[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
DO NO HARM: EXAMINING THE
MISAPPLICATION OF THE 'RELIGIOUS
FREEDOM RESTORATION ACT'
=======================================================================
HEARING
before the
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
----------
HEARING HELD IN WASHINGTON, DC, JUNE 25, 2019
----------
Serial No. 116-31
----------
Printed for the use of the Committee on Education and Labor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
DO NO HARM: EXAMINING THE MISAPPLICATION OF THE 'RELIGIOUS FREEDOM
RESTORATION ACT'
DO NO HARM: EXAMINING THE
MISAPPLICATION OF THE 'RELIGIOUS
FREEDOM RESTORATION ACT'
=======================================================================
HEARING
before the
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 25, 2019
__________
Serial No. 116-31
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
37-317 WASHINGTON : 2020
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Francis Rooney, Florida
Donald Norcross, New Jersey Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington Jim Banks, Indiana
Joseph D. Morelle, New York Mark Walker, North Carolina
Susan Wild, Pennsylvania James Comer, Kentucky
Josh Harder, California Ben Cline, Virginia
Lucy McBath, Georgia Russ Fulcher, Idaho
Kim Schrier, Washington Van Taylor, Texas
Lauren Underwood, Illinois Steve Watkins, Kansas
Jahana Hayes, Connecticut Ron Wright, Texas
Donna E. Shalala, Florida Daniel Meuser, Pennsylvania
Andy Levin, Michigan* William R. Timmons, IV, South
Ilhan Omar, Minnesota Carolina
David J. Trone, Maryland Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
C O N T E N T S
----------
Page
Hearing held on June 25, 2019.................................... 1
Statement of Members:
Scott, Hon. Robert C. ``Bobby'', Chairman, Committee on
Education and Labor........................................ 1
Prepared statement of.................................... 4
Foxx, Hon. Virginia, Ranking Member, Committee on Education
and Labor.................................................. 6
Prepared statement of.................................... 7
Statement of Witnesses:
Hawkins, Mr. Jimmie R., Director, Presbyterian Office of
Public Witness, Presbyterian Mission USA................... 66
Prepared statement of.................................... 68
Kennedy, III, Hon. Joseph P., a Representative in Congress
from the State of Massachusetts............................ 11
Laser, Ms. Rachael, J.D., President and CEO, Americans United
for Separation of Church and State......................... 17
Prepared statement of.................................... 19
Sharp, Mr. Matt, Senior Counsel, Alliance Defending Freedom.. 47
Prepared statement of.................................... 49
Wilcher, Ms. Shirley J., MA, J.D., CAAP, Executive Director,
American Association for Access, Equity and Diversity
(AAAED).................................................... 33
Prepared statement of.................................... 35
Additional Submissions:
Adams, Hon. Alma, a Representative in Congress from the State
of North Carolina:
Article: Catholic Hospitals Denied These Women Critical
Care, Now They're Speaking Out......................... 122
Bonamici, Hon. Suzanne, a Representative in Congress from the
State of Oregon:
Prepared statement from the National Center for
Transgender Equality................................... 124
Mrs. Foxx:
Letter dated June 24, 2019 from the Committee for
Religious Liberty...................................... 134
Article: Hobby Lobby..................................... 136
Ms. Laser:
Case: In the United States District Court for the
District of South Carolina Greenville Division......... 137
Chairman Scott:
Letter dated June 20, 2019 from the Freedom From Religion
Foundation............................................. 171
Letter dated June 25, 2019 from ADL...................... 203
Letter dated June 25, 2019 from American Atheists........ 210
Letter dated June 25, 2019 from Interfaith Alliance...... 214
Faith for Equality: Faith Groups Who Have Endorsed the
Equality Act........................................... 217
Article: Why Republicans Are Growing More Willing To
Embrace Discrimination................................. 218
Case: David A. Zubik, et al., Petitioners, v. Sylvia
Burwell, Secretary of Health and Human Services, et al. 220
Report: The Gospel Of Citizens United.................... 257
Center for American Progress: Religious Liberty for a
Select Few............................................. 263
Center for American Progress: Religious Liberty Should Do
No Harm................................................ 291
Takano, Hon. Mark, a Representative in Congress from the
State of California:
Prepared statement from Stacy, Mr. David, Government
Affairs Director, Human Rights Campaign................ 317
Wild, Hon. Susan, a Representative in Congress from the State
of Pennsylvania:
Prepared statement from National Council of Jewish Women
(NCJD)................................................. 320
Questions submitted for the record by:
McBath, Hon. Lucy, a Representative in Congress from the
State of Georgia....................................... 322
Chairman Scott
Responses to questions submitted for the record:
Mr. Hawkins.............................................. 329
Ms. Laser................................................ 331
Mr. Sharp................................................ 338
Ms. Wilcher.............................................. 342
DO NO HARM: EXAMINING THE
MISAPPLICATION OF THE 'RELIGIOUS
FREEDOM RESTORATION ACT'
----------
Tuesday, June 25, 2019,
House of Representatives,
Committee on Education and Labor,
Washington, DC.
----------
The subcommittee met, pursuant to notice, at 10:16 a.m., in
room 2175, Rayburn House Office Building. Hon. Robert C.
``Bobby'' Scott (Chairman of the Committee) presiding.
Present: Representatives Scott, Davis, Courtney, Sablan,
Bonamici, Takano, Adams, DeSaulnier, Norcross, Jayapal,
Morelle, Wild, McBath, Schrier, Underwood, Hayes, Shalala,
Levin, Omar, Trone, Stevens, Lee, Castro, Foxx, Roe, Thompson,
Walberg, Guthrie, Byrne, Grothman, Stefanik, Allen, Smucker,
Banks, Walker, Comer, Cline, Fulcher, Taylor, Watkins, Wright,
Timmons, and Johnson.
Also present: Representatives Raskin, and Cohen.
Staff present: Tylease Alli, Chief Clerk; Ilana Brunner,
General Counsel; Emma Eatman, Press Aide; Daniel Foster, Health
and Labor Counsel; Christian Haines, General Counsel; Carrie
Hughes, Director of Health and Human Services; Ariel Jona,
Staff Assistant; Stephanie Lalle, Deputy Communications
Director; Andre Lindsay, Staff Assistant; Jaria Martin, Clerk/
Assistant to the Staff Director; Richard Miller, Director of
Labor Policy; Max Moore, Office Aid; Veronique Pluviose, Staff
Director; Carolyn Ronis, Civil Rights Counsel; Banyon Vassar,
Deputy Director of Information Technology; Cyrus Artz, Minority
Parliamentarian; Courtney Butcher, Minority Director of
Coalitions and Member Services; Akash Chougule, Minority
Professional Staff Member; Cate Dillon, Minority Staff
Assistant; Rob Green, Minority Director of Workforce Policy;
Bridget Handy, Minority Legislative Assistant; John Martin,
Minority Workforce Policy Counsel; Sarah Martin, Minority
Professional Staff Member; Hannah Matesic, Minority Director of
Operations; Alexis Murray, Minority Professional Staff Member;
Brandon Renz, Minority Staff Director; and Ben Ridder, Minority
Legislative Assistant.
Chairman SCOTT. Committee on Education and Labor will come
to order. Everyone is welcome. I note a quorum is present and
note for the committee that Congressman Jamie Raskin of
Maryland, Congresswoman Sylvia Garcia of Texas, and Congressman
Steve Cohen of Tennessee, who chairs the Subcommittee on
Constitution and the Judiciary Committee, will be participating
in today's hearing with the understanding that their questions
will come only after all the Members of the Committee on both
sides of the aisle who are present have had the opportunity to
question the witnesses.
The Committee is meeting today in a legislative hearing to
hear testimony on Do No Harm: The Misapplication of the
Religious Freedom Restoration Act, or RFRA, pursuant to
Committee Rule 7. Opening statements are limited to the Chair
and Ranking Member. This allows us to hear from our witnesses
sooner and provides all members with adequate time to ask
questions.
I recognize myself now for the purpose of an opening
statement.
Seventy-Eight years ago today, President Franklin D.
Roosevelt signed Executive Order 8802, the first action to
promote equal opportunity and prohibit employment
discrimination in Federal contracting in the United States. The
order barred private defense related contractors from
discrimination, and it required certain defense related
programs to be administered without discrimination as to race,
creed, color, or national origin. Subsequent orders and
amendments have been signed and have confirmed the principle
that discrimination is prohibited when using Federal money.
Against this backdrop we examine the challenge of
protecting our civil rights while maintaining our fundamental
commitment to religious liberty.
Religious liberty is a fundamental American value. Our
Founding Fathers knew from personal experience the dangers of
governmental entanglement with religion. In 1779 Thomas
Jefferson, in my home State of Virginia, introduced and helped
pass the Nation's precursor to the First Amendment, which
states ``Our civil rights have no dependence on our religious
opinions any more than our opinions on physics and geometry.''
The Virginia statute on religious freedom became the
foundation for our First Amendment to our Nation's
Constitution, which stipulates that ``Congress shall make no
law respecting an establishment of religion or prohibiting the
free exercise thereof.''
The First Amendment makes clear that all Americans have the
right to practice the religion of their choice, or none at all,
and reflects our Country's commitment to separating religion
from government or church and State.
Religion has played a vital role in our Nation's history.
It has furthered social justice causes such as the abolition
movement, civil rights movement, and the movement to end child
labor. Although some have used religion as a pawn to justify
slavery, Jim Crow, and the slaughter of our native populations
and other horrific acts.
In fact, when I was growing up segregation was preached
from the pulpit. Before the Supreme Court struck down the ban
on interracial marriage in Loving v. Virginia, the judge and
the Circuit court in Virginia, the State court, in a 1965 lower
court decision, relied on his own religious beliefs to
conclude, and I quote from his opinion, ``Almighty God created
the races, white, black, yellow, malay, and red, and he placed
them on separate continents. And but for the interference with
this arrangement, there would be no cause for such a marriage.
In fact, the fact that he separated the races showed that he
did not intend for the races to mix.''
That was the basis for the original decision in Loving v.
Virginia that was overturned by the Supreme Court. While some
religions have been protected in the courts, others have
experienced less or sometimes no protection at all. In 1990 the
Supreme Court's decision in Employment Division v. Smith upheld
the firing of two Native American employees for participating
in ceremonial peyote smoking during personal time.
In response, Congress passed the Religious Freedom
Restoration Act in 1993, on a bipartisan basis to expand
protections for religious exercise. Under RFRA Congress
addressed the court's 1990 decision by clarifying a government
action may only infringe on a person's exercise of religion if
there is a compelling governmental interest, and if it is the
least restrictive means to achieve that interest.
The passage of RFRA was meant to reinstate a broader
protection of free exercise rights, it was not meant to erode
civil rights under the guise of religious freedom. Importantly,
it did not change the First Amendment's establishment clause
which ensures that government cannot elevate certain religious
or moral beliefs above the law.
No sooner than RFRA was enacted the flood gates began to
open and RFRA has since been used to legitimize housing
discrimination against single mothers and minorities, shield
church groups from paying child abuse victims, and impose
extreme emotional harm on school children based on their gender
identity.
Since the beginning of the Trump Administration this
troublesome trend has only gotten worse. On May 4th, 2017, the
Trump Administration issued an Executive Order undermining
RFRA's original intent and allowing individuals to use
conscious based objections to override civil rights
protections.
That Executive Order directed Attorney General Sessions to
issue guidance interpreting religious liberty protections in
Federal law. Instead, the Attorney General issued guidance
following his own personal religious beliefs, and without
regard to other beliefs. The guidance has provided legal cover
for the administration to permit, or even promote, government
sanctioned attacks on civil rights in employment, healthcare,
foster care, and other areas under the guise of religious
liberty.
These attacks are spreading. For example, the Department of
Education has proposed altering which institutions of higher
education count as ``religious'' in the accrediting process in
order to allow colleges with any religious affiliation to
freely discriminate.
The Department of Health and Human Services misapplied RFRA
to propose rolling back the Affordable Care Act's protections
for patients against discrimination on the basis of race,
color, national origin, sex, age, or disability.
The Administration has also eroded women's reproductive
rights by moving to allow employers to skirt the ACA and deny
coverage for contraception on the basis of religion.
The Trump Administration is misapplying RFRA when it allows
Federal funds to be used to discriminate against families when
placing foster children, and recently permitted a federally
funded organization in South Carolina to restrict placement of
foster children only to evangelical Christian families. This
discrimination is being used to deny taxpayer-funded placements
of vulnerable refugee children in addition to the other
discrimination.
Finally, the Office of Federal Contract Compliance
Programs, OFCCP, is allowing Federal contractors to violate
civil rights laws based upon the RFRA exemption, only without
the ability to question the sincerity or legitimacy of the
claim.
These examples are just a few ways the Administration has
twisted RFRA to threaten basic civil rights imbedded in the
Civil Rights Acts of 1964 and other protective actions.
In other words, the path of religious exemptions we are on
today not only strays from President Roosevelt's original
Executive Order signed 78 years ago, but it also threatens our
civil rights and our democracy.
Unfortunately, history tells us that our country will only
continue this dangerous trajectory unless we act.
That responsibility falls on Congress. We must pass
legislation that restores RFRA's original attempt. H.R. 1450,
the Do No Harm Act, would help to ensure that our right to
religious liberty does not threaten fundamental civil and legal
rights.
Specifically, the bill would prevent RFRA from being used
to deny equal opportunity and protection against discrimination
laws, workplace protections, and protection against child
abuse, healthcare access coverage and services, and contracted
services.
I hope that we can all agree that while religious liberty
remains a fundamental value, it cannot and should not be used
as a weapon to cause harm to others, but rather as a shield to
protect civil rights of people of all faiths, not just a
favored few.
I now recognize the distinguished Ranking Member for the
purpose of making an opening statement.
[The statement by Chairman Scott follows:]
Prepared Statement of Hon. Robert C. ``Bobby'' Scott, Chairman,
Committee on Education and Labor
Seventy-eight years ago, today, President Franklin D. Roosevelt
signed Executive Order 8802, the first action to promote equal
opportunity and prohibit employment discrimination in Federal
contracting in the United States. The Order barred private, defense-
related contractors from discrimination and required certain defense-
related programs to be administered without discrimination as to,
`race, creed, color, or national origin.' Subsequent orders and
amendments have been signed to confirm the principal that
discrimination is prohibited when using Federal money.
It is against this backdrop that we examine the challenge of
protecting our civil rights while maintaining our fundamental
commitment to religious liberty.
Religious liberty is a fundamental American value. Our Founding
Fathers knew from personal experience the dangers of governmental
entanglement with religion. In 1779, Thomas Jefferson, in my home State
of Virginia, introduced and helped pass the Nation's precursor to the
First Amendment, which States, `Our civil rights have no dependence on
our religious opinions, any more than our opinions on physics and
geometry.'
The Virginia statute on religious freedom became the foundation for
the First Amendment in our Nation's constitution, which stipulates
that: ``Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof''
The First Amendment makes clear that all Americans have the right
to practice the religion of their choice, or none at all, and reflects
our country's commitment to separating religion from government, or
`church and State.'
Religion has played a vital role in our Nation's history. It has
furthered social justice causes, such as the abolitionist movement,
civil rights movement, and movement to end child labor.
However, some have used religion as a pawn to justify slavery, Jim
Crow, the slaughter of our native populations, and other horrific acts.
In fact, when I was growing up, segregation was preached from the
pulpit. Before the Supreme Court struck down the ban on interracial
marriage in Loving v. Virginia, the judge, in the circuit court in
Virginia, in a 1965 lower court decision, relied on his own religious
belief to conclude: `Almighty God created the races white, black,
yellow, malay and red, and he placed them on separate continents. And,
but for the interference with his arrangement, there would be no cause
for such marriage. The fact that he separated the races shows that he
did not intend for the races to mix.'
That was the basis for the original decision in Loving v. Virginia
that was overturned by the Supreme Court. And while some religions have
been protected in the courts, others have experienced less, or no
protection at all. In 1990, the Supreme Court's decision in Employment
Division v. Smith upheld the firing of two Native American employees
for participating in ceremonial peyote-smoking during personal time.
In response, Congress passed the Religious Freedom Restoration Act
(RFRA)in 1993 on a bipartisan basis to expand protections for religious
exercise. Under RFRA, Congress addressed the Court's 1990 decision by
clarifying that government action may only infringe on a person's
exercise of religion if there is compelling government interest and if
it is the least restrictive means to achieve that interest.
The passage of RFRA was meant to reinstate a broader protection of
free exercise rights. It was not meant to erode civil rights under the
guise of religious freedom. Importantly, it did not change the First
Amendment's Establishment Clause, which ensures that the government
cannot elevate certain religious or moral beliefs above the law.
No sooner than RFRA was enacted, the floodgates began to open and
RFRA has since been used to:
Legitimize housing discrimination against single mothers and
minorities,
Shield church groups from paying child abuse victims, and
Impose extreme emotional harm on schoolchildren based on their
gender identity.
Since the beginning of the Trump administration, this troublesome
trend has only gotten worse. On May 4th, 2017, the Trump administration
issued an Executive Order, undermining RFRA's original intent and
allowing individuals to use 'conscience-based objections' to override
civil rights protections.
That Executive Order directed Attorney General Sessions to issue
guidance interpreting religious liberty protections in Federal law.
Instead, the Attorney General issued guidance following his own
personal religious beliefs and without regard to other beliefs. The
guidance has provided legal cover for the administration to permit or
even promote government-sanctioned attacks on civil rights in
employment, health care, foster care, and other areas, under the guise
of religious liberty.
These attacks are spreading. For example, the Department of
Education has proposed altering which institutions of higher education
count as `religious' in the accrediting process to allow colleges with
any religious affiliation to freely discriminate.
The Department of Health and Human Services misapplied RFRA to
propose rolling back the Affordable Care Act's protections for patients
against discrimination on the basis of race, color, national origin,
sex, age, or disability. The administration has also eroded women's
reproductive rights by moving to allow employers to skirt the ACA and
deny coverage for contraception on the basis of religion.
The Trump administration is misapplying RFRA when it allows Federal
funds to be used to discriminate against families when placing foster
children and recently permitted a federally funded organization in
South Carolina to restrict placement of foster children only to
evangelical Christian families. This discrimination is being used to
deny taxpayer-funded placements of vulnerable refugee children in
addition to other discrimination.
Finally, the Office of Federal Contract Compliance Programs (OFCCP)
is allowing Federal contractors to violate civil rights laws based upon
a RFRA exemption, without the ability to question the sincerity or
legitimacy of the claim.
These examples are just a few of the ways this Administration has
twisted RFRA to threaten basic civil rights embedded in the Civil
Rights Act of 1964 and other protective laws.
In other words, the path of religious exemptions we are on today
not only strays from President Roosevelt's original Executive Order
signed 78 years ago but threatens our civil rights and our democracy.
Unfortunately, history tells us that our country will only continue
this trajectory unless we act.
That responsibility falls on Congress. We must pass legislation
that restores RFRA's original intent. H.R. 1450, the Do No Harm Act,
would help ensure that our right to religious liberty does not threaten
fundamental civil and legal rights.
Specifically, the bill would prevent RFRA from being used to deny:
Equal opportunity and protection against discriminatory laws;
Workplace protections and protections against child abuse;
Health care access, coverage, and services; and,
Contracted services.
I hope all of us here can agree that while religious liberty
remains a fundamental value, it cannot and should not be used as a
weapon to cause harm to others, but rather as a shield to protect the
civil rights of people of all faiths, not just a favored few.
I now recognize the distinguished Ranking Member for the purpose of
making an opening statement.
______
Mrs. FOXX. Thank you, Mr. Chairman. Thank you for yielding.
The First Amendment of the United States Constitution
declares that Congress may make no law ``respecting an
establishment of religion or prohibiting the free exercise
thereof.''
Our Founding Fathers reiterated this principle at every
stage. That people are fundamentally free and are endowed by
their creator with certain inalienable rights, among these the
ability to worship freely. Many of the first settlers of our
country crossed the ocean in search of this very freedom that
we are discussing here today.
Members present in this room come from a diverse range of
social, economic, and religious backgrounds. Surely this pillar
of our Nation's founding cannot be lost on us.
The right of Americans to practice freely their religion
and conduct their business without unnecessary interference
from the government is as important in 2019 as it was in 1620,
in 1776, and 1789.
Not too long-ago, Congress reaffirmed the significance of
this basic human right by passing the Religious Freedom
Restoration Act of 1993. With nearly unanimous bipartisan
support, RFRA stands as our Nation's primary religious liberty
statute, enacted to ensure that all Americans can freely
express their faith without fear of discrimination.
It recognizes the importance of all religious faiths,
including religious minorities, and offers a safe haven for
anyone seeking to practice their religion freely by providing a
sensible balancing test that allows individuals exercising
their religious beliefs a fair hearing under the law.
It is unacceptable that congressional Democrats, starting
in earnest during the last administration, have consistently
ignored how clear the First Amendment is in affirming religious
practice as a fundamental human right. Actions by Democrat
legislators in the name of political point scoring have eroded
the rights protected by RFRA and harmed those who wished to
exercise their Constitutional right to freedom of religion.
The Affordable Care Act and other policies of the Obama
Administration have imposed countless coverage mandates for
contraception and abortion coverage that attempt to force
individuals to violate their religious beliefs. Small business
owners and religious groups have spent tens of thousands of
dollars and countless hours defending their values and
consciences. And the Supreme Court has ruled time and again
that these attempts to limit religious expression are unlawful.
We have long stood as a nation set apart from other nations
because of the promises and principles of our First Amendment.
Our individual liberties are the envy of people across the
world, and our freedom of thought and expression are the
cornerstone of this democracy. Now more than ever it is vital
that we safeguard these fundamental rights.
I stand with all House Republicans and any Democrats
willing to put aside politics in the best interest of the
people to defend religious freedom and the rights of religious
minorities to worship freely.
