heard a number of my
colleagues on both sides of this particular seat suggest things
that may not be entirely accurate from the context of what is
there.
I think we can all agree, Chief Cochran, that the kind of
discrimination that you had to face is not only wrong, but it
goes against our constitutional founding principles. And even
Mr. Frank, who may not agree with you on some of your
particular positions, agrees that the way that you were treated
was incorrect. Isn't that correct, Mr. Frank?
Mr. Frank. It is, and I wish we had a bill to protect him.
Mr. Meadows. Well, in doing that we can certainly look at a
bill, but what we have is something far greater than a bill. We
have the Constitution. In the Constitution, the same
Constitution that Ms. Frankie will teach her law students to
make sure that she upholds, is there to do it.
Now, here is the interesting thing. When jurisprudence
starts to come in and starts to look at our founding principles
from a constitutional standpoint, then it is important for us
to act. Then, it is important for us to clarify. Then, it is
important for the legislative body to say this is what we will
tolerate, this is what we believe is appropriate, and indeed
that, I can tell you in talking to my good friends Senator Lee
and Raul Labrador, that is their intent is not to discriminate.
In fact, if anything, it is to stop discrimination. And that
needs to be the underlying principle here today in all of the
argument that goes back and forth.
So, Ms. Waggoner, do I have your commitment that you are
willing to work with this committee and indeed members of this
committee perhaps individually to help us look at the language
and make sure that it does not indirectly or directly violate
the Fair Housing Act or the Civil Rights Act or anything like
that? Will you be willing to do that?
Ms. Waggoner. We would very much appreciate that
opportunity.
Mr. Meadows. Well, you have a standing invitation, and my
schedule is open to you.
Ms. Frankie, do I have your commitment to do the same with
me as we would sit down, without any cameras, without any
reporters, to try to work through this to make sure that those
protections are there?
Ms. Franke. Absolutely.
Mr. Meadows. Thank you, Ms. Franke. Dr. Franck, do I have
your same assurances where you can look at this and say here is
how we are going to work together to make sure that all rights
are protected? Will you be willing to work with us?
Mr. Franck. Absolutely.
Mr. Meadows. Well, I thank each of you.
The gentleman from Georgia has come in, and so the chair
recognizes the gentleman from Georgia, Mr. Carter, for 5
minutes.
Mr. Carter. Thank you, Mr. Chairman, and thank all of you
for being here.
Chief Cochran, thank you especially. As a fellow Georgian,
I have followed your case since its beginning, and it has
saddened me. I will tell you that. It saddened me to hear that
your 34-year career during which you were nationally recognized
as fire chief of the year came to an abrupt end at the hands of
the city of Atlanta, all because you expressed your religious
beliefs.
After you were suspended but before you were terminated,
the city of Atlanta determined that you had not discriminated
against anyone for any reason. None of the witnesses
interviewed by the city could point to a single instance in
which any member of any organization was treated unfairly by
you, is that correct?
Mr. Cochran. That's correct, sir.
Mr. Carter. Yet, because the city of Atlanta, the mayor of
Atlanta, and city council had already publicly disagreed with
your religious beliefs before the investigation, you were
terminated despite no evidence that you discriminated against
anyone, is that correct?
Mr. Cochran. That's correct, sir.
Mr. Carter. Do you believe that if you had published your
book while you were employed at the Federal level as a fire
administrator for the U.S. Fire Administration that you would
have been fired from that position for your beliefs?
Mr. Cochran. It's hard to say at that time whether or not I
would have, but I believe, based upon the tremendous radical
shift in the atmosphere in the United States of America on this
issue of marriage and sexuality, where I, the U.S. fire
administrator, in these times, I would certainly be terminated
from employment.
It is my desire to see legislation at the Federal, State,
and local level that will protect any American, in spite of or
regardless of their belief about marriage and sexuality, be
protected from adverse consequences for actually expressing
that or living it out in their personal lives.