We will continue to oppose all policies that undermine the
United States Constitution and that disrespect and diminish the
faith of any American.
House Republicans will also continue our steadfast support
for the Religious Freedom Restoration Act and will fight any
attempts to diminish or weaken the law which has served our
country well for over 25 years.
Lastly, it is good to see Congressman Kennedy and
Congressman Johnson join us here today. As we all know,
Congressman Kennedy's legislation to limit the scope and
application of RFRA is solely within the jurisdiction of the
Judiciary Committee. As such, Congressman Kennedy's time, in
particular, would likely be better spent speaking before our
colleagues on that committee. Regardless, I thank both of my
colleagues in advance for their testimony, and I hope we can
all work together to protect the Constitution of the United
States.
Mr. Chairman, I would like to make a small point of
personal privilege. I have two young men from the 5th District
in North Carolina shadowing me today, Reed Ballis and Lucas
Schneider. And they have a particular interest in this hearing
today and I welcome them to the hearing. With that, Mr.
Chairman, I yield back.
[The statement by Mrs. Foxx follows:]
Prepared Statement of Hon. Virginia Foxx, Ranking Member, Committee on
Education and Labor
The First Amendment of the United States Constitution declares that
Congress may make no law ``respecting an establishment of religion, or
prohibiting the free exercise thereof.'' Our founding fathers
reiterated this principle at every stage: that people are fundamentally
free, and are endowed by their Creator with certain inalienable rights,
among these, the ability to worship freely. Many of the first settlers
of our country crossed the ocean in search of this very freedom that we
are discussing here today. Members present in this room come from a
diverse range of social, economic, and religious backgrounds --surely,
this pillar of our Nation's founding cannot be lost on us. The right of
Americans to practice their religion freely and conduct their business,
without unnecessary interference from the government, is as important
in 2019 as it was in 1620, in 1776, and in 1789.
Not too long ago, Congress rearmed the significance of this basic
human right by passing the Religious Freedom Restoration Act of 1993,
with nearly unanimous bipartisan support. RFRA stands as our Nation's
primary religious liberty statute, enacted to ensure that all Americans
can freely express their faith without fear of discrimination. It
recognizes the importance of all religious faiths, including religious
minorities, and o?ers a safe haven for anyone seeking to practice their
religion freely, by providing a sensible balancing test that allows
individuals exercising their religious beliefs a fair hearing under the
law.
It is unacceptable that congressional Democrats, starting in
earnest during the last administration, have consistently ignored how
clear the First Amendment is in a?rming religious practice as a
fundamental human right. Actions by Democrat legislators in the name of
political point-scoring have eroded the rights protected by RFRA and
harmed those who wish to exercise their constitutional right to freedom
of religion.
The Affordable Care Act and other policies of the Obama
Administration have imposed countless coverage mandates for
contraception and abortion coverage that attempt to force individuals
to violate their religious beliefs. Small business owners and religious
groups have spent tens of thousands of dollars and countless hours,
defending their values and consciences. And the Supreme Court has ruled
time and again that these attempts to limit religious expression are
unlawful.
We have long-stood as a nation set apart from other nations because
of the promises and principles of our First Amendment. Our individual
liberties are the envy of people across the world, and our freedom of
thought and expression are the cornerstone of this democracy. Now more
than ever, it is vital that we safeguard these fundamental rights.
I stand with all House Republicans, and any Democrats willing to
put aside politics in the best interest of the people, to defend
religious freedom and the rights of religious minorities to worship
freely. We will continue to oppose all policies that undermine the
United States Constitution and that disrespect and diminish the faith
of any American
House Republicans will also continue our steadfast support for the
Religious Freedom Restoration Act and will fight any attempts to
diminish or weaken the law, which has served our country well for over
25 years.
Last, it's good to see you, Congressman Kennedy and Congressman
Johnson. As we all know, Congressman Kennedy's legislation to limit the
scope and application of RFRA is solely within the jurisdiction of the
Judiciary Committee. As such, Congressman Kennedy's time in particular
would likely be better spent speaking before our colleagues on that
Committee. Regardless, I thank both of my colleagues in advance for
their testimony, and I hope we can all work together to protect the
Constitution of the United States.
______
Chairman SCOTT. Thank you. Without objection all other
members who wish to insert written statements into the record
may do so by submitting them to the committee clerk by Monday,
July 8th, 2019, in the normal format.
I will now introduce our witnesses for our first panel.
Congressman Mike Johnson represents Louisiana's 4th
Congressional District. He is the Ranking Member of the
Subcommittee on the Constitution, Civil Rights and Civil
Liberties of the House Judiciary Committee. He also serves on
the House Natural Resources Committee and is Chair of the
Republican Study Committee.
Joe Kennedy, III, represents the 4th Congressional District
of Massachusetts, a member of the House Energy and Commerce
Committee. He has helped lead Congress on core issues of
economic equity, particularly in healthcare and mental health.
He also serves as Chair of the Congressional Transgender
Equality Task Force.
Let me just say we appreciate both of you for being here
today. You are fully aware of the procedures and testimony and
the lighting system. And so we will first recognize
Representative Johnson.
STATEMENT OF THE HONORABLE MIKE JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Mr. JOHNSON. Thank you, Chairman Scott, Ranking Member
Foxx, and all the Committee members. Appreciate the opportunity
to be with you this morning.
Let me begin this morning just by saying I genuinely
appreciate the intellect and the sincerity and the pure
intentions of my good friend, Joe Kennedy. We have talked about
this at some length, as well as my other good friends and
Democratic colleagues who are co-sponsors and supporters of
this bill.
That said, I am here today to urge opposition to this
legislation because I am convinced it would eviscerate one of
the most important and widely regarded laws that has ever been
passed by the Congress, and that is the Religious Freedom
Restoration Act, or RFRA, as we call it.
I did want to just make a quick remark. I do find it a bit
curious that we are here instead of over in our Subcommittee on
Judiciary. I am looking at my chairman up there, Mr. Cohen. We
would have a good time with this. But it is here for whatever
reason, so I found out about it yesterday and I came to be a
part of it.
I bring you today first-hand knowledge and experience of
the benefits and importance of the Religious Freedom
Restoration Act because prior to my election to Congress I
served for nearly 20 years as a Constitutional law attorney and
religious liberty defense litigator.
For more than 25 years now RFRA has helped secure the
fundamental right of Americans to live and work according to
their sincerely held religious beliefs. We can never lose sight
of the importance of this protection.
For so many reasons we know, religious liberty is often
referred to as our First Freedom. The founders listed it first
in the Bill of Rights because they understood the right to
believe and to act upon that belief is essential to who we are
as Americans, but more fundamentally than that, who we are as
human beings.
When that premise was placed in some doubt by a decision of
the Supreme Court in 1990's Employment Division v. Smith,
Congress responded with a truly bipartisan effort that was led
by giants on both sides of the aisle. Ironically, Senators Ted
Kennedy and Orrin Hatch, and then-Representative Chuck Schumer.
The 1993 Religious Freedom Restoration Act received
overwhelming support also from more than 60 national religious
and civil liberties organizations from across the philosophical
and political spectrum. The bill passed unanimously in our
House and received only three dissenting votes in the Senate.
It was celebrated and signed by President Bill Clinton, who
hailed the ``Broad coalition of Americans who came together to
make this bill a reality.''
The reason all those diverse groups came together was
because the Smith decision had caused great alarm around the
country. In that case the Supreme Court ruled against two
Native Americans who were terminated from their jobs because
they failed a drug test after using peyote in a traditional
religious ceremony. As you might expect, many of the
conservative and religious groups, and even many Members of
Congress who voted for RFRA didn't personally agree with the
religious practices of the peyote users. In fact, the House
Judiciary Committee itself specifically disclaimed support for
any particular practices that RFRA might be used to uphold.
But the personal views of the lawmakers was not the point.
Everyone, both liberal and conservative, recognized that even
the sincerely held religious beliefs of small minority groups
are important for us to protect. RFRA supporters understood
that one day it could be their own religious beliefs and
practices that would be unpopular and face government scorn and
restriction.
So RFRA was created to provide a very reasonable balancing
test, and this is the key. It is a balancing test in our civil
rights law. It preserves, and seeks to preserve, both religious
liberty and the rule of law. As Senator Ted Kennedy said, the
lead Senate sponsor, he explained at that time ``The act
creates no new rights for any religious practice or any
potential litigant.''
RFRA merely protects the right of every American,
regardless of their political belief system or their religious
belief system, to have a fair court review any time the
government takes an action that forces them to violate their
deeply held religious beliefs.
Simply put, as it has been stated already, the balancing
test provides that the government cannot substantially burden
the exercise of religious belief unless the government can
prove that the burden serves a compelling government interest
that is accomplished by the least restricted means.
It is important to emphasize again that all RFRA provides
is a fair hearing, it doesn't determine any outcome. In fact,
as attorney Matthew Sharp has pointed out in his written
statement for the committee today, in the quarter century since
RFRA was enacted, people who have sought protection for their
religious practices under the statute have only been successful
in 16.3 percent of appellate court opinions, and 17.6 percent
of district court opinions. In other words, the government
almost always wins. The Do No Harm Act that you are hearing
today was originally drafted and filed in the immediate wake of
the Burwell v. Hobby Lobby decision in 2014. As you know, in
that case the Supreme Court recognized a very narrow exemption
and held that the contraceptive mandate provision in the Obama
Care statute could not be used to force the owners of a
specific closely held business to violate their sincerely held
religious convictions.
Critics of the Hobby Lobby decision insisted that the
decision would ``open the flood gates,'' to all sorts of new
claims under RFRA and to ``impose Christian values on America
and use religious freedom as a new license to discriminate.''
That simply has not happened. In fact, as the Becket
Religious Liberty Defense Organization has pointed out, ``A
recent comprehensive empirical study of religious freedom
cases, post Hobby Lobby, reveals that religious minorities
remain significantly over represented in religious freedom
cases, and Christians remain significantly under represented.''
Scholars in a 2018 Law Review article documented that
``Lawsuits filed post Hobby Lobby similarly found that Hobby
Lobby has not had a dramatic effect on government win rates and
religious exemption challenges nor have religious claims
undergone a dramatic expansion in volume following the case. If
anything, the volume of these cases appears to be slightly
decreasing as a percentage of overall reported case.''
It is worthy of note too that Becket highlights the fact
that several of the 21 States that have adopted and maintained
State level RFRA statute since the 1990's, like Connecticut and
Illinois for example, are listed among the most favorable
States for LGBT protections.
As I told my friend Joe Kennedy on the House floor last
night, I know he and my other good friends who are co-sponsors
of this bill are very sincere and well-intended. But so are the
countless supporters of the RFRA statute and the religious
minorities who rely upon it to preserve their most basic and
inalienable rights and their right to provide essential goods
and services to their communities.
In a government of, by, and for the people are constant
challenges to maintain a balance of the competing interests in
society. The balance test of RFRA, it was originally championed
and enacted by the leaders of the Democratic party, has served
our Nation well. The legislation proposed today would
eviscerate that tried, true, and cherished legal protection and
effectively repeal it.
Ironically, the Do No Harm Bill would cause great harm and
immediate risk to the religious people and the thousands of
religious organizations of all faiths in this country who
provide the essential food, clothing, shelter, counseling and
social services, jobs and well-being for millions upon millions
of Americans.
I urge my colleagues to proceed here with great caution.
And let us work together, as they have in previous Congresses,
to uphold and maintain the critically important RFRA statute in
its current form. It works, and it should not be changed.
I thank you, Mr. Chairman, I yield back.
Chairman SCOTT. Thank you. And I note you mentioned the
question of jurisdiction. This Committee has jurisdiction over
matters related to equal employment opportunities like the
EEOC, has jurisdiction over many health and human services
programs, particularly those in child adoption. And the South
Carolina case that I mentioned specifically used RFRA to deny
opportunities. So all of those social services programs and the
discrimination in those programs are within the jurisdiction of
this Committee.
Representative Kennedy.
STATEMENT OF THE HONORABLE JOSEPH P. KENNEDY, III, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. KENNEDY. I thank the Chairman for holding this
important hearing and for his decades of leadership on this
issue and so many issues with regards to our civil rights. And
I want to thank the Ranking Member as well for her comments,
and my colleagues on both sides of the aisle for attending
today's important hearing, and my good friend Congressman
Johnson for his dedication to these issues, for his engagement
last night and over the course of the past several weeks, and
his commitment to try to work together to discuss some of these
issues as well.
In 1993 Congress passed the Religious Freedom Restoration
Act with an overwhelming bipartisan support, in response to
Employment Division v. Smith. Which saw two Native Americans
fired from their jobs and denied unemployment after they
consumed a controlled substance outside of work as part of
their religious faith.
For these Native Americans, and other religious minorities
like them, RFRA was meant to be a shield that protects. Because
Native Americans should be free to practice their religion,
because Jewish children should be able to wear yarmulkes in
public schools that prohibit them. Because restrictions on
facial hair should contain exceptions for those of the Muslim
faith.
However, over the years RFRA has morphed from a shield of
protection to a sword of infringement. Allowing employers to
undermined basic workplace protections, organizations to
stonewall child labor investigations, and health providers to
deny needed care for victims of sexual abuse.
The Supreme Court's 2014 ruling in Burwell v. Hobby Lobby
opened the doors for these flood gates even further, providing
a path for corporations to cite their faith in discriminating
against their employees.
Since then we have witnessed an administration that has
laid the foundation for discrimination in the name of religious
liberty at every conceivable opportunity. Right now the Trump
Administration is fighting to make it easier for women to be
denied critical contraceptive coverage on the basis of an
employer's religious and moral beliefs.
The Department of Justice issued a memorandum to all
Federal agencies and departments permitting employers to use
their religious beliefs to discriminate in employment, even
with publicly funded dollars.
Earlier this year the Administration granted a request from
South Carolina to use RFRA to waive non-discrimination
requirements for State contracted child welfare agencies. That
ruling allowed Miracle Hill Ministries, the State's largest
foster care provider, to turn one woman, Aimee Maddona, away
because she is Catholic and not Protestant.
Only a few weeks ago the Administration cited RFRA to roll
back the ACA's coverage to allow discrimination in healthcare
simply because a person in need of healthcare happens to be
transgender or because of a woman's reproductive healthcare
decisions.
It is precisely for these reasons that Congressmen Bobby
Scott and I introduced the Do No Harm Act, to restore RFRA to
its original purpose as a protective shield for religious
minorities, to clarify that no claim of religious exemption
from laws that protect against discrimination, that govern
wages and collective bargaining, prohibit child labor and
abuse, provide access to healthcare, or regulate public
accommodations, provide social services through government
contracts.
The Do No Harm Act confirms what generations of civic
history, constitutional law, and American experience have
proved true. If civil liberties and legal rights exist only in
the absence of a neighbor's religious objection, then they are
not rights, but empty promises.
The ability to freely and fully exercise sincerely held
religious beliefs in this country is a liberty we all cherish.
It is a bedrock foundation of this country. Across the Nation
religious principle inspires countless families, organizations,
and communities to champion economic justice, human dignity,
common decency, and freedom.
But there is a difference between exercising religious
beliefs and imposing them on others. Our Constitution fiercely
protects the former and expressly prohibits the latter.
With civil liberties under attack, now is the time to
affirm that the religious beliefs of one person do not
supersede the civil rights of another. And that there is no
religious exceptions to equal protection. It is time to restore
RFRA to what it was originally intended to be.
Mr. Chairman, I yield back.
[The statement of Mr. Kennedy follows:]
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Chairman SCOTT. Thank you. And I want to thank Congressman
Johnson and Congressman Kennedy for taking the time to testify
before the committee today. Your testimony is a valuable piece
of the Legislative record, and I want to thank you both for
being here.
We will now seat the second panel. We will delay for a
minute or two as they get situated. We ask our witnesses to
come forward.
I will now introduce our witnesses for the second panel.
Rachel Laser is the President and CEO of Americans United for
Separation of Church and State. She formerly served as the
Deputy Director for the Religious Action Center for Reformed
Judaism, Director of the Culture Program, a Third Way, and
Senior Counsel of the National Women's Law Center.
Shirley Wilcher is the Executive Director of the American
Association for Access, Equity, and Diversity. She previously
served as Deputy Assistant Secretary of the Office of Federal
Contract Compliance Programs during the Clinton Administration.
Notably she worked for this Committee as Associate Counsel for
civil rights under Chairman Augustus Hawkins.
And J. Matthew Sharp is Senior Counsel for the Alliance
Defending Freedom, where he directs the Center for Legislative
Advocacy. He previously served as an associate at Equites Law
Alliance, PLLC.
Reverend Jimmy Hawkins serves as the Director of the
Presbyterian Church (U.S.A.) Office of Public Witness in
Washington, DC. For 20 years he served as a pastor of Covenant
Presbyterian Church in Durham, North Carolina. He also serves
as a board trustee with Union Presbyterian Seminary, has
chaired several inter-faith, ecumenical, and non-profit boards.
We appreciate all the witnesses for being here today and
look forward to your testimony. Let me remind the witnesses
that your written statements will appear in full in the hearing
record pursuant to committee Rule 7d and committee practice.
Each of you is asked to limit your oral presentation to a 5-
minute summary of your written statement.
Let me remind you that it is unlawful to willfully falsify
statements to Congress, and since you know that we won't swear
you in.
Before your testimony, please remember to press the button
on the microphone in front of you so that it will turn on and
members can hear you. As you begin to speak the light will turn
green. After 4 minutes the light will turn yellow to signal
that you have 1 minute remaining. When the light turns red it
indicates your time has expired and we would ask you to wrap up
as quickly as possible.
We will let the entire panel make presentations before we
move to member questions. When answering a question, please
remember to once again turn your mic on.
Ms. Laser.
STATEMENT OF RACHEL LASER, J.D., PRESIDENT & CEO, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE
Ms. LASER. Good morning, Chairman Scott, Ranking Member
Foxx, and committee members. Thank you for the opportunity to
testify on this critical issue.
Last winter I met Aimee Maddona. Aimee, her husband and
three kids want to open their home to children in foster care.
Aimee was thrilled when after going through an intensive
screening process, Miracle Hill Ministries said her family was
just what they were looking for. But then they had one more
question. What church do you attend?
They asked because Miracle Hill only accepts Evangelical
Protestants. Aimee couldn't pass that test because she's
Catholic. Neither could Beth Lesser, who was turned away
because she's Jewish. Nor could Eden Rogers and Brandy Welch, a
same-sex Unitarian couple also rejected.
Despite accepting $600,000 in Federal and State taxpayer
money, Miracle Hill imposes a religious litmus test on
potential parents and volunteers.
This discriminatory policy denies children in the foster
care system the love and families they need. Miracle Hill says
religious freedom allows them to engage in this blatant
religious discrimination. The Trump Administration agrees, and
has used RFRA to exempt Miracle Hill from complying with the
Federal Anti-Discrimination Law. But this isn't what RFRA was
intended to do.
RFRA was enacted in 1993 in response to the Supreme Court's
Employment Division v. Smith opinion. Faith groups, legal
experts, and civil liberties groups, including Americans
United, came together across political divides to preserve
religious freedom protections, especially for religious
minorities. Allowing RFRA to be used to harm others also
violates the Establishment Clause of the First Amendment.
The government can't make you pay the cost of my religious
exercise because that's preferring my faith to yours.
Unfortunately, the Trump Administration is ignoring the
intent and constitutional limitations on RFRA. It's weaponizing
RFRA to undermine civil rights protections, deny people access
to healthcare and government services, and even deny children
loving homes. This harms LGBTQ people, women, the non-
religious, and religious minorities the most.
RFRA, a statute designed as a shield to protect, is now
being used as a sword to harm others. The Trump Administration
has cited RFRA to create harmful religious exemptions, and more
are coming.
In addition to the South Carolina foster care waiver,
employers are now allowed to deny their employees insurance
coverage for birth control promised them by the ACA. And a
Labor Department directive expands the ability of Federal
contractors to cite religion to discriminate in hiring.
Efforts to use religion to undermine Civil Rights
protections are nothing new. In 1968, the Supreme Court
rejected arguments that a restaurant owner could refuse to
serve Black patrons because it was ``The will of God.'' Federal
appeals courts, as recently as the 1990's, rejected Christian
schools' claims that religious freedom allowed them to give
married men larger benefits and salaries than women.
Today we must continue to reject efforts to use religion to
justify discrimination, and Congress can help. First, it should
conduct oversight hearings on the Administration's misuse of
RFRA. And second, Congress should pass the Do No Harm Act, a
simple yet critical bill designed to restore RFRA to its
original intent. It will preserve the law's power to protect
religious freedom while clarifying it may not be used to harm
others.
Under the Do No Harm Act, RFRA would still provide
protections, like ensuring Sikh service members can wear
articles of faith while in uniform. RFRA couldn't be used,
however, to allow a government funded homeless shelter to turn
away a transgender person or to allow a homeowner's association
to exclude non-Christians.
Our country is strongest when we are all free to believe or
not as we see fit, and to practice our faith without harming
others. Like Aimee Maddona said, if you don't protect the
rights of everybody it sets a precedent that will eventually
touch on you.
[The statement of Ms. Laser follows:]
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Chairman SCOTT. Thank you. Ms. Wilcher.
STATEMENT OF SHIRLEY J. WILCHER, MA, J.D., CAAP, EXECUTIVE
DIRECTOR, AMERICAN ASSOCIATION FOR ACCESS, EQUITY AND DIVERSITY
(AAAED)
Ms. WILCHER. Good morning, Mr. Chairman and members of the
Committee on Education and Labor. My name is Shirley Wilcher,
and on behalf of my association, the American Association for
Access, Equity, and Diversity, I appreciate the invitation to
testify about the potential application of the Religious
Freedom Restoration Act in the employment context.