Mr. Carter. So, Chief Cochran, you believe that the First
Amendment Defense Act will protect Federal employees from
suffering the same punishment that you suffered, you, the
national fire chief of the year suffered?
Mr. Cochran. Yes, sir, I believe that it will, and I think
it will also provide a provision whereby people who share
different beliefs from the government on marriage and sexuality
will not be withheld from employment from the Federal
Government as well.
Mr. Carter. Mr. Chairman, opponents of this First Amendment
Defense Act would have us believe that this is a solution in
search of a problem and that this doesn't happen at the Federal
level. But here we have an example, here we have an example of
an award-winning public servant who served both at the State
and the Federal level who was fired without evidence of any
wrong doing other than elected officials didn't like his
religious beliefs. That is it. Simply, they did not like his
religious beliefs, no other reason whatsoever, no indication,
no proof of any kind of discrimination by anyone at any level.
You know, if someone can get fired by one of the largest
cities in the country for freely expressing their religion,
which is a constitutionally protected right, then it is only a
matter of time before this happens at the Federal level. And it
is my belief that this is the reason why we need this
legislation, to protect anyone, anyone who expresses their
beliefs.
Chief Cochran, do you agree with that?
Mr. Cochran. I absolutely agree with you, sir.
Mr. Carter. Chief, as I said, I have followed your case
closely. Two years ago at this time I was in State Senate of
Georgia and I followed it very closely. In fact, you may not
know, but we both share the same condo complex in Atlanta, and
you are a neighbor of mine. And I am proud to call your
neighbor, and I am proud because you are a fine American.
Thank you, Mr. Chairman. I yield back.
Mr. Walker. [Presiding] Thank you, Mr. Carter.
The chair recognizes himself for 5 minutes.
Thank you again for all the panel in being here today. We
appreciate your time. I do have a couple of questions that I
wanted to come through just in case we have, yes, about 4 or 5
minutes left. Let me start with Ms. Waggoner. One of the
questions that I would like to hear from you if possible if you
have time to answer it, if the government was to force faith
communities to violate their freedom to believe or to
discontinue community services, what would our local
communities lose?
Ms. Waggoner. They would lose all kinds of humanitarian and
good works. In many instances we have a number of religiously
oriented foster care and adoption agencies. We have Catholic
hospitals. We have Islamic hunger programs. We have Jewish food
banks. Much of the humanitarian work that is done in the United
States is done by those who are motivated by faith. And there's
a mistaken notion that they would choose to forgo their
religious beliefs to stay open. We've seen that in other cases
as well.
Mr. Walker. I would certainly concur. I have had the
opportunity over the years of serving in the inner cities of
places like Cleveland and New York and Baltimore, and there is
no match for what faith-based organizations can do,
specifically in some of these tough-to-reach places. These are
the people that hold the hands of the sickest, that reach out.
I am reminded in Moore, Oklahoma, you may have remembered
the tornadoes that viciously swept through there. I was
compelled to remember the newscast. CBS and NBC did a joint
newscast where Harry Smith and Brian Williams both. And I
remember the quote by Harry Smith. It says, ``As you and I have
seen it in so many different places in this country, if you are
waiting for the government, you are going to be in for an awful
long wait.'' However, he said this: ``The Baptist men, they are
going to get it done tomorrow.''
And I think about that as an over-context to make sure that
as we look at legislation that we are protecting those who are
working behind the scenes in places where their names aren't
recognized or in headlines or in the press, but they are doing
the work because they are driven by their faith to do so.''
Chief Cochran, you make us proud. You have survived
discrimination both in the civil rights arena, as well as any
political correctness arena. The comments that we have heard
today about checking your beliefs at the door, you have stood
up. And to use a passage that you might be familiar with that I
am reminded of, I believe it was Paul that wrote, ``Alexander
the coppersmith did me much harm, but for what they meant for
harm, God meant for good.'' And I think your life is a story
because you have kept your faith, and you have kept the right
spirit. And now I believe that you are being celebrated because
of that.
My question to Representative Frank would be this: Do you
condone the harassment made by the city of Atlanta against
Chief Cochran?
Mr. Frank. Well, I know you've kind of been in and out, but
I've said several times that I don't.
Mr. Walker. Okay.
Mr. Frank. I did also note that this a bill, of course,
would do nothing to prevent that. And the bill, if I can use
all these terms, it's over-inclusive and under-inclusive. It
protects only one set of statements, a particular religious
belief about a particular issue. I think the bill ought to be
to give protection to any statement of any political or
religious belief as long as it's not job-relevant. In his case,
it wasn't job-relevant. If it was for the Justice Department's
Civil Rights Division, it would be. So I think a law that
protects any statement of religious or political belief that's
irrelevant to the job duties should be passed.
Mr. Walker. How about for elected office?
Mr. Frank. Oh, I do not believe that we interfere with what
the voters can do. I'm against any--as far as elected office,
in fact, there was a case you will remember when a Member of
this body from South Carolina shouted something out, and the
President and the House--unwisely in my judgment--voted to
criticize him. I refused to vote on that. I think the
relationship between elected officials and his or her
constituents is paramount, and nobody else should intrude into
that.
Mr. Walker. That was before I arrived, but I do remember
that making news.
My follow-up question, Mr. Frank, is that I know that there
have been some comments that you have made in the past, former
President Mitt Romney about his particular views on traditional
marriage, and I think that you have found him offensive. Is
that to a place there that you would say that these people who
hold religious belief in traditional marriage should not be
protected?
Mr. Frank. Of course not. In fact--I--again, you're--when a
preacher from Kansas, from Westboro went and started harassing
or picketing funerals of servicemen because he said God was
punishing America because it was too pro-gay, and this House
voted 400 to 3 to legally prohibit him from doing so, even when
he wasn't intruding on the grounds, I was one of the three and
the Supreme Court said we were right. No, I am in favor of any
opinion anywhere. I am not in favor of having money go to
someone.
And by the way, this does not protect the fair housing law,
notwithstanding any other provision of law. I am not for being
taxed so people can build housing from which people like me are
excluded.
Mr. Walker. There may be some debate on that. And I want to
conclude with my final question here to Dr. Franck if I could,
please. Will FADA authorize employees of the Federal Government
to refuse to provide services to same-sex couples and/or
eliminate any antidiscrimination protections for LGBT employees
of such contractors?
Mr. Franck. No, not on any fair reading of the--of FADA
that I can see. And if I may, former Congressman Frank has now
twice referred to persons working in the Civil Right Division
of the Justice Department earlier. He also referred to persons
working in the EEOC. And if I understood him correctly, he
regarded people's opinions on marriage there as so
fundamentally job-related that he would let them go even if
they did not act on those beliefs in their official capacity in
their job performance.
So perhaps he would like to clarify or quality ----
Mr. Frank. May I?
Mr. Franck.--what he said, and I invite him to do so, but
it sounded like--because I'm sure there are people--persons who
believe in conjugal marriage between one man and one woman
working today in the Civil Rights Division and the EEOC, and it
sounded like he'd like them to lose their job.
Mr. Frank. May I respond?
Mr. Walker. Just 30 seconds.
Mr. Frank. Yeah. Just as I would say if you say you'd
believe in racial discrimination or religious discrimination,
any time you are at an agency that's in charge of protecting
and enforcing constitutional rights and you express your view
that that constitutional right should not exist and it's
damaging to the country, then you should not be in the
enforcement position there.
Mr. Walker. Thank you, Representative Frank. Well, let me
say thank you to all of our witnesses for their appearance here
today. It has been a little bit of a long hearing, but you have
been patient, and we appreciate your testimony.
If there is no other further business, without objection,
the committee stands adjourned.
[Whereupon, at 1:27 p.m., the committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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