We have been asked to opine on particular implications of
RFRA on the enforcement activities of the U.S. Department of
Labor's OFCCP, the Office of Federal Contract Compliance
Programs.
Founded in 1974, my association has four decades of
leadership in providing professional training to members,
enabling them to be more successful and productive in their
careers. It also promotes understanding and advocacy of
Affirmative Action and other equal opportunity and related
compliance laws to enhance the tenants of access inclusion and
equality in employment, economic, and educational
opportunities.
We at AAAED, we call it, remain committed to preserving the
laws enacted in the 1960's and beyond that were established to
promote equal opportunity for those who have been historically
disadvantaged based on race, religion, sex, national origin,
disability, and more recently, sexual orientation and gender
identity.
We endorse the recently House passed Equality Act and urge
its passage in the Senate. We also support the Do No Harm Act
and this Committee's work to continue the legacy of Augustus
Hawkins and other legendary members of this Committee who
labored to secure employment opportunities for the increasingly
diverse American workplace.
The Office of Federal Contract Compliance Programs, as you
know, enforces three laws, including Executive Order 11246 that
prohibit discrimination. The underlying philosophy of these
Civil Rights Era laws is that Federal funds should not be used
to support discrimination, they should be used to promote equal
employment opportunity.
Last year the Federal Government issued and entered into
560 billion in Federal contracts. That is a lot of funding, and
it is important that money be used to promote equal employment
opportunity.
You know the tenants of RFRA that prohibits any agency,
department, or official of the United States or any State
government from substantially burdening a person's exercise of
religion even if the burden results from a rule of general
applicability except that the government may burden a person's
exercise of religion only if it demonstrates that application
of a burden to the person furthers a compelling government
interest and is the least restrictive means of furthering the
governmental interest.
On August the 12th, the OFCCP issued a directive on the
Religious Freedom Act, and it included a directive that the
directive was to incorporate recent developments in the law
regarding religion exercising organizations and officials. The
directive also iterated the purpose of the Administration's
Executive Order to protect religious exercise, not impede it.
The OFCCP staffer ordered to take these legal developments into
account in their compliance activities. They must respect the
right of religious peoples and institutions to practice their
faith without fear of discrimination or retaliation by the
Federal Government.
We have reviewed the available compliance activity of the
OFCCP and found few cases involving religion. According to the
Agency statistics, only one case between 2015 and 2018 in which
a violation of religious day observance was identified.
However, in the preamble to the final rule to the sex
discrimination regulations handed down in 2016, the OFCCP
addressed the issue of RFRA. And it said it declined to
implement a blanket exemption from these provisions however,
and there is no formal process when invoking RFRA, specifically
as a basis for exemption under EO11246. However, insofar as the
application of any requirement under this part would violate
RFRA, each such application will not be required.
Let me emphasize that the Executive Order already requires
an exemption for religious organizations, and it tracks the
exemptions from the Equal Employment Opportunity Commission.
But our concern is about the effects of the application of
RFRA. We are particularly concerned about the impact on the
LGBT community but not others.
In some respects what we saw in the South Carolina case and
HHS is worrying us because it really is reminiscent of the
lunch counter issues. How far do we go in the implication and
the impact of that particular provision?
We are also concerned because the OFCCP, when I was at the
Department of Labor, let me say, there was discrimination that
I found shocking. Between 1994 and 2001 I put together what we
called egregious cases to remind America that discrimination is
alive and well, and that includes cases involving the Ku Klux
Klan. I can elaborate later, but all of that is to say RFRA
adds insult to injury, in our view, because discrimination is
alive and well and there are exceptions for religious
organizations.
[The statement of Ms. Wilcher follows:]
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Chairman SCOTT. Thank you. Mr. Sharp.
STATEMENT OF MATT SHARP, SENIOR COUNSEL, ALLIANCE DEFENDING
FREEDOM
Mr. SHARP. Good morning, Chairman Scott, Ranking Member
Foxx, and members of the Committee. I am Matt Sharp, Senior
Counsel with Alliance Defending Freedom.
One of our Nation's greatest hallmarks is its commitment to
protecting fundamental human rights, rights rooted in human
dignity. Among these inalienable rights is religious freedom.
A person's religious beliefs are core to their identity,
and even to their relationship with those around them. These
deeply held convictions guide them and even compel their
commitment to social justice and to the community.
From evangelical run homeless shelters or an Islamic hunger
relief program to a Catholic run adoption and foster care
provider, these charitable organizations should not be forced
to choose between abandoning their beliefs and inspire their
service or being denied fair and equal treatment by the
government. Such action would not only undermine these national
virtues that make us unique, but it would also have a
devastating impact on some of the most disadvantaged members of
society.
Children displaced by the opioid crisis in need of a loving
home, survivors of sex trafficking and domestic abuse seeking
shelter, the addicted longing for relief, and low-income
families in dire need of a roof over their heads.
Every day people of faith serve their neighbors, offering
food, clothing, shelter, and other social services. They
provide jobs for thousands. And while this economic benefit of
religion was recently valued at $1.2 trillion annually, we
can't put a price on the countless lives forever changed by a
helping hand from faith communities.
But religion's vast benefit to the whole of American
society will only last so long as people of faith maintain the
freedom to exercise religion, not just in their home or place
of worship, but at work and in a wider community.
Unfortunately, proposals like the Do No Harm Act undermine
that liberty. The Act's sole purpose is to declare open season
for government regulation on broad swaths of religious exercise
by individuals, houses of worship, non-profits and many more
without offering any meaningful judicial scrutiny whatsoever.
The Act would impose great harm on religious minorities by
conditioning their free exercise on the whims of those in power
who seek to disfranchise this favored use.
But RFRA safeguards every person's ability to peacefully
live, work, and act consistent with their beliefs even when
those beliefs might be politically unpopular. RFRA gives those
burdened by the weight of intrusive government regulations a
judicial forum where their voice can be heard and relief can be
sought.
For many people of faith, from Native Americans and Muslims
to Rainbow Family and Rastafarians, every aspect of their lives
has eternal consequences. The Muslim prisoner believes it is
disrespectful to the Prophet Mohammad to shave his beard. The
Jewish shop forced to open on Sundays would openly defy the
Torah's command to remember it as a day of rest. The Catholic
nun mandated to pay for abortion inducing drugs would trample
underfoot the sanctity of an innocent human life. And the
grandmother florist told she must design a floral arrangement
for a friend's same-sex wedding would dishonor a sacred
institution established by God.
We may not share these beliefs but the real test of
religious liberty is what happens when we disagree.
Disagreement is not discrimination and it should never be
treated as such. Nor should disagreement provide justification
to shut the doors of the justice system to minority beliefs
simply because the whims of societal acceptance have shifted
direction.
Few of us here today would support the religious practices
of the peyote drug users in Employment Division v. Smith or any
of the other cases involving controlled substances and
religious rituals. But I think we can all recognize that one
day the winds may change and it can be our religious practices
facing government scorn.
RFRA was crafted to take the thumb off the scales of
justice, take the thumb off the scales of justice that had been
used to favor government over people of faith. And restore that
proper balance, one that honors the high place that religious
freedom and exercise holds in our Constitutional system. It
doesn't determine winners or losers. Nor does it mean that
religion will prevail. RFRA simply protects the process for
balancing the government's interest with individual freedom.
And that process helps to safeguard values that all of us
here today hold dear. Values like diversity, like human
dignity, freedom for all, and the conviction that no American
should suffer discrimination at the hands of the Federal
Government for publicly living out their faith.
Twenty-five years after RFRA our Nation is more diverse
than ever, and we hold increasingly divergent views on beliefs
ranging from marriage and abortion to immigration and the
opioid crisis. And people of faith continually find themselves
caught in the crossfire as their beliefs and practices are both
misunderstood and subject to popular scorn.
In these times the need for RFRA has not diminished. Today
RFRA is more vital than ever.
Thank you.
[The statement of Mr. Sharp follows:]
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Chairman SCOTT. Thank you. Reverend Hawkins.
STATEMENT OF REVEREND JIMMIE R. HAWKINS, DIRECTOR, PRESBYTERIAN
OFFICE OF PUBLIC WITNESS, PRESBYTERIAN MISSION USA
Mr. HAWKINS. Good morning, Chairman Scott, Ranking Member
Foxx, and committee members. Thank you for this opportunity to
be with you here today. I am an ordained minister with the
Presbyterian Church (U.S.A.) and serve as the director of the
church's Office of Public Witness.
Religious freedom is sacred to me and to my denomination.
For more than 200 years our historic principles have recognized
the importance of religious freedom. And, of course, it is a
fundamental American value.
In 1993, consistent with our teachings, the Presbyterian
Church supported the pass of RFRA as a way to allow persons and
religious groups to practice their faith without constraint of
the government. Unfortunately, over the years RFRA has become a
weapon aimed at excluding, marginalizing, and discriminating
against vulnerable populations. This misinterpretation of RFRA
runs counter to religious freedom and the teachings of my
faith.
In our commitment to be disciples of Jesus Christ, my
church is called to stand against oppression and in support of
human dignity for all people because religious freedom must be
equal and common to all. It cannot be maintained as a matter of
privileged exemption for powerful individuals or groups.
Religious freedom gives each of us the right to believe in
accord with our own conscience, and practice our faith, as long
as we don't hurt others.
We believe it weakens religious freedom when it is invoked
in ways that deprive people of their civil and human rights to
equal protection under the law or seek to justify exclusion and
discrimination.
Presbyterians have historically valued religious liberty
and continue to support the freedom to act according to one's
religious beliefs.
However, in cases involving the refusal of goods and
services, false claims of religious freedom cause direct harm
to those who are denied access. Legislating such claims as
cases of protected religious freedom would undermine years of
progress in State and Federal civil rights and anti-
discrimination law.
As Chairman Scott gave comment to the battles over slavery
and racial segregation, religion and scripture are often cited
as justification for maintaining inequality. People even heard
it preached from pulpits on Sunday morning. Until the Civil
Rights Era, refusals to serve African Americans were often
cloaked under the guise of religious freedom. As well as
support for slavery, which was given a theological and biblical
undergirding.
In the end we are called here today to stand for the
religious freedom and the rights of the individual. United
States civil courts have rightly rejected the claims of those
who have said that racial integration would violate their
religion.
Invoking religious freedom to deprive people of their
rights is still occurring today. As we see, RFRA is being
misused to cause some harm.
Over the years, individuals and businesses have found ways
to circumvent the original purpose of RFRA to discriminate
against persons and to impose their religious beliefs on those
who believe otherwise or who don't even believe at all.
Personal prejudices have been enforced under the guise of
religious sentiment. In this way some dominant religious groups
have not been able to persuade us to stop the march of greater
equality are now claiming discrimination, trying to use
religious freedom as their last refuge.
In 2018, motivated by this misuse of RFRA and other
religious freedom laws and policies, the Presbyterian Church
passed a resolution to stand against any invocation of
religious freedom in the public sphere that deprives people of
their civil and human rights to equal protection under the law
or that uses religious freedom to justify exclusion and
discrimination.
That is why today the church supports the Do No Harm Act
which will return RFRA to its original intent. It will protect
religious freedom, but not be used to harm others. There can be
no religious freedom without equal respect for the dignity of
all persons. A dignity that is denied when services are
refused. When claims of religious freedom become public efforts
to exclude and discriminate, we are called to speak up for
justice and to stand with the oppressed.
Thank you.
[The statement of Mr. Hawkins follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman SCOTT. Thank you. Under Committee Rule 8a we will
now question the witnesses under the 5-minute rule. And we will
first recognize the gentleman from Connecticut, Mr. Courtney.
Mr. COURTNEY. Thank you, Mr. Scott, for holding this
hearing today. And thank you to all the witnesses for your
testimony this morning.
You know, listening to, again, what we have heard here
today, it does seem we have to go back a little bit to 1994
when the RFRA law was passed. And again, Ms. Laser, you again
sort of alluded to the fact that again, this was an attempt to
rebalance the law after the Smith decision. Can you talk about
what the law looked like prior to that Smith decision in terms
of the balancing test between compelling State interest, as
well as restrictions being, you know, protected?
Chairman SCOTT. Your microphone, please.
Ms. LASER. Prior to the Smith decision the law was much
like the RFRA balancing test intends to be. So if you had a
sincerely held religious belief that was substantially
burdened, the only way that could be overcome is if the
government had a compelling interest and it was narrowly
tailored.
And, you know, that law was sort of working until
Employment Division v. Smith when Scalia wrote his opinion.
RFRA was in response to that previous balancing being out of
whack from Employment Division v. Smith, and that's why so many
groups across political divides came together.
Everyone agreed that these Native Americans engaging in
this healing peyote smoking ceremony deserved protection from
these prohibitions on receiving unemployment if you failed a
drug test. So that's why it came into being.
Unfortunately, soon after RFRA passed in 1993 there started
being indications that it was going to be misused in the ways
that we are seeing so much of today. For example, commercial
landlords right away argued that RFRA gave them the right to
impose their religious beliefs that people shouldn't be
cohabitating before marriage, and to ignore housing
discrimination laws and refuse housing to unmarried couples. So
we did start to see that pretty soon after RFRA passed.
But what's really important is RFRA would have never passed
as a consensus bipartisan bill had it been assumed that it was
going to cover cases like that.
Mr. COURTNEY. So basically what has happened is the
compelling State interest has sort of then continued to be
degraded to the point where it really, again, as has been
testified, became more of a sword rather than a shield in terms
of protected groups.
Ms. LASER. Yes. And in the Hobby Lobby case in particular,
the court actually changed the meaning of substantial burden
and sort of made it much easier to meet, much more like just
meeting the sincerely held religious belief test. And they also
made it harder for the government to prove that they had a
narrowly tailored solution to their compelling interest. And so
the court actually changed the balancing test for the worse
from pre-Smith law in the Hobby Lobby decision.
Mr. COURTNEY. So you have described one example in your
testimony of the homeless shelter refusing access to a
transgender person. Again, the compelling State interest in
that case is where Federal funds are paying to support the
emergency housing. Emergency housing is the compelling State
interest, which should be upheld despite whatever a person's
view is of a transgender or other minority individual.
Ms. LASER. Exactly. Government services are provided for
people in need. We feed people, we give people shelter, we take
care of people when they are in dire conditions.
Like Samantha Coyle in Alaska, who is a transgender woman
who showed up at a government-funded homeless shelter and was
turned away and had to sleep in the woods. And that's not how
we want our government acting, denying much needed services to
people in the name of religion.
Mr. COURTNEY. And other examples of compelling State
interest would be, again, the access to healthcare, coverage
for medically prescribed services. Which again, if you degrade
the compelling State interest it effectively becomes a barrier
from people getting what their doctors tell them they need; is
that correct?
Ms. LASER. Absolutely. We need to put patients first and,
you know, that's not happening with a lot of the regulations
that we are seeing today come out of the Trump Administration
in the name of RFRA and religious freedom.
Mr. COURTNEY. So the Do No Harm Act, I mean is that sort of
the purpose is for Congress, again, to revisit this issue and
to restore what was the original intent of RFRA and, again,
what was traditionally the way the Supreme Court interpreted
the Free Exercise Clause; is that correct?
Ms. LASER. That's right. And also to make sure that we are
holding to the Constitution and the Establishment Clause. The
Do No Harm Act doesn't change the balancing test that we are
talking about. It just makes sure that the Establishment Clause
law is in effect. And the Establishment Clause says that you
can't use your religion to cause harm to third parties.
There's a line of Supreme Court cases that say that Calder
and Cutter, and it was clear from our founding framers as well.
And that is what the Do No Harm Act does.
Mr. COURTNEY. Great. Thank you.
Ms. LASER. Thank you.
Chairman SCOTT. Thank you. The gentleman from Tennessee,
Dr. Roe.
Dr. ROE. Thank you, Mr. Chairman. We have a First Amendment
right to practice our religion in America, and the government
forcing someone to act in a way that violates those beliefs is
in direct opposition to the very foundation of our
Constitution.
The Religious Freedom Restoration Act protects our First
Amendment right. The RFRA does not pre-determine winners and
losers, and in fact is noted in testimony over 80 percent of
the time the court rules in favor of the government, not under
RFRA.
My colleagues on the other side of the aisle will tell you
that RFRA is being used as a license to discriminate. That is
not true. The RFRA protects people of faith from discrimination
by allowing them to challenge government actions that would
burden their freedom to practice their religion. This is not
about forcing religious beliefs on anyone. This is about not
forcing people of faith to abandon their beliefs.
Now I want a question for either Mr. Sharp or Reverend
Hawkins. In 2016 the Obama Administration HHS published final
rules under Section 1557 of the Affordable Care Act that
expanded the definition of sex to include gender identity and
termination of pregnancy.
Under these rules, would religious hospitals or doctors be
forced to offer or perform procedures that violated their
beliefs or values? And what are the consequences for providers
that choose not to violate those beliefs?
I am one of those providers. As a matter of fact, look at
the dais, I am the only one up here. I am an OBGYN doctor. So
what is the answer to that question?
Mr. SHARP. Thank you for the question. And when you look at
what was originally enacted with 1557, it was protecting
against sex discrimination. And then that was ultimately
through an HHS regulation expanded to include gender identity.
But you bring up the importance of the purpose of RFRA and
that balance it provides. Because for a medical provider they
may have deeply held religious beliefs regarding a variety of
medical services. And what we want to make sure is that
provider has a process by which they can go to court and
explain their religious convictions and at the same time the
other side, the government can go to court and explain their
interest involved as well.
What we want to secure is that process for physicians like
yourself, for medical providers across the country, just to
have that access to the doors of justice to plead their case in
court.
Mr. HAWKINS. I think it is indeed a delicate balance, and
it is difficult to have the identity of a doctor and of a
Christian. But I do like the name of the act, Do No Harm. And I
have said in the past that doctors have stolen their Christian
theme because we are called to do no harm in our faith.
I think there are always limitations on either side and I
think that as a minister there are limitations that have to be
imposed upon me and my servant on--
Dr. ROE. The question I have is not that. The question I
have is will I be forced to perform something that I believe is
wrong, which is an abortion.
Mr. HAWKINS. The question is will you be forced? You mean
by government regulations?
Dr. ROE. That is correct. Just what I am asking. If this
happens would providers like myself be forced to do the
procedure they believe is morally wrong?
Mr. HAWKINS. I think there will be times when you have to
struggle with that question.
Dr. ROE. I don't have any struggle with it at all. I have
none.
Mr. HAWKINS. I think that in our Christian walk there are
times when we are, if you want to use the word forced, we are
compelled to do things that might personally bother us. For
example, as I was about to say, as a minister I counsel others.
And yet if I learn--
Dr. ROE. I am not talking about counseling somebody, I am
talking about actually doing a medical procedure, that is what
I am asking.
In the testimony, Mr. Sharp, you then mentioned without
RFRA protections many religious organizations would be forced
to stop providing services such as homeless shelters, community
gardens, nursing home services, and more to the general public.
When it comes to preventing services mandates, do you believe
that the impact would include providing health coverage for
employees? Do you believe that organizations will be forced to
drop coverage all together rather than violate their beliefs?
Mr. SHARP. Thank you. And I think that is among the
concerns that RFRA is designed to help prevent. When you look
at the claims brought by a variety of groups, whether it was
Little Sisters of the Poor, Geneva College, the Mennonite
Conestoga Wood Specialties and others, they were facing this
very difficult choice of we want to take real good care of our
employees but we also have that duty to God that we are trying
to honor. And we want to balance that, and the best way we do
it is let's provide great healthcare but at the same time don't
force us to pay for things and to support things that we
believe violate that sanctity--
Dr. ROE. I want to say one other thing, my time is about
expired. But in the Hyde Amendment it states that we don't
intend to use Federal dollars to fund abortion. I think in the
private business asking for the same protections with private
dollars as with public dollars when they have to provide a
service they don't think they should.
Mr. Chairman, I yield back.
Chairman SCOTT. Thank you. Gentleman from Northern Mariana
Islands, Mr. Sablan.
Mr. SABLAN. Yes. Thank you very much, Mr. Chairman, for
holding today's hearing. I find quiet time every day of my life
to just contemplate on if there is something that I have done
or something I had failed to do to harm someone or make someone
even uncomfortable, and that how I could fix that. I try to
live my life that way. I don't always succeed but I know I am
not condemned to hell because I do that.
But let us talk about recent law. When Congress passed the
Affordable Care Act our country took an historic step forward
on the path toward healthcare justice by protecting millions
more from discrimination in healthcare settings. Specifically
Section 1557 of the ACA prohibits Federal health programs and
entities that receive Federal financial assistance from
discriminating based on the race, color, national origin, sex,
age, and disability status.
I was hoping that the panel might be able to briefly
discuss the importance of these protections for the American
people. So, Ms. Laser, may I ask, prior to the ACA, what
protections existed to prevent discrimination in healthcare,
and how did they compare to the protections in Section 1557?
Ms. LASER. Thank you. The Healthcare Rights Law 1557 is a
landmark piece of legislation in large part because, remarkably
to me actually as a woman, it is the very first law to prohibit
discrimination on the basis of sex by healthcare providers that
receive Federal financial assistance. First time ever in
healthcare law that applies to healthcare programs that receive
financial assistance from the government.
And what that means, according to settled case law, is that
it prohibits not just discrimination against women but
discrimination based on gender identity and also sex
stereotyping. Because that's what the courts have found sex
discrimination includes.
It also includes discrimination on the basis of pregnancy
and pregnancy-related conditions, including termination of
pregnancy.
And the other aspect of this bill that is wonderful is that
it recognizes that there is discrimination in access to
healthcare if you are not acknowledging the difficulties to
access for people who are limited in their English proficiency.
And therefore it brings along provisions that takes care to
give translation notices, tag lines and such for people who are
not native English speakers.
Mr. SABLAN. Yes, like for myself, I have a limited number
of English words every day so once I use it up I get confused.
You know, there really is a reason why there is a saying that,
you know, we don't discuss politics and religion at the kitchen
table when we sit down for a meal, otherwise it could blow up.
But, Ms. Laser, what impact would ending these protections
that we just talk about have on communities historically
subject to discrimination in healthcare as well as the remote
island communities like the colonies, like my district, with
access to challenges and ongoing provider shortages.
Ms. LASER. Yes. You know, sometimes when you belong to a
majority group it is hard to even understand or know the
difficulties and challenges that people face who are part of
minority groups. But there are extensive difficulties that
folks who are part of minority groups face in the healthcare
system, and barriers to access.
People who are transgender reportedly one in four don't
even go and seek care because they are so concerned about being
harassed or turned away by the healthcare system. Women have
confronted many problems. Many studies don't even reflect how
drugs effect women's health. Women haven't been taken into
account, and women would suffer. And so would gays and lesbians
who, you know, lesbians are turned away from physicians,
etcetera.
Mr. SABLAN. Ms. Laser, with my time I have one question.
Reverend, you said this in your statement, ``Today we see RFRA
being misused to cause harm.'' Can you in a very short time
express that?
Mr. HAWKINS. Yes. Many of the cases that we have examined
wherein a transgender woman was fired because she was
transgender. Wherein individuals find themselves such as
seeking to be foster parents, and because of their religious
beliefs, do not align with the agency that is in charge they
are denied the opportunity to be foster parents.
Mr. SABLAN. Yes. But my time is up, but I think God spoke
to someone and said remove that person from this service
because his different religion. There is only one God.
Mr. HAWKINS. Yes. And God loves us all.
Mr. SABLAN. I love you too, Reverend. Thank you.
Chairman SCOTT. Thank you. The gentleman's time has
expired. Mr. Thompson.
Mr. THOMPSON. Thank you, Chairman. Thanks all the members
of the panel for being here.
Mr. Sharp, I appreciate your being here today. A normal
feature of RFRA is that it requires the government to explain
and justify a restriction on religious liberty. I mean our
country was formed by those who were seeking religious liberty.
The government must show that there's a compelling interest
and the restriction is the least restrictive means of achieving
interest. Now does RFRA give individuals some much needed
leverage when dealing with the Federal Government, and does it
increase government transparency and accountability?
Mr. SHARP. Yes. RFRA's a check on oppressive government
regulation. It gives that religious minority whose practices
are burdened by a government rule or regulation a check that
they can go to court and they can let their voice be heard and
have an opportunity to seek relief from what the regulation
imposes on them.
So absolutely it creates government accountability. And it
requires the government not only to respond when it infringes,
but even when they are looking to pass laws, looking to enact
regulations, to take a step back and say is this going to
impact the religious exercise of an individual, and make sure
that they are showing that proper protection and that proper
respect for our First Amendment rights.
Mr. THOMPSON. I would like to follow up about RFRA as it
relates to the Affordable Care Act. As you know, the Trump
Administration released two interim final rules in October 2017
dealing with moral exceptions or religious exemptions for
coverage of certain preventative services under the ACA.
With that being said, can any employer decide that they no
longer wish to pay for preventative services and claim a
religious or moral exception under these recently finalized
rules, and are there guidelines in place for employers looking
to use these exception processes?
Mr. SHARP. Thank you for that question. So after the
Affordable Care Act and the contraceptive mandate we saw
numerous organizations, non-profits, the Little Sisters of the
Poor, Geneva College, and a few closely held businesses as
well, find their beliefs in conflict in the law.
I thought it was interesting, I was reading something
recently, I think it was former ACLU President Nadine Strossen,
and even RFRA was being debated in 1993 and `94, specifically
raised this concern that absent RFRA, and under the Smith
ruling, religious organizations could be forced to provide
abortions or contraceptives. And so what this ruling in Little
Sisters of the Poor and others and this recent interim rules do
is show that proper respect for people's faith. To give those
that have a deeply held religious belief or moral conviction
about the sanctity of life, the opportunity to get an
exemption, not from providing health care but from providing a
handful of contraceptives or other items that they believe
terminate an innocent human life.
And so what these do is protect that freedom of conscience.
Again, a very tailored, balanced approach that protects those
while also furthering the other interests involved in
healthcare.
Mr. THOMPSON. Thank you, Mr. Sharp. Chairman, I yield back
the balance of my time. I yield to the Ranking Member.
Mrs. FOXX. Thank you, gentlemen, for yielding. Mr. Sharp,
your testimony cites several studies on the Religious Freedom
Restoration Act cases. One study said 70 percent of RFRA claims
are made by individuals, 15 percent by houses of worship, and
15 percent by non-profit organizations, educational
institutions and for-profit businesses.
There were only three reported cases brought by for-profit
companies. What does this data say to you about who is being
protected by RFRA?
Mr. SHARP. I think it demonstrates that RFRA is continuing
to serve those who are most impacted by oppressive government
regulations. It is often the individual, the place of worship,
the non-profit, very powerless organizations that most feel the
brunt of any government regulation. And so again, the study you
are referencing was done in 2018, so this is post-Hobby Lobby,
looked at it and said well, what we are continuing to see is a
pattern that these individuals and houses of worship are making
up the majority of cases, the majority of instances where a
person of faith is seeking relief, going to court, and making
their case.
And again, we do want RFRA to extend to everybody. We think
everyone deserves that opportunity, but it is continuing to
serve the groups it intended to.
Mrs. FOXX. Thank you, Mr. Chairman. I yield back to Mr.
Thompson.
Mr. SCOTT. Thank you. The gentlelady from Oregon, Ms.
Bonamici.
Ms. BONAMICI. Thank you, Mr. Chairman and Ranking Member.
Thank you to all of our witnesses, Ms. Laser especially. I
followed the work of the Americans United for Separation of
Church and State for years, and I commend you for so capably
filling the very big shoes of Barry Lynn.
So I am from Oregon, so just for the record the full title
is Employment Division of Oregon v. Smith, the case that
originated in my home State.
I also chair the Civil Rights and Human Services
Subcommittee here on the full committee, and I am deeply
concerned about the Trump Administration's efforts to roll back
individual rights and liberties under the guise of protecting
religious freedom.
And as we have heard from our witnesses this morning, the
intent of the original Religious Freedom Restoration Act was to
protect the rights of religious minorities, not to use religion
to somehow justify discrimination against women, communities of
color, LGBTQ individuals, and other minorities.
So, Reverend Hawkins, thank you for emphasizing the
importance of protecting personal religious views. And just to
follow up on Ranking Member Foxx' question about the number of
cases brought by corporations. To me it is because corporations
don't have religious beliefs, they are corporations. That was
always baffling to me about the Hobby Lobby case to begin with.
But, Reverend Hawkins, in your written testimony you said
legitimizing these kinds of claims as cases of protected
religious freedom would undermine years of progress in State
and Federal civil rights and anti-discrimination law. The key
distinction lies in the choice being limited or projected
personally choosing not to have an abortion or use birth
control, for example, is religious freedom. Making that choice
for someone else on the basis of one's own religious principles
is religious oppression.
I couldn't agree more, the way you phrased it. And how have
the examples, Reverend, how have the examples we have discussed
here today show that RFRA is being used not just to protect
personal views but to infringe on the views and beliefs of
others?
Mr. HAWKINS. If I am an employer and I have the power to
determine who gets hired and who does not get hired, who gets
fired. I have power over that individual. And therefore I can
use my religious views, my beliefs to try to influence them in
a way that goes beyond the quality of work that they are
performing.
We all have religious freedom as individuals, and like you
I kind of question about where the corporations have religious
views. They really reflect the religious views of the
individuals who are in charge.
So I cannot do anything in my personal faith walk to harm
another person. I cannot allow my religious views to say that
well, you are right and I am wrong. Because every religious
view is limited, every person, no matter what denomination you
belong to, there are strengths and weaknesses within that faith
system.
So we have to be careful, especially when we try to
determine who is righteous and who is Christian, who is non-
Christian, and impose our beliefs upon them.
Ms. BONAMICI. Thank you. And, Ms. Laser, I am deeply
concerned about this Administration's ongoing attacks on
women's health and women's right to make their own reproductive
healthcare decisions. And as we have heard today, without
appropriate safeguards, religious liberty can begin to subvert
the rights of other people. And I look at Title X for example,
the Family Planning Program.
The Nation's dedicated source of Federal funding for family
planning and annually Title X health centers provide high
quality family planning and sexual healthcare for four million
predominately low income people.
In 2017 in my own State, nearly 45,000 Oregonians got
lifesaving preventive health services, breast and cervical
cancer screening, testing and treatment for sexually
transmitted diseases, HIV testing, contraceptive service
supplies and information.
And yet now under this Administration this very successful
program is in danger. I look at this domestic gag rule that
basically eliminates comprehensive pregnancy options
counseling. And the result is the government telling doctors
and nurses how to do their job. And essentially the rule is
bending over backward to appease anyone or entity whose opposed
to women's access to comprehensive health services.
So, Ms. Laser, are we seeing a pattern by the
Administration when it comes to attacks on women's health, and
how is religious liberty being used to compromise the health
and safety and decisions, personal health care decisions of
women?
Ms. LASER. Yes. We definitely are seeing that sort of
pattern that you are alluding to, in addition to the Title X
issues and, you know, I would like to remind people that Title
X was signed into law by President Nixon actually originally.
We are also seeing the attacks on women's health in the
form of the final regulations on birth control that we have
been talking about that would allow all bosses to deny access
to affordable birth control to their employees, universities to
deny access to birth control to students.
We actually brought a lawsuit against the Trump
Administration and Notre Dame on behalf of a group of students
at Notre Dame who are seeking affordable birth control there
but their options are being limited by the university.
There is also recently the Denial of Care Rule that the
Administration issued that would allow everyone associated with
the medical industry, from the scheduler to the doctor, to turn
away patients, even in cases of sort of life endangerments,
based on their moral and religious views. And that would also
definitely impact women, over women showing up needing to
terminate an ectopic pregnancy that is endangering her life,
could be turned away based on the Denial of Care Rule.
Then we have got the proposed rule for 1557, the healthcare
law that we were talking about, that the landmark legislation
that put sex discrimination prohibition into Federal healthcare
law that would undermine those protections, erase gender
identity and sex stereotyping entirely from the regulations,
and allow for another gaping hole like you are referencing,
religiously affiliated hospitals and insurance companies to
have a religious exemption when it comes to the sex
discrimination provision.
Ms. BONAMICI. That's very concerning and I see my time has
expired. Thank you, Mr. Chairman, I yield back. Thank you for
your testimony.
Mr. SCOTT. Thank you. Gentlemen from Michigan, Mr. Walberg.
Mr. WALBERG. Thank you, Mr. Chairman. And thank you to the
panel for being here. Mr. Sharp, thank you for standing firmly
for American values, Constitutional values, as a lone voice in
many cases for what we just took for granted.
In a union that wasn't perfect, in fact this union, as our
framers and founders said, we were to make a more perfect
union. That's a continuing effort that we have to do.
For the other members of the panel, again, thank you for
being here, but your testimony is troubling, troubling to me.
As I sense that I am to acquiesce in my faith. My faith is
personal, I don't push it on anybody else. When my faith says
to me that I should take God at his word and act accordingly.
And my God says I am to love all. Those he loves, I must love.
But what he condemns I cannot condone.
Again, that is acts, that is philosophies, that is values
of others, I understand that. But I am a Christian first and a
Congressman second. My faith is not divorced from my life. And
I would expect everyone else who has a similar belief, whatever
that might be, that they in this country should be free. So,
Mr. Sharp, thank you for standing for that.
Regardless of whether we are Judea, Christian, or any other
belief, or no belief at all, that is the beauty of our country.
And when we talk about diversity, if it is diversity
without allowing those of us who have a strong value system
based upon our faith and not express that freely, again, loving
all those that God loves, but not condoning what he condemns.
We have a problem in this country. Northwest Ordinance, a
key principle document for our country, says religion,
morality, knowledge, being necessary to good government and
happiness of mankind, schools and a means of education shall
forever be encouraged. It starts with religion, morality,
knowledge.
Jonathan Witherspoon, a minister who signed the Declaration
of Independence, said a republic once equally poised must
either preserve its virtue or lose its liberty.
As so, Mr. Sharp, thank you for being here today, and the
work you do for religious freedom as a fundamental human right.
I would like to share a situation that is ongoing in my
home State of Michigan. St. Vincent Catholic Charities has been
serving at-risk children in Michigan for over 75 years by
finding foster and adoptive parents for children in need of a
loving home. Sadly, in 2017, the ACLU sued the State of
Michigan to forbid the State from partnering with faith-based
adoption agencies like St. Vincent solely because of their
religious beliefs. That lawsuit led the State of Michigan in
March to announce that contrary to State law, it would stop
partnering with faith-based agencies like St. Vincents.
For Catholics, that we have already talked about, who
couldn't be part of adoption or fostering and other situations.
Over 12,000 children in the State of Michigan are waiting to be
adopted and the State can't find enough families to care for
them. The government is now compelling this agency either do
what we say and violate your beliefs, we can't adopt children.
12,000 innocent children are being impacted.
And then we find one Bethany Christian Children's Services
acquiesces and gives away their faith and says we will do
whatever the State says. That's a violation of our
Constitution.
Mr. Sharp, the government should not be in the business of
forcing adoption. I describe this one case. How would narrowing
RFRA threaten charities and non-profits across the country?
Mr. SHARP. To the exact point you raise, you know, we have
got crises going on. I think the total is over 400,000 children
across the country in need of a loving home. We want as many
organizations as possible to help combat that crisis. But when
you tell them that the cost of them serving those children is
them checking their faith at the door, of abandoning those
principles, it is going to dissuade them from doing so. And so
at the very time we need more involved, we need laws to ensure
that they are encouraged to get involved and if they do they
don't have to worry about the government punishing them for
their beliefs. That is the type of harm that RFRA helps to
protect, by ensuring there is a process for people of faith to
have their religion.
Mr. WALBERG. And there is no other entity out there,
whatever it is, faith or lack of faith, that can be held back
from having those services available to those that they would
choose?
Mr. SHARP. That's right. There are numerous adoption
providers throughout the State that serve same sex couples,
other couples, we want a diversity, we want a variety of groups
all working together to solve this problem, and that includes
ensuring people of faith are part of that.
Mr. WALBERG. And they should step up. I yield back.
Mr. SCOTT. Thank you. Gentleman from California, Mr.
Takano.
Mr. TAKANO. Thank you, Mr. Chairman. Thank you, Chairman
Scott, for holding this very important hearing on religious
liberty.
Liberty is fundamental, it is pre-political, it is pre-
modern, it is part of our human history and is, I agree, is an
important foundation for public morality and personal morality.
But in a Constitutional democracy, one that values
fundamentally not establishing one religious faith over
another, religion should not be used as a shield for
discrimination. When a Federal contractor or a grantee receives
taxpayer dollars to provide a service, they receive taxpayer
dollars to provide a service. And granted there are many, many
different contractors out there. They are stepping into the
shoes of the Federal Government.
If a religious social services organization were to receive
Federal dollars and then also receive a religious exemption
from serving LGBTQ individuals or individuals who may not be of
a faith or any number of ways in which the people of service
may not be in accord with the people who run that agency, that
organization would be using Federal dollars to discriminate.
Now this is a huge problem as it is in direct conflict with
the strong protections the Federal Government has in place not
to discriminate against protected categories such as race,
religion, national origin, sex, sexual orientation, or gender
identity.
Federal services like emergency shelters, workplace
training programs, and housing assistance programs, are
designed by Federal agencies to respond to and identify need
within American communities and should be free from
discrimination.
Now, Mr. Sharp, I am sure you are aware of the specific
example in South Carolina of foster care parents, of HHS
specifically relying on RFRA as a justification to grant them a
waiver to allow them to discriminate against LGBTQ parents who
want to adopt or take in foster children. So they are relying
on RFRA as part of their justification.
They are receiving Federal dollars. Do you think it is
right for a religious organization that does not believe in
serving LGBTQ individuals to be allowed to take Federal dollars
and then also then discriminate against certain categories of
people, including LGBTQ people?
Mr. SHARP. Thank you for that question. One of the beauties
of RFRA is that it does not pick winners and losers. It is that
process, that balancing process. And so when we talk about the
specific context of adoption providers there are a lot of
interests involved.
There is the interest of the birth moms. For many of these
women this is the last decision they are going to get to make
over their child. And they may have a conviction about having
their child raised consistent with a particular religious faith
or particular type of family.
There is the interest of the child involved. There is the
interest of the provider as well in ensuring that they have an
open door to allow them in. So what we are focused on is
ensuring that there is that process, that all of these
balancing can occur between these interests, not guarantee any
outcome, but just allowing them to have that opportunity.
Mr. TAKANO. I understand that. But should any organization
that takes Federal dollars, in this case an organization that
is, you know, adoption agency. Should they be allowed to
discriminate against people who are maybe LGBTQ or people who
are non-believers?
Mr. SHARP. And again, I would say two things. No. 1, part
of RFRA is that it is a very fact-specific analysis. It is what
Justice Chief Roberts--
Mr. TAKANO. I understand you are referring to RFRA, but I
am asking a very specific question. In principle, as a policy,
should they be able to, after receiving Federal dollars,
Federal taxpayer dollars, dollars that are intended for a
certain need, should they be able to discriminate against any
number of categories of people?
Mr. SHARP. And again, I am going to go back, but RFRA is
about balancing all those interests. And we have to ensure that
the interest--
Mr. TAKANO. I am not asking about RFRA right now, I am
asking you simply should that be allowed to occur? Should we as
a matter of policy from the Federal Government, allow anyone to
receive Federal dollars and then have that entity go ahead and
discriminate against American citizens or Americans?
Mr. SHARP. I think we want to ensure that every religious
organization--
Mr. TAKANO. Mr. Sharp, I think the answer is very simple
and you're dancing around it.
Ms. Laser, can you answer that question?
Ms. LASER. Here's the thing. So you can't have it both
ways. If faith-based groups want to be eligible to receive
government funding to perform government services, then they
have to play by the same rules as everyone else. We have anti-
discrimination laws in place because those are shared secular
American laws that we have passed. We have come together and
democracy brings all of our different faith views together.
When I worked for the Religious Action Center of Reformed
Judaism, I brought a Jewish perspective to you all to argue for
laws to become a certain way based on Jewish values. But the
democracy process translates those values into shared American
values. Values that we can all live under, that we can
peacefully co-exist in such a diverse religiously pluralistic
society that we are. Religion should not be used to carve out
exceptions from where the government has committed to providing
services to people in need.
And the Establishment Clause makes clear that is not how
religious freedom is intended, through a line of Supreme Court
cases. So the answer is no.
Mr. TAKANO. Mr. Chairman, my time has run out. I thank you
for this hearing.
Mr. SCOTT. Thank you. Gentleman from Kentucky, Mr. Guthrie.
Mr. GUTHRIE. Thank you. Thank you all for being here today,
I appreciate it very much.
Mr. Sharp, constituents across my district come from
various faith backgrounds. Can you expand on how the Religious
Freedom Restoration Act does not favor a particular religion,
and can you elaborate on how detrimental the Do No Harm Act
would be to all individuals willing to express their religion?
Mr. SHARP. Thank you for that question. The Religious
Freedom Restoration Act was both enacted and has been used by a
diverse array of religious groups. As I discussed earlier, from
Muslims and Christians and Catholics to Rastafarians and Sikhs
and Humanists, and so many others. It is continuing to be used
by a very diverse group of individuals who all simply want to
ensure that if a government regulation burdens their ability to
live out their faith, and I do believe that every religious
organization should be free to live consistent with their
faith, that they have a process to go seek judicial relief.
What the Do No Harm Act takes away that opportunity for
relief. Shutting the doors of the courthouse to a lot of
individuals or organizations if their claims fall out of
disfavor, if their claims are now exempt under the Do No Harm.
And I think it is very clear looking at the Do No Harm what
it is meant to go after. It is meant to go after a lot of the
unpopular outcomes recently, a lot of the unpopular things we
see religious groups doing.
But I think in a time like that RFRA is more urgent than
necessary to ensure that the political whims don't dictate
whether an individual or organization's faith is respected.
Mr. GUTHRIE. Okay. Well a follow up on that. Without the
Religious Freedom Restoration Act would faith-based groups need
to ask for exemptions from every law or draft legislation that
could unintentionally take away their freedom?
Mr. SHARP. Yes. I think that is exactly one of the issues
is imagine where a government regulation comes along and you
have got a small congregation, a small group of believers, they
don't have the power to go and request that. They don't have
the lobby, they don't have the support to do that. And so what
is going to happen is they are going to be steamrolled by this
government regulation.
What RFRA does is that if such a regulation passes and a
powerless group finds themselves subject to it, they now have a
safety valve, a way to go to court and say judge, this is
violating our beliefs, these are our sincerely held religious
beliefs. And the government can show up and explain why it has
got a compelling interest. But it ensures that they have got a
process for justice.
Mr. GUTHRIE. Thank you very much. And that concludes my
questions. I will yield the remaining of my time to the Ranking
Member, to the Republican leader.
Mrs. FOXX. I thank the gentleman from Kentucky for
yielding.
I have a question, Mr. Sharp, and I would like to make a
couple of statements and then see if you agree or disagree.
No. 1, I want to emphasize over and over again a very
important statement you made. Disagreement is not
discrimination. In our beliefs we disagree, but that does not
mean we are discriminating. And in my opinion disagreeing
doesn't mean I am imposing my beliefs on you.
So I totally disagree with the statement that by
disagreeing I am imposing my beliefs on someone else.
Also it has been said we can't have it both ways. Well it
seems to me the very act that created RFRA undermines that.
Those people wanting to smoke peyote, the government said it is
okay because it is part of their religious belief. So it seems
to me the very thing that created RFRA has undone all these
comments we have heard from others.
But let me go back to my question. And if I have said
anything wrong, please correct me. I was struck by the
statistic in your testimony, courts rule in favor of the
government in over 85 percent of RFRA cases.
So the government wins 85 percent of the time. Does this
suggest to you that RFRA is being used to make sweeping changes
to society, or does it merely provide an opportunity to argue
for a religious exemption in court in the most efficient way
that we currently have?
Mr. SHARP. The latter. RFRA is providing that opportunity
to seek relief from government regulation. And as Chief Justice
Robert's words, and I was sure were very apt, he said I trust
the judiciary to be able to weed out the cases, to see when
there is sincerely held religious beliefs that are being
burdened and when there is frivolous claims. And I think what
we are seeing is the judiciary is capable of doing that and is
doing a great job while also simultaneously ensuring that when
we do have regulations that truly infringe upon religious
liberty, relief is available.
Mrs. FOXX. Thank you. And I make one more comment. We have
heard the word comprehensive health services used here. It is
my understanding that Planned Parenthood is happy to encourage
women to have abortions but never discuss with them that they
can keep their child and put it up for adoption. That is not
comprehensive.
I yield back to the gentleman from Kentucky.
Mr. SCOTT. The gentlelady from North Carolina, Dr. Adams.
Ms. ADAMS. Thank you, Mr. Chairman and to the Ranking
Member as well for convening today's hearing, and to the
witnesses, thank you very much for your testimony.
Many on this committee are too familiar with the alarming
statistics on maternal mortality in this country. The problem
is particularly alarming among black women who face maternal
mortality rates that are three to four times higher than their
white peers.
And that is why my colleague, Congresswoman Underwood, and
I founded the Black Maternal Health Caucus just a month or so
ago to focus on this issue and on the disparities that we are
seeing.
Now given this focus, I am concerned that the Trump
Administration's rulemaking which will allow health providers
to deny care to pregnant women will only exacerbate the
maternal mortality crisis that we are facing. Studies have
shown that black women already receive lower quality obstetric
care, and many experience maternity care deserts. Meaning they
live in counties where access to maternity care services is
limited or absent.
Ms. Wilcher, how do you believe the Trump Administration's
final rule on refusal of care will impact the ability of Black
women to obtain quality medical care?
Ms. WILCHER. Again, my focus is employment, but my view is
that we are concerned about the implications of RFRA on a
number of fronts, and concerned about the issues related to
African American women and care. I mean just because we have
been watching that.
Ms. ADAMS. So ultimately how do you think the rule will
impact the rate of maternal mortality among Black women?
Ms. WILCHER. We are concerned about the rate of maternal
mortality. And this Administration in many ways has done things
that have had a deleterious impact on people of color, and
particularly in the healthcare field. So I wouldn't be
surprised.
Ms. ADAMS. Okay. To follow up, in your opinion, do you
believe that the rulemaking would delay emergency care for
pregnant women who desperately need certain services or
procedures or face a lost pregnancy or even their own death?
Ms. WILCHER. Well rulemaking, it would have an impact in
terms of delaying individuals receiving services, most
definitely. And that has real human consequences.
Ms. ADAMS. Thank you. I think it is important, Mr.
Chairman, to note that the Trump Administration's rules do not
protect anyone's freedom, as far as I am concerned. If
anything, it takes away from freedom from the millions of women
who need lifesaving care.
The attacks on Title X and on the ACA's contraceptive
mandate and on ACA's anti-discrimination protections are an
attack on the civil rights of millions of Americans. That is
just plain and simple. So if anything comes out of this
hearing, let it be that message.
So before I yield back, Mr. Chairman, I would like to
submit for the record an article from the American Civil
Liberties Union that tells the story of Tamisha Mayes, a
Michigan resident who almost died when her local hospital
turned her away after they refused to provide abortion
services.
And, Mr. Chairman, I will yield my time back to Ms. Hines.
Ms. Hayes, I am sorry, I will yield my time to Ms. Hayes.
Thank you.
Mr. Chairman, can I submit for the record this article from
the Deputy ACLU Reproductive Freedom Project.
Mr. SCOTT. Without objection. The gentlelady from
Connecticut.
Ms. HAYES. Thank you, Mr. Chair. I just have a question
really quickly for Mr. Sharp.
Very briefly, do you believe that ensuring all children are
provided with a loving and safe home is, as you put it, a
draconian rule?
Mr. SHARP. No, I believe providing every child with a
secure and safe home is part of what motivates the importance
of protections like RFRA to ensure that a diversity of
providers feel free to go in without having to compromise their
faith is the price of helping to serve these children.
Ms. HAYES. Okay. Do you think that single mothers are unfit
to provide a home to foster children?
Mr. SHARP. I personally don't. But I also understand that
there are many birth mothers who may wish for their child to be
placed in the home of a mother and father, that is what they
want best.
There may be other considerations involved and we want to
take all of those into the balance when we are looking at how
RFRA applies and how these faith-based providers, birth moms
and children, all of their interests should be protected.
Ms. HAYES. Perfect. Thank you so much. I will come back
during my line of questioning.
Mr. SCOTT. The gentleman from Alabama, Mr. Byrne.
Mr. BYRNE. Thank you, Mr. Chairman.
Mr. Sharp, I am going to read you a few quotes regarding
the Religious Freedom Restoration Act. First quote ``Without
the Religious Freedom Restoration Act the fundamental religious
rights of all Americans to worship as their consciences dictate
will remain threatened.'' Any idea who said that?
Mr. SHARP. I don't.
Mr. BYRNE. That was Judiciary Chairman Jerry Nadler. Second
quote ``The founders of our Nation, the American people today
know, that religious freedom is no luxury but is a basic right
of a free people. RFRA restores the First Amendment to its
proper place as one of the cornerstones of our democracy. It is
simple. It states that the government can infringe on religious
practice only if there is a compelling interest and if the
restriction is narrowly tailored to further that interest.''
Any idea who said that?
Mr. SHARP. A person of great wisdom.
Mr. BYRNE. Senate Minority Leader Chuck Schumer.
Third quote ``After Employment Division v. Smith, more than
50 cases were decided against religious claimants. Amish
farmers were forced to affix garish warning signs to their
buggies despite expert testimony that more modest silver
reflector tape would be sufficient. Orthodox Jews were
subjected to unnecessary autopsies in violation of their
family's religious faith, and one Catholic teaching hospital
lost its accreditation for refusing to provide abortion
services. RFRA is an opportunity to correct these injustices.''
Any idea who said that?
Mr. SHARP. No, sir.
Mr. BYRNE. Majority Leader Steny Hoyer.
Mr. Chairman, I ask unanimous consent to insert into the
record a copy of the House floor Proceedings from passage of
the Religious Freedom Restoration Act in 1993.
You know, I wish my colleagues would actually go back and
read the Congressional Record from--
Mr. SCOTT. Without objection.
Mr. BYRNE. Thank you, sir. Back then Republicans and
Democrats alike were united in a belief that the fundamental
right of the free exercise of religion was worthy of the
highest level of judicial protection. Congress did not enact a
guaranteed win for people of faith, but restored, as you said,
a balancing test. The religious individuals or organizations
exercise against the government's compelling interest in
restricting that activity.
As we have already heard today, the government's winning
over 80 percent of the time. Yet the few wins for people of
faith that they have gotten in recent years have really upset
the majority.
This hearing is entitled the Misapplication of the
Religious Freedom Restoration Act, but it should be clear to
all that RFRA is being applied exactly as it was intended. The
difference is not the law, it is in my Democratic colleagues'
point of view since 26 years ago.
Frankly, this committee should question why we are even
considering taking away the rights of citizens to freely
practice their faith. This legislation does not live up to the
ideals of our great Nation's Constitution. And we need to stand
up for people of faith who are under attack in America today.
There is a fundamental conflict in values in this country,
and there is a determined minority, an intolerant minority,
that would tell the majority in this country who are people of
faith, you cannot exercise your faith because we find it
repugnant in some way. Well that is not what the Constitution
is about. That is not the reason this country was founded. This
country was founded so we can all freely exercise our religion.
It is not a secondary right.
This bill, and I have tremendous respect for the sponsor of
this bill. This bill, in essence, would make everybody's right
to freely exercise their religion a secondary thing. Well to
millions, tens of millions of Americans it is the primary
source of their meaning in life. And they would take that away
from them. For what? For a handful of cases that have gone the
other way when 80 plus percent have gone the government's way?
That is how fundamental the conflict and values in this
country has become. And we in this Congress should stand up for
the majority of Americans who have Judeo-Christian values and
say you can continue to exercise your faith and we, the
government, are not going to take that away from you.
With that, Mr. Chairman, I yield back.
Mr. SCOTT. Thank you. The gentlelady from Washington, Ms.
Jayapal.
Ms. JAYAPAL. Thank you, Mr. Chairman. I think we have to
stand up for everyone's religious freedom, not just those with
Judeo-Christian values.
The right to religious freedom is the foundational value of
the United States of America and it is enshrined in our
Constitution. To ensure those freedoms are protected, the
Religious Freedom Restoration Act, also known as RFRA, was
introduced 25 years ago. And we have heard today through many
of you that have testified, the concerns about the Trump
Administration's cooptation of RFRA and the idea of religious
liberty as a tool to threaten basic human rights of LBGTQ
Americans, women, religious minorities, and other vulnerable
communities.
Religious exemptions should never be used to override those
non-discrimination provisions in any venue, and certainly not
in the area I want to focus on in my questioning, in the area
of healthcare.
And that's why the Affordable Care Act contained important
provisions that protected people from discrimination on the
basis of race and color and national origin, sex, age, or
disability, as well as ensuring that employer-sponsored
insurance plans would provide adequate contraceptive services
with no cost sharing.
I have to tell you I have watched in horror as I have seen
the Republicans and Trump Administration strip away those exact
healthcare protections, leaving millions of Americans
vulnerable to discrimination or denial of access to critical
healthcare services.
And there has been an attack on American's healthcare by
abusing RFRA as a basis to discriminate against women, for
example, who are seeking access to reproductive health
services.
Recently I shared a very personal story, the first time I
had ever done so in my life, to highlight why women have to be
able to access the reproductive healthcare services they need.
For me, making a deeply personal choice about abortion was a
difficult enough choice on its own. I cannot imagine how much
more difficult that choice would have been had I been denied
care due to discrimination.
So, Ms. Laser, I hope I said that right. Your testimony
highlights how the recent rules in the Trump Administration are
contributing to discrimination in healthcare, and particularly
for access to reproductive health services.
Can you please describe why access to reproductive health
services is critical not only for women's health, but also for
furthering women's equality?
Ms. LASER. Thank you for that question. And thank you for
your beautiful op ed on your own story about your own
reproductive freedom needs. Really appreciate it.
Sure. Contraception, I mean it sort of boggles my mind that
we are in 2019 and still needing to talk about why
contraception is important to women. When the Affordable Care
Act passed, they actually delegated to the Institute of
Medicine the decision about what is preventive healthcare and
what is not. What is that important that it needs to be
covered? And the Institute of Medicine said all forms of
contraception need to be covered because that is preventive
healthcare.
Women use birth control for a variety of different reasons.
One of them is medical. Lots of women, 30 percent, use
contraception at least in part to manage a medical condition
like endometriosis, ovarian cysts, chronic migraines, and
menstrual disorders.
Some women also have medical needs to use different forms
of contraception. For example breast cancer runs in my family
so contraception that is hormonal based isn't advised.
There are very important social and economic status needs
for women to be able to use birth control. And I am a huge fan
of children, in fact, two of my children are sitting behind me
today, right over here. They left. My husband is still here,
but they left. That is terrible.
But in any case, I have three children of my own. But it is
very important to be able to plan when you have them so that
you can stay in school, for example. There are studies that
show that women are much more likely to find themselves in
poverty if they have to drop out of school when they weren't
planning to have a child.
It enables women to be equal participants in society. They
say that most women not using birth control would have 12 to 15
children in the course of their lifetime.
Ms. JAYAPAL. Let me ask you specifically about unintended
consequences, or perhaps intended consequences of allowing
employers not to provide contraception. You have spoken to the
broad range of issues very well, and your children should be
proud of you.
But let us talk about employer plans for a second, and
those unintended consequences.
Ms. LASER. Sure. Unintended consequences?
Ms. JAYAPAL. Or intended, however you want to take it.
Ms. LASER. Well, lots of women, or transgender men who work
for employers who are imposing their own religious views on
women, despite what our shared American laws say, which is that
all contraception has to be covered with no cost sharing, are
suffering because they can't afford contraception.
And that is what we have heard from the students at Notre
Dame, at Irish for Reproductive Health. Some birth control can
be very expensive. Like an IUD can cost $1,000 or $1,200 and
can be really cost prohibitive. Women have to decide between
child care and birth control, between putting food on the table
and birth control. These are very dangerous decisions that
women make because it can affect women's health, as we have
discussed.
When an employer just decides to impose his or her religion
on the women in need who are working for them, despite what is
promised by our shared American law and our best medical
judgments from the Institute of Medicine, that is putting
women's lives and health at risk. But also women's economic and
social status.
Ms. JAYAPAL. Thank you so much, I appreciate that. I see my
time has expired. I yield back.
Mr. SCOTT. Thank you. The gentleman from Indiana, Mr.
Banks.
Mr. BANKS. Thank you, Mr. Chairman.
Today's legislation hearing show so many of us just how
much times have changed. In 1993 RFRA passed both the House and
the Senate with near unanimous bipartisan support. Then
Representative Chuck Schumer was the lead sponsor in the House
of Representatives while Senator Edward Kennedy carried the
bill in the Senate where it received 97 votes.
When President Clinton enthusiastically signed the bill
into law he noted how a ``Broad coalition of Americans came
together to make this bill a reality.''
Mr. Chairman, the 1990's weren't exactly a time of
bipartisan unity, yet despite the intense political debates
that took place, Republicans and Democrats came together to
protect the religious freedom of all Americans.
Religious liberty remains the bedrock of the American
experiment, and Republicans remain firmly in favor of RFRA
protections. Unfortunately, my friends on the other side of the
aisle are fighting tooth and nail to eliminate religious
liberty and advance the radical pro-abortion agenda by rolling
back common sense conscience protections.
My first question is a simple yes or no question. And, Ms.
Laser, I will start with you. Do you think doctors or nurses
should be forced to participate in abortions, yes or no?
Ms. LASER. That is a more complicated one.
Mr. BANKS. That is what I thought you would say. Ms.
Wilcher, do you think that doctors or nurses should be forced
to participate in abortions?
Ms. WILCHER. As my colleague said, it is complicated.
Mr. BANKS. Reverend Hawkins. Do you think doctors or nurses
should be forced to participate in abortions?
Mr. HAWKINS. To be forced, again?
Mr. BANKS. Should be forced to participate in abortions?
Mr. HAWKINS. I don't think they should be forced.
Mr. BANKS. Okay. Mr. Sharp, do you think doctors or nurses
should be forced to participate in abortions?
Mr. SHARP. No.
Mr. BANKS. Thank you. Mr. Sharp, as you testified, Congress
intended RFRA to serve as a balancing test, not picking winners
or losers, but respecting the faith practices of all Americans.
RFRA does not allow the Federal Government to burden religious
practice unless it can prove that it has a really good reason
or a compelling interest and that the government's purpose is
accomplished with as little a burden as possible on the
individual.
This balancing test has been instrumental in numerous U.S.
Supreme Court decisions. Take for example the Zubik v. Burwell
decision where a unanimous court ordered that the government
stop penalizing the Little Sisters of the Poor, an order of
Catholic nuns, for choosing healthcare that meets their needs.
Or the 9 to 0 U.S. Supreme Court decision Holt v. Hobbs
case which permitted a Muslim inmate to have a half-inch beard.
Mr. Sharp, do you think the Supreme Court was wrong in
those decisions to uphold a religious liberty?
Mr. SHARP. No, I think they did exactly what RFRA was
designed to do, protect religious liberty, provide people of
faith an opportunity to get relief.
Mr. BANKS. Okay. And as a follow up to that, Mr. Sharp, who
is best to define what the tenants of the Catholic faith are,
the government or the Little Sisters of the Poor?
Mr. SHARP. The Little Sisters of the Poor.
Mr. BANKS. Go ahead and expand on that.
Mr. SHARP. We should all be worried when the government has
the authority to determine what a particular faith believes or
whether certain beliefs are consistent with a faith.
There has been numerous Supreme Court decisions on that
exact issue. We want religious individuals who have a duty to
the omnipotent being that they serve, to alone be responsible
for determining what they are compelled to do, what they feel
that their faith defines them. And what the government's role
is to provide broad protections for that belief so that those
individuals are not forced to do something that they believe
violates those deeply held beliefs.
Mr. BANKS. Okay. Thank you. With the time I have remaining
I will yield it to Dr. Foxx.
Mrs. FOXX. Thank you, Mr. Banks. Mr. Sharp, in August,
2018, the Department of Labor's Office of Federal Contract
Compliance Programs issued a directive to provide guidance to
its staff and Federal contractors on enforcement and
compliance.
The directive summarized Supreme Court rulings that the
government must permit individuals and organizations, with rare
exceptions, to participate in government programs without
having to disavow their religious character. Are you familiar
with this directive, and did it accurately characterize the
law?
Mr. SHARP. Yes, I am. In fact it was motivated in part by
one of ADS cases, Trinity Lutheran. It involved a pre-school
program that wanted access to shredded tires, playground mulch
so their little kids at the program don't skin their knee when
they go down the slide. And despite checking all the boxes and
satisfying all the requirements, they were denied from
participating in that government program because they were
religious.
No religious contractor should be subject to the same
thing. They should all have equal access.
Mrs. FOXX. Thank you very much. I yield to the gentleman
from Indiana.
Mr. SCOTT. The gentleman from New York, Mr. Morelle.
Mr. MORELLE. Thank you, Chairman Scott, for holding this
important hearing today, and to all our witnesses for being
here this morning.
I want to pick up a little bit on what Ms. Jayapal's
questions were about. I have had the privilege of serving on
this committee since January of this year, and in those 6
months my colleagues and I have sat in this room and heard from
multiple witnesses who are expert on a number of issues related
to healthcare. And they have allowed us to respond to the
parade of ways that the Administration has attempted to
undermine the Affordable Care Act and roll back protections for
millions of Americans.
In February we talked about the 102 million people who,
prior to the ACA, had lifetime limits on their health plans.
People, to pay for high cost medical conditions like cancers,
out of pocket, should the Administration be successful in its
attempts to repeal the Affordable Care Act.
In April we held a hearing on short-term limited duration
health insurance plans, a form of health coverage that is a
poor substitute for comprehensive insurance.
And today this discussion, the use of the Religious Freedom
Restoration Act, which other people have opined on and
described, to hack away at the stability of the ACA.
I find this horrifying, but hardly surprising. Since 2017
we have seen countless attempts and efforts to roll back our
healthcare system on LGBTQ and patients in other marginalized
communities. And I wanted to get some thoughts about this.
In 2016 the Obama Administration finalized regulations to
ensure that civil rights protections under Section 1557, the
Affordable Care Act, applied to a wide range of entities that
received Federal funding, including hospitals, insurance
companies, government entities, and other organizations.
Last month the Trump Administration proposed a rule which
would entirely remove a definition for covered entity.
Ms. Laser, can you share your assessment of the Trump
Administration's decision to seemingly scale back the number of
entities to which Section 1557 applies?
Ms. LASER. Sure. So it is my understanding that the
proposed rule would change who has to comply with 1557, and
limits the number of insurance plans and the number of Federal
health programs that have to comply.
Which would drastically change the scope of existing non-
discrimination protections, further limiting access to
healthcare. That would be the effect. Furthermore, under the
proposed rule, religiously affiliated hospitals and insurance
companies can exempt themselves from the sex discrimination
requirements in this provision.
So it is another regulation in the name of religion that is
turning back rights and protections that the American people
have decided to give to vulnerable communities.
Mr. MORELLE. And while it is true that most of the
conversation today, as I followed it, is really centered around
reproductive rights. The truth is that you can use a religious
exemption to anything that you ultimatly decide, even though it
discriminates against someone, might apply to your religious
freedoms. I mean, you know, new religions can pop up and you
could have all kinds of things relative to healthcare that a
religious group would find objectionable too. And there are
some religions that object to medical care entirely.
So certainly while we have talked about reproductive
rights, understandably and necessarily, it is certainly not
limited to that.
I wanted to just get, again, Ms. Laser, from you, your
thoughts on this. In January of last year the Trump
Administration created a new Conscience and Religious Freedom
Division within the Office of Civil Rights at HHS. I am just
wondering, are you aware of any initiatives the Division has
undertaken over the past year that have improved access to
healthcare for marginalized communities?
Ms. LASER. I am aware of none. In fact quite the contrary.
It is my understanding that this is the Division behind the
Denial of Care Rule that I spoke about earlier which would
decrease instead of increase access to healthcare for
marginalized communities.
Mr. MORELLE. And in your opinion was the Division necessary
to protect the so-called rights of healthcare workers?
Ms. LASER. No, because those rights were already being
protected by the Office of Civil Rights at HHS even before
that. HHS has successfully protected those interests, as
defined by Congress, and, nope, that was being taken care of.
Mr. MORELLE. Very good. Thank you. Mr. Chair, I yield back
my time.
Mr. SCOTT. The gentleman from Texas, Mr. Taylor.
Mr. TAYLOR. Thank you, Mr. Chairman. I appreciate this
hearing, appreciate the witnesses.
Just a quick question. Should a parent, does the parent
have the right to raise their child in their faith? Does a
parent have that right? I mean does a Muslim parent have a
right to raise their child as a Muslim, a Christian parent as a
Christian, a Jewish parent as a Jew. I mean does that seem
reasonable to you? Yes or no question, does that seem
reasonable to you?
Ms. LASER. Absolutely.
Mr. TAYLOR. Does that seem reasonable to you? Just going
down the line here.
Ms. WILCHER. Yes.
Mr. SHARP. Yes.
Mr. TAYLOR. Does that seem reasonable to you?
Mr. HAWKINS. Yes, as long as that faith does not impact
others negatively.
Mr. TAYLOR. All right. Okay. So in that vein I think we
begin that fundamental parental right for faith, you know, it
seems reasonable that, you know, a Catholic parent who is
giving their child up for adoption could say I want my child to
be raised as a Catholic once they are adopted.
I think if we are going to begin with that fundamental
right of a parent's decision about faith, that faith should
extend even if they give the child up for adoption.
And I think that applies for, and I happen to represent a
very diverse community. I live right next to the largest
Synagogue in Collen County. We actually have the largest Mosque
in North Texas in my district. I have a very large Hindu
community in Frisco, Texas. And, you know, I want to defend all
their faiths. I want to defend those parents' ability if they
decide that they don't think that they can raise a child and
they want that child to be adopted, that they should be able to
choose a faith-based organization to raise their child in the
faith of their choice.
And I think that RFRA is something that defends that,
defends the very basic premise that we all agree with here,
right? We all agree that a parent should choose the faith of
their child.
And so when we think about in Texas, you know, I have a 100
percent meeting policy, I meet with all my constituents, I have
had 250 meetings so far in the last 6 months, been pretty busy.
But, you know, in those meetings I have actually had the
opportunity to meet with community leaders who are working on
foster care. And they tell me that while we have lots of beds
in Collin County, other communities are using those beds, you
know, for foster care. And so it is so important to have as
many possible foster care opportunities as possible. So having
religious based foster care organizations increases the
opportunities. More beds, it is better for the children.
And so, Mr. Sharp, can you just speak to that? I mean like
the need for having foster care and for people to be able to
make religious choices about their children, even if they are
not raising their children?
Mr. SHARP. Absolutely. And I think that highlights the
importance of RFRA and the harm of Do No Harm.
When you have a birth mom that reaches out and says I would
like my child to be raised consistent with this faith, an
adoption provider that tries to honor that quest, under Do No
Harm, could now find themselves facing government restriction
and punishment for trying to honor the interest and request of
that birth mom.
But under RFRA that faith-based provider has the
opportunity to go into court and say we are representing the
interest of the birth mom, wanting to protect that parental
right interest and ensure that her wishes are respected.
And so they get that opportunity to go into court and make
that case. And that's so important.
Mr. TAYLOR. I appreciate that. I think RFRA really does
protect all faith communities. And again, I have the privilege
of representing a very diverse community with many faith
communities. And as I talk to the people that care about
children, that this is an extremely important fundamental piece
of statute. Certainly in Texas we have worked to preserve the
abilities so that we have as many choices as possible for
parents, whatever their faith may be, to protect a right that I
am glad to see we all agree that parents should be able to
choose the faith of their child.
I yield the balance of my time to the Ranking Member.
Mrs. FOXX. I thank the gentleman from Texas.
Mr. Sharp, when he signed RFRA into law, President Clinton
said the government ``Should be held to a very high level of
proof before it interferes with someone's exercise of
religion.''
Do you think President Clinton described the appropriate
legal standard in free exercise cases?
Mr. SHARP. Thank you. And I do. We look at freedom of
speech, free exercise of a religion, freedom of the press, many
of these others that are these bedrock Constitutional
principles that our courts have long said when the government
tries to restrict those it better have a really good reason to
do so. Employment Division v. Smith undercut that specifically
for religion, and RFRA restores it.
And so I agree with President Clinton. This is respecting
the proper place that religion holds in our Constitutional
system.
Mrs. FOXX. And just for the sake of it, we are midway into
this hearing, I am going to quote again the first part of the
First Amendment to the Constitution. ``Congress shall make no
law respecting an establishment of religion, or prohibiting the
free exercise thereof.''
That last part is often left out when people talk about our
rights, and I think it is important to emphasize it.
I yield back to the gentleman from Texas, Mr. Chairman.
Mr. TAYLOR. Yield back.
Mr. SCOTT. Thank you. Gentlelady from Pennsylvania, Ms.
Wild.
Ms. WILD. Thank you, Mr. Chairman. Ms. Laser, I feel your
pain. My two young adult children were so scarce on the
campaign trail that some people didn't believe I had kids.
Moving on, I am dismayed that the questions and the answers
on this very important subject seem to be falling along party
lines. This is an issue that I don't believe should be
partisan.
A separation of church and State is enshrined in our
Constitution. Sadly, I often feel that my colleagues on the
other side of the aisle only have respect for one of the
Amendments in the Bill of Rights, and perhaps only part of that
Amendment.
In any event, RFRA's restored the use of strict scrutiny as
the standard to be employed by the courts in reviewing actions
that may infringe on the free exercise of religion. And for the
non-lawyers in the room, strict scrutiny means that the
government must have a compelling government interest before
imposing a substantial burden on religious exercise or in
allowing the intrusion of religion in government matters.
So moving on to the Affordable Care Act, which is lawfully
the law of this land, and was lawfully passed. Section 2713 of
the ACA requires individual and employer-provided health plans
to cover certain key preventive services, including all forms
of FDA approved contraceptive methods, along with prenatal
care, counseling for sexually transmitted infections, and
screening for domestic violence.
In implementing this requirement the Obama Administration
provided a very narrow exemption to accommodate certain
religious non-profit employers, such as churches, that objected
to contraception coverage.
But in October of 2017 the current Administration
promulgated two interim final rules that allow virtually any
employer or institution of higher education to circumvent the
contraceptive coverage requirement entirely.
And then we have Hobby Lobby v. Burwell in which the
plaintiffs, Hobby Lobby, a closely held for-profit corporation,
whose owners opposed contraception based on their religious
beliefs, successfully argued that they should be exempted from
the ACA and its regulations requiring coverage of contraceptive
care. I stress to you, it is a corporation, not a 501C3
religious institution.
So my first question, and just a show of the hands here, is
there any one of you who disagrees that a corporation is
separate and distinct from its individual owners, officers, and
board of directors? Is there anyone that disagrees with that
concept?
Okay, seeing none, is there anyone that disagrees that a
business like Hobby Lobby aims to make a profit? You disagree
with that, Mr. Sharp. So noted for the record.
Do any of you, and specifically you, Mr. Sharp, do you know
what is on Hobby Lobby's website?
Mr. SHARP. I believe when you look at Hobby Lobby--
Ms. WILD. No, my question is do you know what is on their
website?
Mr. SHARP. I don't know everything on their website, but I
know their devout belief in God is.
Ms. WILD. Well let me tell you what is on their website
because I looked at it. It includes a link to shop departments
for crafts and hobbies. It has coupons for tabletop decor,
summer toys, yarn, furniture, and wearable art. There is
nothing on Hobby Lobby's website that promotes the owner's
preferred religion.
Despite the fact that you all agree that a corporation
should be treated separately from the individual owners, and
despite the fact that Hobby Lobby is in business to make money,
and its own website makes no reference to its owner's religious
beliefs, we allow that company's owners to dictate their
religious beliefs upon their employees by denying contraceptive
coverage to those employees. So what does that mean for its
employees who are of child-bearing age?
Any one of you care to answer that one?
It means they can't get contraceptive coverage, right?
Other than seeking alternative employment.
It wasn't the Federal Government that was restricting Hobby
Lobby's religious freedom. Hobby Lobby isn't even a 501C3 place
of worship. It was really the owners of Hobby Lobby that were
trying to avoid compliance with the ACA.
So let me ask you this, Mr. Sharp. Would you allow a
restaurant owner to forbid African Americans from sitting at
the lunch counter to avoid desegregation laws?
Mr. SHARP. No. RFRA has never been used that way, and if
anyone attempted to, they would lose because the government has
a compelling interest in eradicating discrimination based on
race.
Ms. WILD. That is your opinion. Thank you.
I yield back.
Mr. SCOTT. Thank you. Gentlelady's time has expired. The
gentleman from Pennsylvania, Mr. Smucker.
Mr. SMUCKER. Thank you, Mr. Chairman. Like the previous
questioner, I come from Pennsylvania, which really was seen as
an example of religious liberty of all the colonies originally.
In fact the founders who came to Philadelphia for the
Constitutional Convention marveled at the diversity of religion
across the city, and in what was unusual at that time, you had
strong Catholic congregations, Jewish and Protestant, all
operating freely and as they chose.
It is still true today in the community that I represent,
Lancaster and York County, Pennsylvania where we have people of
all faiths practicing their religion in the way that they
choose, and doing good for the community. And so we have strong
Catholic presence with Catholic charities doing a lot of good,
every denomination doing good. We have a strong Muslim
community who have specific an organization that is dedicated
to building bridges between various religions and dispelling
some of the fallacies that folks hold about various religions.
I am very, very proud of that. And when my colleague
mentioned separation of church and State, it was never intended
that we would not be a religious society. It was intended to
ensure that government did not impede, did not restrict an
individual's ability to practice their faith in a way that they
chose.
Lancaster County, Pennsylvania is home to one of the
largest Amish populations in the United States. In fact my own
roots are Amish as well. And that particular community came
there because they were looking to escape persecution.
Protecting faith, protecting their faith as a fundamental
right, protecting the faith of other groups as a fundamental
right, is a value that our Nation has preserved for more than
400 years. And it is one that has allowed the Amish to live
independently and maintain their strong core values.
The Religious Freedom Restoration Act has provided more
protections for the Amish by ensuring that they don't have to
lobby for statutory exemptions to protect their religious
freedom with each new law that is passed. And of course, as I
mentioned, they are not the only religious community that have
woven threads in the district that I serve, there are many,
many diverse religions.
Despite the bipartisan historical support for RFRA, the
legislation we are speaking about today will continue down a
path that my colleagues on the other side of the aisle have
chartered to erode the rights that are protected by RFRA.
We have seen this in the form of Federal mandates that
would force individuals with strong religious convictions to
violate their moral beliefs, such as these coverage mandates
for abortion. Or restrictions on parochial schools, and we have
a strong community of parochial schools, where parents are
choosing to send their child to a school specifically because
they want to see them raised up in their particular religious
belief.
The Amish, for instance, has a lot of one-room schools. And
potentially under this proposed law, they would need to hire a
teacher who is not Amish, who may be of an entirely different
faith.
Time and time again, the Supreme Court has ruled that
attempts to limit religious expression are unconstitutional. In
fact I believe it was just 5 days ago the Supreme Court ruled
that the 100 year old Bladensburg's Memorial Cross is
Constitutionally protected.
So I do have a question, Mr. Sharp. I mentioned the Amish
community I represent and explained how important RFRA has been
for them. If the Do No Harm Act were to be passed into law,
would the Amish community and other faith-based groups that I
represent need to ask for more exemptions in every proposed
piece of legislation that would potentially limit their
religious rights?
Mr. SHARP. Very likely so. And being small groups like that
they may not have political power, they may not get them. And
that is why we need RFRA, to ensure those religious minorities
have the opportunity to get relief.
Mr. SMUCKER. Thank you.
Mr. SCOTT. The gentleman's time has expired. The gentlelady
from Washington, Dr. Schrier.
Dr. SCHRIER. Thank you, Mr. Chair. It has been really
interesting to listen to this conversation. Thank you,
witnesses, for your testimonies.
I thought I would speak up as the only woman doctor in
Congress, because a lot of this really is revolving around
women's health, and I would like to make a couple of points.
And I thought I would start, my colleague from Indiana
asked a question of all of you about whether a doctor or a
nurse should be forced to perform an abortion. And a few of you
said it depends and it is a complicated question. One of you
said absolutely not, should not be forced to.
And so I wanted to just delve into this a little bit
because it is complicated, and I think that my colleagues don't
really understand that. That in, let's see here, in 45
communities in our country, the only hospital available is a
Catholic hospital. The treatment for an ectopic pregnancy,
which is a pregnancy where the embryo implants in the fallopian
tubes, totally non-viable, threatens the life of the mother.
The standard treatment is a chemical abortion followed by
removal of the embryo or fetus, depending on what state it is
at, typically embryo.
And so when you ask that question about whether somebody
should be forced to, what you are really talking about is a
woman, maybe Catholic, maybe not, who goes to a Catholic
hospital where the policy of those who run the hospital is that
no abortions happen for any reason until the mother's life is
threatened. And despite all standard medical care, accepted and
taught in all medical schools throughout this country, and
residency programs, that women could get transported to a
hospital where they would not perform that, where instead they
would wait for her to bleed out, to risk her life, before they
would do what is a medically acceptable procedure, which is an
abortion.
So I want to be really clear that is not a chuckle worthy
question or answer. This is a very real question that threatens
women's lives. And I also just wanted to be really clear on
this, that there is a difference between a woman of any faith
who goes to a Catholic hospital seeking care, and that might be
the only hospital in her area, versus a Catholic woman who goes
to the hospital and chooses for her own care because of her own
religious preferences, to take that risk and to wait until she
might be at death's door.
So here are a couple questions. First, Ms. Laser, would you
like to comment about any of this, and your take about how this
relates to women's healthcare, and that this is not about a 20-
year-old seeking an elective abortion and having a doctor
forced to perform that. This is about a real medical procedure
that could be lifesaving. So I did not want to blur any lines
there.
Ms. LASER. I actually appreciate the opportunity to say
more than one word, even though I said a couple.
You know, I said it is complicated, and I don't think it is
complicated where a woman's life is in danger. You know, then I
think a doctor has a duty to do what needs to be done for the
sake of the woman's life. Period.
And I think that what we are witnessing today is an attack
on women's reproductive freedom really, in pursuit of what
feels like it is a political agenda. And there are gaping new
religious exemptions that are being created not just with
regard to abortion, but with regard even to contraception. Like
we talked about, with the final rules that would allow
individual employers and universities to deny huge numbers of
women access. So I think we are sort of living in an
unbelievable moment for 2019 when it comes to women's health,
regrettably.
Dr. SCHRIER. Thank you. And then, Mr. Sharp, are you in a
position where you might reconsider your answer about absolutes
in this case?
Mr. SHARP. Well thank you. And on one hand I think we can
all agree that the government has a very compelling interest in
protecting life. But I also, like my colleague, recognize that
these are complicated cases sometimes. And what RFRA does is
not pick the winners and losers. That is not what we are trying
to advocate for. But rather to provide a process so that
important interest in life can also be weighed against the
doctor's concerns about doing something that violates their
faith. Not picking winners or losers, but just the process for
that to be discussed and considered in these complicated
issues.
Dr. SCHRIER. I believe Ms. Laser has a comment.
Ms. LASER. I think what is really being left out though is
that the way the Trump Administration is issuing regulations,
they are putting their finger on the scale on one side. So RFRA
does have a balancing test, and frankly, I just want to
emphasize that the Do No Harm Act doesn't change that. RFRA
isn't going away. I just think it is very important that we
understand that, if you pass the Do No Harm Act. So I think
when the government issues regulations that says any healthcare
provider, anyone associated with the health system can refuse
care, and any boss can refuse birth control, that is deciding,
that is not balancing. Thank you.
Dr. SCHRIER. I would agree that is going back to the
handmaid's tale. I have run out of time. And I wanted to thank
you all for your help.
Mr. SCOTT. Thank you. Gentleman from Wisconsin, Mr.
Grothman.
Mr. GROTHMAN. Sure. I guess I will start with Mr. Sharp. We
are going to get a little bit beyond the statute we are
discussing today.
I think America was founded, or at least John Adams said it
was for moral and religious people. And I think the question is
whether the government in any cases is hostile to a moral and
religious people. Do you think America should always abide by
those standards?
Mr. SHARP. I agree that the government should not be
demonstrating hostility toward any person of faith, whatever
their beliefs may be. And that is why we have RFRA, First
Amendment, and so many other protections.
Mr. GROTHMAN. A wide variety of things. And I realize many
wonderful people have many different ideas on, you know, how to
handle things.
Right now in our country there are a variety of programs,
Medicaid, food stamps, low income housing, TANIF, Bell grants,
a variety of other things, in which you are eligible for these
programs if you do not get married, but you lose benefit of
these programs if you do get married. Is that accurate?
Mr. SHARP. I am not familiar on all the details, but I do
know there are conditions on a lot of Federal programs.
Mr. GROTHMAN. Quite right, given the definition of poverty.
Does that bother you, or does it bother anybody else up here
that in making a decision whether to get married or not, the
government weighs in substantially in favor of the decision not
to get married if you have children. Does that bother anyone of
the four of you? Doesn't bother you?
Ms. LASER. I don't agree with that characterization about
the government favoring single people. But I have absolutely no
problem with the government deciding to treat unmarried people
equally.
Mr. GROTHMAN. I mean the point is it is not equal. Does
that bother any of you? No? Okay. Doesn't bother you, Mr.
Sharp?
Mr. SHARP. No. I mean I apologize, I mean I may not have
fully understood this question, but I do think we can all agree
that the government ought to be treating people equally. And
that is why when a lot of these programs, especially when it
involves questions of religious faith, that religious are not
discriminated against.
Mr. GROTHMAN. I think probably the most important thing
most people do in their life is raise children. Right now the
Federal Government has a program providing free contraceptives
to people, I can't remember if it is 15 or 14 years old. I
think it is 14, might be 15. As I understand it, the way the
program works, the parents do not know if the government is
weighing in and providing contraception to people, I guess
usually girls, that young.
Does that bother you? Do you feel that is stepping on the
way maybe some parents, their values? Does that bother you?
Mr. SHARP. I am a strong advocate for parental rights and
for making sure that parents are part of that process of making
decisions for their child, with their child, discussing these
issues and coming to resolutions. So we want to ensure that
parents are always part of that process.
Mr. GROTHMAN. Okay. Others bothered by that? Not bothered,
don't care?
Ms. LASER. I am not bothered because most young people go
to their parents when they have contraceptive needs, and when
they don't it is sometimes because they are in cases of incest
or other dire situations where it is better that they be using
birth control than not.
Mr. GROTHMAN. A lot of times when a 15-year-old is engaged
in that behavior it is incest? I don't know, maybe it is true.
One other comment here. Before it was talked about, I guess
they are talking about Hobby Lobby as a for-profit corporation.
And the implication is that for-profit was kind of ugly or bad.
And I just will point out, in my personal experience us
Congressmen making $175,00 a year, I think we make more profit
than most people working in for-profit institutions. Just point
that out, it is not the end of the world, you know. A lot of
people found for-profit businesses and they don't make as much
money as we do, and it is not something to denigrate if people
decide to start their own business.
And I yield the remainder of my time back to the Ranking
Member.
Mrs. FOXX. Thank you, Mr. Grothman. I would like to point
out that on the Hobby Lobby website, on the page About Us, it
says ``We are committed to honoring the Lord in all we do by
operating the company in a manner consistent with biblical
principles.'' So my colleague must not have gone very far in
looking at the Hobby Lobby website.
And, Mr. Chairman, I would like to put the About Us page in
the record.
Mr. SCOTT. Without objection.
Mrs. FOXX. Thank you. I yield back to the gentleman from
Wisconsin.
Mr. GROTHMAN. Mr. Chairman, I think my time is up.
Mr. SCOTT. Thank you. The gentlelady from Connecticut, Ms.
Hayes.
Ms. HAYES. Thank you, Mr. Chair. I guess I will just start
with the Hobby Lobby question that we were just talking about
and correct the record for Mr. Sharp, that RFRA has been used.
In Bob Jones University v. United States, the University
sought to use religion to justify its racially discriminatory
admission policies. So it has been used before.
Thank you to all the witnesses for being here. The subject
of this hearing is extremely personal for me. I wear a cross
around my neck every day because my faith is what grounds me. I
am first a Christian and second a Congresswoman.
There have been times when advisors or consultants have
suggested that I remove my cross for fear that it would
communicate intolerance or bigotry as inherent to my Christian
values. I have refused. I continue to refuse. Because I know
the good that religion brings to me, to my community, through
spirit and service. I refuse because I know that my duties as a
Christian are not only to preserve and spread the gospel, but
to feed the hungry, clothe the naked, and be of a good steward
of my community.
Wearing this cross does not ever give me the right to
impose my beliefs upon others or to discriminate upon immutable
characteristics. While I want others to respect my right to
religious freedom, I hope that my cross shows them my
willingness, not my intolerance, to protect the right of
everyone to practice their religion or no religion at all. That
is what our Founding Fathers said, that is what this country
was founded upon. Let us not conflate the two.
We heard a lot about quotes from previous legislators, but
as we all know, democracy is meant to evolve. And many of the
things that those people voted for years ago never even made it
to the floor, which is why we have new members, new Congresses,
and we continue to evaluate our role in our communities. We
have passed legislation in this Congress that would have never
even been considered 20 years ago.
Today, so again, let us not conflate the two. Today we have
heard what happens when RFRA is abused. We see blatant
transphobia, discriminatory thinking, and polarizing
intolerance. This does not reflect the God I serve.
I am struck by Mr. Sharp's previous answers to my question
and his comments in support of Miracle Hill or New Hope Family
Services, facilities that maintain that children thrive best in
homes with married couples, with mothers and fathers. This is
an incredibly regressive and insulting comment. Especially
after having raised my own daughter as a single mom. She
thrived. And this was after I received counsel from Planned
Parenthood on my options and decided to keep her. She thrived,
she is a married professional educator with a graduate degree,
a homeowner, a conscientious and productive member of society.
She, too, has values, and I am so incredibly proud of her.
Miracle Hill openly discriminates against foster parents
based on their religion. In fact, they only place children in
born-again Christian homes, which agree with their statement in
support of their doctrine. I remind you this does not reflect
the God I serve.
Reverend Hawkins, as a faith leader, is it not a moral
issue to keep children that are eligible for adoption in the
system rather than in permanent loving homes? Should faith ever
come before a child's welfare?
Mr. HAWKINS. No, faith should never come before a child's
welfare. And I have really got to add that I think there is
some misunderstanding about what faith is all about.
Faith is not something you arrive and you have all of the
answers. Faith evolves, the word that you used. Faith continues
to allow itself to be challenged. Faith, and especially
following the teachings of Jesus Christ as found in the
gospels. We are called to love the Lord our God, to love our
neighbor as we love ourselves.
So, no, faith should never prevent a child from being
adopted in a loving home.
Ms. HAYES. Thank you. In Connecticut, 5 percent of children
in the child welfare system aged out without ever finding a
forever home. We know that same-sex couples are significantly
more likely than different sex couples to be raising adopted or
foster children. One in five same-sex couples are raising
adopted children, compared to just 3 percent of different sex
couples. And 2.9 percent of same-sex couples have foster
children, compared to .4 percent of different sex couples.
Additionally, we know that LGBTQ plus youth are over
represented in the foster care system. Many enter into child
welfare system after experiencing familial rejection of their
gender identity.
So this is not a question, but I will just leave it to you
for consideration, Mr. Sharp. What would you tell a child who
could be heading into a loving home, but is being denied that
chance because the home has two moms, a single dad, or that
they practice Judaism or Christianity? I just want you to think
about that.
And one other thing to think about when we talk about
people being forced to do something. If a group of firefighters
show up at the Stonewall Inn and it is burning down, they can't
choose not to put that fire out.
Thank you, Mr. Chair, I yield back.
Mr. SCOTT. Thank you. The gentleman from Idaho, Mr.
Fulcher.
Mr. FULCHER. Thank you, Mr. Chairman. At least a couple of
my colleagues from Tennessee and Indiana brought up the
difficult question about whether or not it could be possible
that a physician would be mandated to perform an abortion if
that was against their belief system.
And most of the panel struggled with that. And it appears
clear to me that indeed would be a possibility if the Do No
Harm Act were passed.
Mr. Sharp, are you aware of any case or cases where the
application or enforcement of the law under the Religious
Freedom Act, where there's been the result of the taking of a
human life?
Mr. SHARP. Not that I am aware of.
Mr. FULCHER. So it has also been said that the application
of the Religious Freedom Act is just simply not tolerant
enough. As I consider the cases that have been rendered under
the Religious Freedom Act, the situation with the baker out of
Colorado, didn't provide a cake under circumstances that
violated his beliefs. The other one that has been talked about
a lot here today, Hobby Lobby being able to decide what
employee healthcare they are to pay for and what those services
might look like.
It strikes me that in those cases the relationships
involved were voluntary, the baker and those who approached
that individual had options. The employees that work with Hobby
Lobby have options. There's more than one employer out there.
And I will go back to you, Mr. Sharp. Doesn't that at least
provide an example that the law and the application of that law
under the current Religious Freedom Act is indeed tolerant, and
that the law under RFRA is respectful of the First Amendment
and of people of all or no beliefs.
Mr. SHARP. That's exactly right. I go back to a point I
said earlier. Disagreement is not discrimination. And a
pluralistic society means that a Colorado baker has the freedom
to do, along with the countless other bakers that were more
than happy to design a cake for a same-sex wedding. We can
protect both, and that is part of what RFRA does, is regardless
of a person's beliefs, they have that process where they can go
and have their beliefs protected against government intrusion.
Mr. FULCHER. Thank you, Mr. Sharp. And certainly in my
opinion the existing law under the Religious Freedom Act needs
to stand just as it is.
I yield my remaining time to the Republican leader.
Mrs. FOXX. I thank the gentleman from Idaho for yielding,
and I want to agree with him very, very strongly that RFRA
protects peoples' religious freedom.
But it is really clear to me today in this hearing, and I
think it is the very reason why we must make sure that this
bill never passes, is that many of our colleagues would impose
their beliefs on others if RFRA were changed. And that is
really troubling to me. Again I want to say what Mr. Sharp has
said, disagreement is not discrimination.
Mr. Sharp, the absence of RFRA, the Free Exercise Clause of
the First Amendment would remain in effect, thankfully. Why is
it important nonetheless to keep RFRA on the books in its
current form?
Mr. SHARP. Thank you. And I think we need to remember what
RFRA does specifically relates to that Free Exercise Clause. It
is the court's decision in Employment Division v. Smith rolled
back that strong protection for religious liberty and it left
this gap of protection. And so Congress unanimously,
bipartisanly came together and said we want to restore that
proper understanding and respect for religion, insert that
balancing test and that compelling interest test once again.
Mrs. FOXX. Thank you, Mr. Chairman. I say again also, RFRA
is not about denying healthcare to women. RFRA is about
protecting the First Amendment and our right to the free
exercise of religion.
I yield back.
Mr. SCOTT. Thank you.
Mr. FULCHER. I yield back.
Mr. SCOTT. Thank you. The gentleman from Michigan, Mr.
Levin.
Mr. LEVIN. Thank you so much, Mr. Chairman. And thank you
for holding a hearing on such a critical issue that impacts so
many Americans' work lives and home lives.
Mr. Sharp, in your written testimony you claim that RFRA is
hardly ever asserted by a for-profit business, only three
Federal cases were brought by for-profit businesses. If I have
that right.
This seems like an effort to downplay the impact of
discrimination by for-profit corporations. And I would like to
take a minute to set the record straight about this issue.
Is one of those three cases you are referring to in your
testimony the Hobby Lobby case?
Mr. SHARP. Thank you for that question.
Mr. LEVIN. Is it, yes or no, I don't have a lot of time.
Mr. SHARP. Yes, based on what I already discussed.
Mr. LEVIN. Right. So in that case the Supreme Court held
that closely held for-profit employers could use religion as a
justification for excluding certain forms of birth control from
their employees' health insurance.
Now it may be true that this was just one case, but it is
the Supreme Court after all. And I think it is important to dig
a little deeper to fully understand its impact.
Mr. Sharp, are you aware of how many corporations are
closely held in this country?
Mr. SHARP. I don't know the exact number but I know there
is quite a few of them.
Mr. LEVIN. Yes. So according to the IRS, as many as 90
percent of businesses in this country are closely held. And
these are not just small businesses. They include organizations
like Hobby Lobby itself, which has 32,000 employees, Coke
Industries, which has 120,000 employees.
Mr. Sharp, are you aware of what percentage of Americans
work for closely held corporations?
Mr. SHARP. Again, I don't know the exact number, but I
imagine it is a high number.
Mr. LEVIN. Yes. According to the U.S. Chamber of Commerce,
more than half of private sector workers are employed by a
closely held corporation. So I think it is deeply misleading to
downplay the impact of these cases because, as we saw with
Hobby Lobby, one case can impact the lives of tens of millions
of people.
I want to turn to you, Ms. Wilcher, and ask you a different
kind of a question. Directive 2018-03 supersedes current
guidance and protocols of OFCCP, particularly regarding sexual
orientation and gender identity. Based on your nearly 7 years
at OFCCP, can you comment on the impact of Directive 2018-03,
in particular what impact it will have on civil rights
enforcement in general?
Ms. WILCHER. Well first of all, thank you for the question.
It will have substantial impact depending on how, again, it is
interpreted and enforced by the solicitor of labor, as well as
the director. It has potential for having a lot of impact.
Particularly with the amendment that added gender identity
and sexual orientation, which was to protect that LGBT
community. This sort of sets back the clock, or it sets it
back. And so it undermines the attempt to change 11246 to
protect that community.
Mr. LEVIN. And are these recent actions of this
Administration regarding enforcement of religious freedom and
other civil rights in line with previous administrations? You
have a lot of experience on this.
Ms. WILCHER. Not to my recollection, no. I mean I think I
would have to do more study, but frankly, in my experience the
answer is no.
Mr. LEVIN. And are we going in the direction of expanding
the civil rights of LGBTQ Americans and others with the Trump
Administration's directives at work and, you know, in all these
different areas of life, adoption, and so on and so forth?
Ms. WILCHER. I try not to answer a question with no because
it is complicated. The answer is without a doubt, no. I mean we
are not going in the right direction, and we should.
Mr. LEVIN. Mr. Chairman, you know I am both a union
organizer and a faith leader. Until my sister from Connecticut
talked about her personal experience I didn't at all think of
talking about mine. But I was the president of my Synagogue
until I ran for Congress, and I have been deeply engaged in my
own faith community and in interfaith work for years.
And it is just so deeply, deeply troubling when for-profit
corporations and others try to use the guise of religion to
violate the basic human rights of women over their own bodies,
of people to employment. It is a shame, and I am very
appreciative of your leadership so we can pass this bill and
correct the situation.
Thank you so much, and I yield back.
Mr. SCOTT. Thank you. The gentleman from Texas, Mr. Wright.
Mr. WRIGHT. Thank you, Mr. Chairman. Thank all of you for
being here on the panel today.
We have already discussed to some extent the First
Amendment. There is a reason that the very first part of the
First Amendment and the Bill of Rights dealt with religious
liberty. And as the Republican leader on the committee
mentioned earlier, it starts with Congress shall make no law
establishing religion or prohibiting free exercise thereof.
Reverend Hawkins, would you agree that free exercise of
religion means more than the act of worship, it means that we
life the faith, or try to, that we carry the faith into the
public square, we don't hide it under a basket, and that we use
our religious faith as a foundation for decisionmaking for the
choices we make in life. Would you agree with that?
Mr. HAWKINS. Are you Presbyterian?
Mr. WRIGHT. No, sir.
Mr. HAWKINS. You sound very Presbyterian. Yes, exactly, it
is faith in action that makes a difference. Again, for the
betterment of others.
Mr. WRIGHT. Okay. Thank you. And, Mr. Sharp, the
Constitution guarantees, again, free exercise of religion. If
the Federal Government is restricting it, how can it be the
free exercise? Can it be?
Mr. SHARP. Not at all. And that is why we have the First
Amendment and RFRA to provide that check against government
authority.
Mr. WRIGHT. Exactly. You mentioned earlier about
disagreement is not discrimination. When you have a number of
organizations, and particularly charities, that offer services,
or businesses that offer services, based on their religious
faith, and realizing that there are so many different religions
in the United States that exercise freely, they are going to do
things differently from one another.
It doesn't bother me that evangelicals would so something
different than I would like because I don't want evangelicals
telling Catholic charities what to do, just as an example.
When there are options available, let's say someone, a
bakery refuses to do what a customer might want, that is not
the only bakery. There are other options, so how can they claim
discrimination when there are other options available?
Mr. SHARP. I think that is part of the beauty of what laws
like RFRA did, is they promote diversity so that you are going
to have a variety of organizations and charities all coming
together for the same goal but doing so consistent with their
religious convictions.
Mr. WRIGHT. Thank you. I would agree with that, and I would
say that the title Do No Harm is a misnomer in this case
because to gut RFRA does great harm to this country.
And I am going to yield back to the Ranking Member.
Mrs. FOXX. Thank the gentleman from Texas.
Mr. Sharp, RFRA is a rather simple statute that merely
codifies a compelling interest test for the government to
burden a person's religious beliefs substantially. It is very
conformative with the First Amendment. What would happen to the
effectiveness of the statute if Congress begins specifying
areas of the law that will be exempt from RFRA, as Congressman
Kennedy's bill, the Do No Harm Act, does?
Mr. SHARP. Thank you for that question. It would have a
very detrimental impact on religious liberty. Because a lot of
the individuals and organizations that right now are facing a
lot of attack over their beliefs would find themselves deprived
of the opportunity not to win, not to lose, but just to go to
court and make their case, to have that fair process to explain
why a law burdens their religion. And on the other side, let
the government make its case as well.
We want every single American of every belief, every
religion, every faith, every background, to have that access to
that process afforded by RFRA.
Mrs. FOXX. And again, in order to violate the First
Amendment, because of RFRA the government has to prove its
case. And that I think is something that perhaps has not been
accentuated enough in today's hearing as we have gone off on
tangents, in my belief, and made this as though we are denying
healthcare to women.
That is not what RFRA is about. RFRA is not about denying
anything to anybody except the freedom of religion. The Do No
Harm bill will deny that.
Thank you, Mr. Sharp, I yield back.
Mr. SCOTT. Thank you. The gentleman from Maryland, Mr.
Trone.
Mr. TRONE. Thank you, Mr. Chairman. Ms. Wilcher, OFCCP has
a long history of enforcing civil rights provisions that
protect the employees of Federal contractors, including
Executive Order 11246 which prohibits discrimination based on
race, color, religion, sex, or national origin.
President Bush's 2002 religious exemption currently allows
religiously affiliated entities to discriminate on the basis of
religion in hiring. But specifically provides those entities
are required to abide by all other provisions. For example
protections on the basis of race or sex.
The Trump Administration proposed expanding this exemption
but fails to reference the current exemptions' limitations
regarding enforcement of other protections.
So based upon the data, the evidence, is there any
indication that religious organizations are actually seeking
such exemptions?
Ms. WILCHER. We looked at the compliance activity and we
haven't seen any indication of that. You will have to talk to
Ms. Laster, but we haven't seen it.
Mr. TRONE. Exactly. During your time at OFCCP did you
receive reports or complaints from religiously affiliated
organizations regarding their ability to comply with the
specific provisions because of their faith? In other words, is
this directive a solution or a problem, or a solution in search
of a problem?
Ms. WILCHER. Well in my experience it is probably a
solution in search of a problem. I didn't go through any of
that. The executive order itself already has exemptions for
religious organizations. I mean and it has worked fine. So, no,
to me this is a solution in search of a problem.
Mr. TRONE. Thank you. As someone deeply familiar with
OFCCP's day to day operations, can you describe what impact
this broad and vague proposal could have?
Ms. WILCHER. It could have quite a bit of an impact. First
of all it is one thing to have a policy in writing, it is
another to apply it and to interpret it. And unfortunately,
what I saw in the South Carolina case is that this
Administration looks to be really looking at it very liberally
and broadly, which has the impact of limiting civil rights
enforcement and anti-discrimination laws.
So us, the staff, as though I still work there. You know,
the staff really gets conflicted. And if they feel as though
there is pressure from justice or from any other entity to read
very liberally in terms of RFRA and the issue of religious
freedom, they are going to do it and they are going to look the
other way. Knowing full well they were there to enforce the
anti-discrimination laws.
And there is a difference between disagreement and
discrimination. And that is what these laws are intended to
protect.
Mr. TRONE. Absolutely. So even prior to RFRA, institutions
whose purpose and character were primarily religious, they were
able to hire based on religious beliefs, but does the Do No
Harm Act do anything to change this ability to hire on
religious beliefs?
Ms. WILCHER. No, not to my view.
Mr. TRONE. Has the Trump Administration gone too far and
corrupted the intent of RFRA by allowing more and more
exceptions and special rules leading this law to be used as a
weapon of discrimination?
Ms. WILCHER. My view is, from what I have seen, the answer
is yes, which is why I am here and this is why we are really
concerned about what is happening. There is a First Amendment,
there is also a Thirteenth, Fourteenth, and Fifteenth
Amendment, and the civil rights laws that were there because of
slavery and Jim Crow and segregation, because in the name of
religion those acts were justified. So, yes, I suspect this
Administration has gone a bit too far.
Mr. TRONE. And we have also heard some concerns today the
Do No Harm Act would prevent religious organizations receiving
Federal funding. Is that an accurate criticism?
Ms. WILCHER. Can you repeat that, I didn't hear?
Mr. TRONE. We heard today some concerns the Do No Harm Act
would prevent some religious organizations from receiving
Federal funding.
Ms. WILCHER. No. There is no indication of that at all.
Mr. TRONE. Exactly. Thank you. I yield back my time.
Mr. SCOTT. Thank you. The gentleman from Virginia, Mr.
Cline.
Mr. CLINE. Thank you, Mr. Chairman. Thank our witnesses for
being here.
As everyone has been discussing, the First Amendment
guarantees Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof. RFRA upholds this right on which our great country was
founded. The Federal Government has a duty to ensure that this
right is not violated and that Federal overreach does not
infringe on the State's ability to uphold this.
During my time in the Virginia General Assembly we worked
to bolster these protections for all Virginians and I look
forward to continuing that effort here in Congress.
And I think one of the things that was being discussed, an
important point was made, and Mr. Sharp I will ask you. When
these individuals are being required by the Federal bureaucracy
to come to the Federal bureaucracy and ask for some type of
exemption, there is an imbalance.
A notable feature of RFRA is that it requires the
government to explain and justify a restriction on religious
liberty. The government must show there is a compelling
interest and the restriction is the least restrictive means of
achieving the interest.
So is it your view that RFRA gives individuals some much
needed leverage when dealing with the bureaucracy, and does it
increase government transparency and accountability in the
process?
Mr. SHARP. Thank you for that question. What it does is it
is exactly you described. There are religious minorities,
individuals, organizations, that find themselves having their
religious freedom violated by the heavy hand of government.
They may not have the political power to go and seek out an
exemption.
So what RFRA does is provide them a process, a way to check
that government authority, go to court and make their case. To
explain why this burden on their religious exercise is
unconstitutional and likewise allows the government to make its
case as well. Not to pick winners and losers, but to provide
that check, that accountability you referenced against
government restrictions on the ability of people of faith to
live and work consistent with those beliefs.
Mr. CLINE. Taking that one step further, how does it
provide protections against rulemaking by these same
bureaucracies that may intentionally or unintentionally damage
the free exercise of religion?
Mr. SHARP. Thank you. And a lot of times we focus on RFRA
and laws, but it also extends to agency actions and things like
that. Indeed we talked about the contraceptive mandate, which
as we discussed, was the process of one of those agency
actions. So RFRA simply ensures that whether it is coming from
a law passed by Congress, an action by the agency, whatever the
source, if the Federal Government is taking an action that
restricts an individual or organization's free exercise of
their faith, RFRA provides a check, a process, for them to get
relief.
Mr. TRONE. Thank you. With that, Mr. Chairman, I will yield
my time to the Ranking Member.
Mrs. FOXX. I thank the gentleman from Virginia for
yielding.
Mr. Sharp, in most RFRA cases involving preventive services
are organizations seeking to exclude a wide range of women's
health services, or are they targeting specific procedures or
prescriptions that violate their beliefs?
Mr. SHARP. It is the latter. We have obviously talked about
that issue a lot, and I think what gets lost in the Hobby Lobby
and Conestoga Wood Specialty, who ADF had the pleasure to
represent, was that they were not seeking an exemption from all
services, seeking to not cover healthcare, but specifically
four items that they believed could result in the termination
of a pregnancy, the loss of an innocent life, consistent with
their beliefs. So what they sought was that very targeted, give
us breathing room so that we do not have to pay for or provide
those four items. Not a broad array of services, but four
things.
That is what RFRA helps to do is to provide those narrow,
targeted solutions.
Mrs. FOXX. Thank you. Mr. Sharp, RFRA sets up a balance
between the free exercise of religion and potentially counter
veiling governmental interests. Obviously we have heard a lot
about what our colleagues think are counter veiling
governmental interest. We might have a disagreement on that.
How would the bill introduced by Congressman Kennedy, the
Do No Harm Act, affect this balance?
Mr. SHARP. The important aspect of RFRA, one of its many
important aspects, is that it applies to any government action
across the board. What the Do No Harm Act is going to narrow
that, and we are going to say there is now going to be a lot of
government actions that you don't have the opportunity to go to
court and seek relief. Vast opportunities for people of faith
are now going to be snuffed out because rather than being able
to go to court and seek relief, those doors are going to be
shut to them under the Do No Harm Act.
Mrs. FOXX. Thank you, Mr. Chairman, I yield back.
Mr. SCOTT. Thank you. Gentlelady from Minnesota, Ms. Omar.
Ms. OMAR. Thank you, Chairman. Ms. Laser, can you tell me
the delicate balance between religious liberty and civil
rights?
Ms. LASER. You know, religious liberty is about the freedom
to believe what you want, or not believe, and to be able to
practice those beliefs without causing harm. When someone
violates someone else's civil rights, they are often putting
their own religious beliefs above the religious beliefs of that
other person.
What the First Amendment has when it comes to religion are
two clauses, the Free Exercise Clause and the Establishment
Clause. And it is important that both exist because there have
to be limits on free exercise in order ultimately to protect
religious freedom for everybody. And I don't feel like we have
emphasized that plain enough.
So RFRA is about religious freedom, but the Do No Harm Act
is what is ensuring that RFRA isn't being misused to take away
the religious freedom of some, like Aimee Maddona, who is being
refused government-funded services because she's Catholic.
Ms. OMAR. So let's see, religious liberty would be like,
almost then a person like myself having the ability to wear my
head scarf in order to serve my constituents in Congress?
Ms. LASER. Yes.
Ms. OMAR. Yes. Religious liberty would be almost then a
person being allowed to grow their beard because that is
consistent with their faith?
Ms. LASER. Yes.
Ms. OMAR. Would religious liberty be in allowing certain
people to access service, like buying a cake from a cake shop?
Ms. LASER. Is that an example of religious freedom?
Ms. OMAR. Would that be an example of religious liberty?
Ms. LASER. Well, I mean if you are buying a cake for your
religious wedding I suppose you could say it is connected to
your exercise of your religion for some people, sure.
Ms. OMAR. The person denies you--
Ms. LASER. If the person is denying you that right, then
what the government is doing, if the government is sanctioning
that, right, because that is what is important when it comes to
RFRA and the Do No Harm Act. We are talking about when the
government is sanctioning one person being able to impose their
religion on others.
In the case of Jack Phillips in Masterpiece Cake Shop,
there was an anti-discrimination public accommodations law that
the State had passed. All the people had come together, it was
a secular shared law. And what Jack Phillips was saying is I
want special treatment, I want a special exemption from this
law.
If the government had given that to him, they are allowing
him to impose his religious beliefs on others in a way that
causes harm. And religious freedom is not about causing harm to
other people.
Ms. OMAR. Because me exercising my religious freedom that
is protected under religious liberty in our First Amendment,
but imposing my faith on to you is not?
Ms. LASER. That is the point. The two clauses work together
so the Establishment Clause puts a limit on your free exercise
of religion because there are a lot of freedoms. You can swing
your fists everywhere, but you can only swing your fist in our
society up until the tip of my nose. And then that freedom is
curtailed.
Ms. OMAR. So a police officer, a doctor, Members of
Congress, we all take an oath to do no harm, yes? So if I am a
police officer and there is a shooting at a gay bar and I say I
am not entering this place because I have strong religious
conviction that, you know, I don't believe in saving gay
people. Like there was a police officer recently on a tape
talking about how we should harm gay people. Would that be
covered under his religious liberty, can he do that?
Ms. LASER. No, he cannot. Because it is very clear from not
just the framers of the Constitution, but a line of Supreme
Court cases that religious freedom is not the right to use your
religion to hurt third parties or to cause harm. That is not
what we mean by religious freedom.
Frankly, I had a group of Stanford students who visited me
and I said what is the first thing that comes to mind when you
think of religious freedom today? And they all agreed that what
came to mind was anti-gay.
Ms. OMAR. And under our Constitution we are prohibited from
establishing religion, yes?
Ms. LASER. Absolutely.
Ms. OMAR. So if you have Members of Congress that are
legislating laws in accordance with their faith in regards to
abortion or LGBTQ or women or any of those things, that should
be prohibited within our Constitution?
Ms. LASER. You are not allowed to impose, through the
government, your religious beliefs on others. That is not what
religious freedom is about, that is not what our country rests
on.
Ms. OMAR. For many of us religious freedom is extremely
important. It is life and death in this country. Many of us
fled our countries to come to the United States because that is
the one thing that distinguishes us from many countries.
But it is also important that we have a secular government
and protect peoples' civil rights and access to those civil
rights.
So I appreciate your testimony, and I yield back.
Mr. SCOTT. Thank you. The gentleman from Georgia, Mr.
Allen.
Mr. ALLEN. Thank you, Mr. Chairman, and thank you for
holding this hearing.
This is a debate that frankly has been going on for 4,000
years. It is all played out in God's word, and it continues
here today. Religious freedom is the cornerstone of the great
American experiment. Our Founding Fathers protected religious
liberty as no government has in history. The Religious Freedom
Restoration Act protects the unalienable rights of religious
liberty for all Americans, is a God given right.
RFRA, not the First Amendment, is the primary Federal
safeguard of Americans' religious liberty.
In 1990 the Supreme Court greatly weakened the First
Amendment's protection of religious liberty. Congress worked
together to enact RFRA. Again, and I must disclose that while
everything in my life, and I have been by some standards,
successful, was great 20 years ago, that I found that what was
next was, you know, I am just another broken, flawed man who
cannot live without the saving grace of Jesus Christ. And that
has offended some people in this room.
Now I made that choice and I found out very quickly that
when I make that statement it is offensive, and that I cannot
impose that on anyone here or in listening to my voice today.
In fact, you know, when I first made that decision, you know,
some folks called me the most dangerous person in the world.
Because I wanted to shout it to the world. Because I knew the
truth.
So why is it that, you know, that we are talking today
about this subject? Well, you know what I found out in my walk
is that, you know, I couldn't change anybody else, much less
myself. And meaning that, you know, again, I can't impose my
values on anyone here or within who is listening today, and all
I can tell you is what I believe in.
Now that is why I think our founders created the First
Amendment, and I think that is why we are here debating today,
and we will be debating this for, you know, until eternity. So
I do know that Christ said there would be many false prophets.
This battle has been laid out for us in the scriptures. There
are over 55 versus in the scriptures that reference government.
You can Google what the Bible says about government and it will
give you those scriptures.
I learned that in my study of the scriptures, which has
been intense in the last 20 years, that, you know, one of the
reasons that I am so passionate about this is it hasn't worked
out too well for those folks who haven't followed God's laws
and have been disobedient to his word.
So where are we headed in all of this? You know, the
question asked by Pilate, what is the truth? Pilate was in
charge of Israel at that time. What is the truth here? And we
will be debating this from now on.
You know I have been heavily criticized in this body for
telling people what I believe. Which I think is in direct
conflict with the First Amendment. And I have been criticized
in my district. So why do I do it? Because I do it because I
believe the church has been silenced by this government and
people overall in this country have been silenced by this
government and those in this government because we are in a
battle of good versus evil. And we have been for 4,000 years.
Mr. Sharp, can you give me any examples of where the
government has run roughshod over the church in this country,
which is now unable, in fact the church doesn't even know the
truth and is afraid to tell the truth in the pulpits of America
today. Can you give me some examples of that?
Mr. SHARP. There are numerous ones. In fact, one I would
like to bring up what was discussed earlier, Jack Phillips, our
Colorado baker.
The church goes far beyond the four walls, including into
his business and how he operates it. What he sought was not a
special exemption, what he sought was equal treatment, the same
freedom that every other creative professional, every other
baker in the State of Colorado had, to decline to create
expression that violates his religious conviction.
And so there are many other examples that ADF has
represented of individuals, organizations, and churches. And we
fully support the freedom of all of them to live out their
faith.
Mr. ALLEN. Mr. Chairman, I am out of time, and I yield
back.
Mr. SCOTT. The gentlelady from Georgia, Mrs. McBath.
Mrs. MCBATH. Thank you, Mr. Chairman. And thank you for all
of you that are here today. We really appreciate your testimony
and your time.
I am a devoted Christian and I live very hard to walk out
my faith every single day. Not that I do it perfectly, but I
really try to abide by the precepts of my faith. My faith
teaches me to love all people and to treat everyone equally.
Never have I interpreted my religion as something used to
discriminate against those who differ from me or my opinions.
As my colleagues before me have pointed out, the Religious
Freedom Restoration Act was not intended to be used as a means
for discrimination to keep people from living the lives that
they want, that they choose, as we have been witnessing
recently.
Whether that means having access to contraceptives,
practicing their respective religion while at work, or taking
in a child in need of a loving home. We should not be imparting
our own life choices on everyone else.
Ms. Laser, my question is for you, I would like to review
the history of RFRA. Can you please explain for the committee
why RFRA was passed and signed into law in 1993?
Ms. LASER. Sure. So RFRA was passed and signed into law in
large part in reaction to the Employment Division v. Smith
case. And in that case the court changed the standard, the free
exercise standard around whether a generally applicable and
neutral law could have a religious exemption if it burdened
someone's religious practices. In that case it was Native
Americans in a peyote smoking ceremony and being denied
unemployment benefits because of that.
And a lot of folks were concerned on all sides of, you
know, the aisle. And came together, legal experts, civil
liberties groups, religious groups, all sat at one big table
and decided that we better make sure that we have religious
freedom protections, in particular for religious minorities.
So the kind of things that came up during the debate were
what about a Jewish school boy who wants to wear his yarmulke
to school. Or what about a Muslim firefighter who wants to grow
a beard. And so those were the types of things that folks
worried about.
What folks weren't talking about and weren't worrying about
was people being able to use religion to cause harm to other
people and to discriminate against other people. People being
able to impose their religion on other people. You can see
those examples are very different from the types of examples
that they were talking about.
And that is why RFRA was able to pass with such a broad
consensus. Unfortunately though, that is not how it has played
out, and that is not what we are seeing coming in spades from
this Administration. And so the Do No Harm Act would restore
RFRA to that original intent, leave the balancing test in
place, but make sure that it couldn't be misused for something
that it wasn't originally intended to do and that doesn't
violate the Establishment Clause of our First Amendment. So it
lays out some specific areas of the law where religious freedom
doesn't get to trump protections that the society has given to
different groups of vulnerable people. And child labor laws,
workplace protection laws, civil rights protections,
healthcare, government services, and government employees like
Kim Davis, you know, being able to discriminate in the doling
out of government services.
That is why it is such an important and critical fix.
Mrs. MCBATH. Thank you. Sir, if I may, one more question.
Was there any indication at the time of RFRA's passage that
RFRA would allow religion to undermine the rights of others?
Ms. LASER. No. And in fact, the coalition would have
disintegrated if that would have been the case. It wouldn't
have passed.
Mrs. MCBATH. Thank you very much.
Ms. LASER. Thanks.
Mr. SCOTT. Thank you. The gentleman from South Carolina,
Mr. Timmons.
Mr. TIMMONS. Thank you, Mr. Chairman. And I would like to
thank all the witnesses for taking the time to come before the
committee to testify.
We keep talking a lot about discrimination. But I want to
switch gears to talk about children. Children that for whatever
reason are in need of foster care. Over the past few decades
Miracle Hill has provided foster care for thousands of
children. And while there are hundreds of other similar
organizations all over the country, Miracle Hill is
particularly important to me because they serve people in my
congressional district.
The legal issue being discussed here is that Miracle Hill
requires couples seeking to foster children through Miracle
Hill, they have to share the theological convictions of Miracle
Hill. Miracle Hill's reasoning is that if a couple wants to be
in a position of spiritual leadership to the children they care
for, those positions are reserved for people that can affirm
Miracle Hill's statement of Faith.
I want to be clear. Miracle Hill will serve any child, no
matter the child's race, faith, sexual orientation, gender
identity, nationality, or any other differentiating factor. And
this is important. I also want to be clear, Miracle Hill has
never prevented, I will say it again, has never prevented any
individual from becoming a foster parent. That is because there
are other private providers less than two miles away from their
location that would happily process any foster care
application.
Alternatively, someone seeking to foster children can go
the Department of Social Services which is another mile or two
down the road. So I say again, no one has ever been denied the
right to be a foster parent by Miracle Hill.
As circumstances may have it, Ms. Laser referenced a close
friend of mine, Beth Lesser, who happens to be Jewish. And
while Miracle Hill would not facilitate her fostering a child,
she was able to foster a child with another nearby provider. So
again, as I say, no one is being denied the right to foster a
child.
Furthermore, Miracle Hill has never denied any individual,
no matter their faith, gender identity, or sexual orientation,
the right to volunteer at Miracle Hill. Anyone is welcome to
volunteer in the soup kitchen, they can hand out coats and
blankets in one of the many homeless shelters they operate,
they can teach adults how to read, they can help with any of
another variety of the important ministries that they have.
But again, longstanding policy, the policy since they were
founded decades ago, if a parent seeking to foster a child
wants to be in a position of spiritual leadership and
influence, those positions are reserved for people that can
affirm Miracle Hill's Statement of Faith.
I am going to speak really quickly. So we have the Catholic
Dioses of Charleston, I am going to paraphrase. They fully
support Miracle Hill's ability to continue operating. The
President of the Coalition of Jewish Values, Rabbi Lerner, also
in South Carolina, went even a step further, and I am going to
read his because it is important.
``Contrary to what has been said, no one is denied the
ability to provide foster services because Miracle Hill
Ministries is among the agencies licensed to operate.'' Again,
this is the President of the Coalition of Jewish Values, Rabbi
Lerner. He said any individual or family can turn to numerous
other providers, including the State itself, so the loss of
Miracle Hill's license would only result in fewer children
served and a lack of religious support for families who share
Miracle Hill's beliefs. No one would gain, and many would lose,
most of all the hundreds of children currently served through
Miracle Hill. That is Rabbi Lerner, the President of the
Coalition of Jewish Values in South Carolina.
So the Jewish community and the Catholic community of South
Carolina fully support Miracle Hill.
My question is for Ms. Laser. In your opinion is there any
space for religious organizations that adhere to traditional
religious beliefs, to play a role in providing foster care
services to vulnerable children, or even in the public square
at all, or should they just go to church, ignore the problems
in their communities, and let the government handle it?
Ms. LASER. Thanks for that question. They can absolutely
play a role and they shouldn't be excluded from being able to
provide government services and act as the ward of the State as
foster care homes do for children. But when they take that on
they have to have the best interest of the child as first and
foremost. That is a duty and an obligation. And that is not
what is happening because with most foster care situations it
is not a lack of foster care agencies that is the problem, it
is a lack of foster parents. And there is stories from all over
the country where foster kids are even sleeping on the floors
of offices because they can't find foster homes, which is a
very serious problem.
They can be eligible to receive government money, but when
they receive that money they have to play by the same rules as
everybody else, which means they can't discriminate, because
there are provisions in place that prevent that.
Mr. TIMMONS. Those provisions were added by the previous
Administration 9 days before he left office, so I think maybe
that is where we should be looking as far as the legal
justification of it.
I think it is safe to say that if Miracle Hill was no
longer licensed there would be less children placed in foster
homes. So with that I will yield back the remainder of my time.
And Thank you.
Mr. SCOTT. Gentlelady from North Carolina.
Mrs. FOXX. Thank you, Mr. Chairman. Mr. Sharp, in the Hobby
Lobby decision the Supreme Court found RFRA applied to closely
held for-profit corporations. Finding that both non-profit and
for-profit corporations can advance religious freedom. Which
also furthers individual religious freedom.
Do you agree it is appropriate for RFRA to apply to non-
profit and closely held for-profit corporations?
Mr. SHARP. Yes, I do. And thank you for that question and
that reminder that as Justice Alito said in the Hobby Lobby
decision, businesses are not run in a vacuum, they are run by
people, people of faith, people with deep religious
convictions. In the case of Hobby Lobby, as they put on their
website, it is people that their business is not about profit,
it is about honoring God, honoring that commitment to God
through the work that they do.
And so when these closely held businesses and organizations
are involved what RFRA does is ensures that the beliefs of
those owners that are reflected in how they operate their
business and how they live their lives and interact with their
community, that the those beliefs are given a fair hearing in
court and an opportunity to seek relief from things like the
contraceptive mandate, and other restrictions on their
religious practice.
Mrs. FOXX. Thank you. Mr. Chairman, in the interest of time
I will yield back and save my final comments for that time.
Thank you, Mr. Chairman.
Mr. SCOTT. Thank you. One of the problems we have now is
that the definition of victim has been changed around. We are
primarily focused on generally applicable anti-discrimination
laws and executive orders that directed there should be no
discrimination with Federal money. Traditionally the victims
have been defined as those who are trying to get services or
trying to get a job without facing discrimination. And now we
are apparently trying to protect those who may be prevented
from discriminating or imposing their belief on others. We have
even heard a suggestion that discrimination would be okay so
long as the victim has some other alternative, they can do to
another family placement. If you are denied in one restaurant,
well you just go across the street and eat somewhere else. That
is not the tradition of victim in these cases.
In healthcare we have talked about forcing a doctor against
his will to provide certain services. What we didn't talk about
is a child's right to a vaccination, that the doctor didn't
believe in vaccinations or other medical decisions. Those
really ought to be up to the medical board, not to a bunch of
politicians.
But the case in South Carolina gives us an opportunity,
first one we have had in a long time, to actually discuss the
situation of discrimination, because most of them try to say
well, we don't do that. Now they have said they are going to
discriminate in the way they provide services and in hiring.
And, Mr. Sharp, shouldn't all citizens, if it is a government
funded contract, be eligible for jobs and services under the
government contract without facing invidious discrimination?
Mr. SHARP. I think we can agree everyone should be treated
with dignity and respect in those situations. And I think it
includes not only the recipients, but also the providers to
make sure that all of their interest and concerns are properly
balanced.
Mr. SCOTT. Does that mean that you ought to be able to get
a job at a government-funded agency without facing
discrimination?
Mr. SHARP. And again, I go back to--
Mr. SCOTT. Wait, wait, wait. They said they are going to
discriminate, so apparently, do you agree with that or not?
Mr. SHARP. And I apologize. Are we specifically referring
to Miracle Hill?
Mr. SCOTT. Or any other agency that is taking a faith-based
exemption and wanting to hire and discriminate, directly
discriminate based on religion. You are the wrong religion, you
don't get a job here. That is what Allen Yorker was told. I
mean that is what is going on. And we have an example here.
Live example that people are ducking and dodging. That is what
is going on.
Mr. SHARP. And again, not to duck and dodge, but for
Miracle Hill it is a religious organization, it is important
that they be allowed to hire individuals that share that
religious--
Mr. SCOTT. With Federal money? They can do that with their
own money. How about Federal money?
Mr. SHARP. I don't think we ought to condition Federal
dollars on the ability of a religious organization to hire
people that share their faith to accomplish their religion--
Mr. SCOTT. This isn't limited, as you suggested, to just
religious organizations. It is anybody with strongly held
beliefs. But a bunch of white Nationalists got a Federal
contract, could they be able to discriminate against African
Americans?
Mr. SHARP. Again, I said this earlier, RFRA has never
successfully been used to support racial discrimination.
Because the government has a compelling interest, as the
Supreme Court has recognized, to eradicate racism.
Mr. SCOTT. That is a strongly held belief. Ms. Wilcher, let
me ask you a question on Do No Harm. How would that effect the
administration of Executive Order 11246?
Ms. WILCHER. Well as I see it, it would hold harmless these
anti-discrimination provisions that exist. It would not
therefore allow them to be exempted or overturned, which is
what is important.
Mr. SCOTT. And could you administer the anti-discrimination
provisions of the Executive Order with the Do No Harm Act?
Ms. WILCHER. Yes.
Mr. SCOTT. And what are the problems if we don't have the
Do No Harm Act, what are the problems in enforcing the anti-
discrimination provisions of that law?
Ms. WILCHER. Again, depending on how RFRA is being
interpreted and applied, it could provide so many more
exemptions than currently exist. And particularly as it relates
to the LGBTQ community. And we are very concerned about that.
Mr. SCOTT. Thank you. And I yield for closing to the
Ranking Member.
Mrs. FOXX. Thank you, Mr. Chairman. I must be honest,
today's proceedings have disheartened me. It is one thing as
politicians for us to debate and disagree on issue areas and
ideas for how best to move the country forward. In fact, that
is the beauty of this Nation's political progress, thanks to
our freedom of speech and expression.
But it is a whole different ballgame when the issue being
debated is the First Amendment of the United States
Constitution itself. One of our colleagues said today, we take
an oath to do no harm. No, we don't take an oath to do no harm.
We take an oath to uphold the Constitution. Maybe she took a
different oath.
We are discussing a bill today with a title dripping with
irony. Do No Harm is a preposterous name for a bill that not
only directly violates the First Amendment and Americans'
freedom of religion, but also blatantly picks winners and
losers among Americans of faith.
The Do No Harm Act undermines a law that has served to
protect Americans from religious discrimination for 25 years.
RFRA is not about protecting certain religious groups over
others. RFRA applies to all religious faiths, including
minority religions. It is a balancing test to ensure a fair day
in court.
We are entering treacherous waters by considering
legislation that stifles proven bipartisan solutions, and more
seriously, our Bill of Rights. It is outrageous that Democrats
are advertising this legislation as guaranteeing fundamental
civil and legal rights when it dramatically attacks those same
rights for people with religious convictions.
We have a responsibility as lawmakers to defend and protect
the United States Constitution and the American people above
all else.
The bill discussed here today is not only outside the
bounds of responsible legislating and mainstream views about
religious freedom, it is also outside the jurisdiction of this
committee. Our time today would have been better spent
discussing legislation on which our committee could actually
vote. If any good was accomplished here it is that citizens of
faith have been alerted. Those who cherish religious freedom
have noted that elections have consequences and those
consequences are being manifested in today's hearing.
This hearing was intended to review the ``Misapplication of
the Religious Freedom Act.'' In reality, it misapplies our role
as legislators tasked with protecting the Constitution by
stripping citizens of their fundamental rights.
Nevertheless, Mr. Chairman, committee Republicans will
continue to stand up for religious freedom and oppose policies
that disrespect and diminish the faith of any American.
I yield back.
Mr. SCOTT. Thank you.
Mrs. FOXX. I am sorry, Mr. Chairman, I ask unanimous
consent to place in the record a letter from the U.S.
Conference of Catholic Bishops Committee for Religious Liberty
in support of the Religious Freedom Restoration Act and in
opposition to H.R. 1450.
Mr. SCOTT. Without objection. Before I conclude I would
like to make a few clarifying remarks.
The Do No Harm Act does not create a new affirmative
requirement to provide or cover abortion, birth control, or any
other type of healthcare. And Congress does pass laws that
protect reproductive healthcare access. Do No Harm would ensure
that RFRA cannot be used against those patients.
Because of several laws limiting coverage and provision of
abortion care, the 2016 Rule implementing Section 1557 of the
Act does not include requirements regarding coverage or
provision of abortion care itself, however the rule did make
clear that a woman cannot be discriminated against because she
had an abortion. And notably the Trump Administration just
proposed carving out this protection, just as another attack on
Constitutional rights.
I notice the time is just about out, but I would want to
remind everyone that the victim in this case is the person
trying to get a job or trying to get services without facing
discrimination.
We are talking about federally funded contracts, not what
churches can do on their own. They can discriminate in hiring
with their own money, they can do things like that. But if it
is a Federal contract they ought to play by the same rules that
everybody else is. You take the Federal money, you can't
discriminate in employment, you can't discriminate in who you
serve based on protected classes like religion. The services
provided on those agencies are under the jurisdiction of this
committee, particularly family placement services and others.
And so I think the hearing does indicate how these services
will be provided in agencies under our jurisdiction.
But it is a simple question. Under a government-funded
contract can you tell somebody that you are not entitled to a
job in this federally funded program because of your religion?
Yes or no?
I don't think you ought to be able to discriminate like
that, others think that there is some value in that. We have
been fighting that battle for a long time. I thought we had won
it in 1964, 1965, but apparently we have to re-fight that
battle all over again.
With that, if there is no further business to come before
the committee other than unanimous consent requests to
introduce into the record a number of letters and documents and
reports, I ask unanimous consent, without objection. So
ordered.
And the committee is now adjourned.
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