PROTECTING RELIGIOUS FREEDOM AFTER BOERNE V. FLORES (PART II)
HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
FEBRUARY 26, 1998
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of
Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
February 26, 1998
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Brooks, Donald W., Reverend, Diocese of Tulsa, Oklahoma
Brown, Suzanne, Brookline, New Hampshire
Hamlin, Richard, Reverend and Pastor, Evangelical Reformed Church, Tacoma, Washington
Mesiti, Jacob, Brookline, New Hampshire
Robb, Richard, Ypsilanti, Michigan
Rubin, Chaim, Rabbi, Congregation Etz Chaim in Los Angeles, California
Smith, Evelyn, Chico, California
Steel, Richard, Reverend and Pastor, Cedar Bayou Baptist Church, Baytown, Texas
Wigfall, Zari, Van Nuys, California
Wilson, III, Patrick, Reverend, on behalf of the Trinity Baptist Church of Richmond, Virginia, and the Richmond Affiliate of the Congress of Black Churches, Inc.
Wimberly, Jr., John, Reverend, Western Presbyterian Church, Washington, DC.
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Brooks, Donald W., Reverend, Diocese of Tulsa, Oklahoma: Prepared statement
Robb, Richard, Ypsilanti, Michigan: Prepared statement
Rubin, Chaim, Rabbi, Congregation Etz Chaim in Los Angeles, California: Prepared statement
Smith, Evelyn, Chico, California: Prepared statement
Steel, Richard, Reverend and Pastor, Cedar Bayou Baptist Church, Baytown, Texas: Prepared statement
Wilson, III, Patrick, Reverend, on behalf of the Trinity Baptist Church of Richmond, Virginia, and the Richmond Affiliate of the Congress of Black Churches, Inc.: Prepared statement
Wimberly, Jr., John, Reverend, Western Presbyterian Church, Washington, DC.: Prepared statement
APPENDIX
Material submitted for the record
PROTECTING RELIGIOUS FREEDOM AFTER BOERNE V. FLORES
(Part II)
THURSDAY, FEBRUARY 26, 1998
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:03 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Henry J. Hyde, Charles T. Canady, Bob Inglis, Ed Bryant, Asa Hutchinson, Robert C. Scott, and Jerrold Nadler.
Staff present: Keri Folmer, Chief Counsel; John Ladd, Counsel; Brett Shogren, Research Assistant; Michael Connolly, Staff Assistant; and Brian Woolfolk, Minority Staff.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY [presiding]. The subcommittee will be in order. This morning the subcommittee on the Constitution convenes to hear the real-life stories of individuals who have had their free exercise of religion substantially burdened by governmental action. These individuals have traveled to our nation's capital today from a variety of different regions of the country, and they come to us from a variety of different religious faiths.
In 1993, Congress passed the Religious Freedom Restoration Act, or RFRA, which required government to give a compelling reason for laws which substantially burden religious exercise. Unfortunately, the Supreme Court last June in Boerne v. Flores held that RFRA was not a valid exercise of Congress' power under section 5 of the Fourteenth Amendment.
The freedom to practice one's religion is a fundamental right and yet the Boerne decision has left men and women of faith, like those who have traveled to Washington to tell us their stories today, without adequate protection against laws that interfere with their religious practice.
We, in Congress, should work to restore protection of these men and women. America was founded upon the notion that Government should not interfere with the religious practices of its citizens. Constitutional protection for the free exercise of religion is at the core of the American experiment in democracy. I look forward to hearing from our witnesses today and I look forward to working successfully in this Congress to preserve our first freedom, the freedom to practice one's religion without government interference. I'm very hopeful that we will be able to develop a consensus among members of the subcommittee and the full committee on this important subject, and move forward with legislation to address the issue. Mr. Scott.
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On our first panel today, the first to testify this morning will be Ms. Zari Wigfall. Ms. Wigfall is a college student from Van Nuys, California. Then we will hear from Reverent Richard Hamlin. Reverent Hamlin, pastor of the Evangelical Reformed Church comes to us from Tacoma, Washington. Next will be Reverend Patrick J. Wilson, III. Reverend Wilson serves as Minister of Community Development with the Congress of Black Churches, Incorporated, in Richmond, Virginia. Finally on our first panel, we will hear from Reverend John Wimberly, Jr. Reverend Wimberly is pastor of the Western Presbyterian Church here in Washington, DC.
Again, we thank you all for being here with us this morning. I would ask that each of you summarize your testimony in 10 minutes or less, and without objection, your written statements will be made a part of the permanent record of this hearing. Again, thank you for being with us. Ms. Wigfall.
STATEMENT OF ZARI WIGFALL, VAN NUYS, CALIFORNIA
Ms. WIGFALL. During the Spring of 1994, I was a college student at Sacramento City College, and I had a 4.0 grade average, and I was interviewed to be a peer counselor assistant. The job required that I take new students on tours of the college campus so that they could become more familiar with the campus.
When I went to fill out and sign the paperwork—that was necessary for my employment—included was an oath of allegiance. While I don't want to show any disrespect to the United States, I follow the Bible's command to be neutral when it comes to political issues, and not to engage in or fight against any human being. Because of this, I feel it's important that I bear faith and true allegiance to God and His word, the Bible. If I didn't do this, I would be in conflict with my principles, and my conscience.
To back up the reason why I feel this way, in the Bible at Luke Chapter 4 and Verse 8, Jesus himself said it is written, it is Jehovah your God you must worship, and it is to Him alone you must render sacred service. So as one of Jehovah's witnesses, I could not give that sacred service to anybody else, only to God. Also, in Matthew, Chapter 26 and Verse 52, Jesus also said that those who take the sword will perish by the sword. And for that reason, I wouldn't want to put myself in any position where I would have to kill another human being. Because of these reasons, I was unable to sign the oath. And the swearing of true faith and allegiance to the United States or to any other human government against all enemies foreign and domestic, is something that does go against my religion's principles and also my conscience.
But this doesn't mean that I'm disrespectful to the Government or to the United States. Instead, I try as much as I can to be helpful to the community, and even to be an asset to the community.
I told Mr. Downs, who was the person that interviewed me that this was the case and I couldn't sign the oath for these reasons. At the time he said that it wouldn't be a problem, so I went ahead and turned in the rest of the paperwork and started working. The job was great for me because I was able to take college students on tours of the campus. I was also able to fit this job in with my school schedule, work it around my school schedule, and this provided me with an income to support my college education.
But after I worked this job for a week, Mr. Downs met me and informed me that I no longer had the job. And the reason why was because the dean had gotten my paperwork, and had said that because I wouldn't sign the oath, then I couldn't have the job. So, I tried to make the oath in harmony with my religions beliefs. And I asked if I could amend the oath so that I could sign it and turn it in. But the dean said that I couldn't. Even though Mr. Downs who had interviewed me was just as surprised and frustrated that this was an issue and that they would actually take my job away, there was nothing that he could do about it, so he had to find another student who was just as qualified as I had been for the job, and I no longer had a job.
The other thing that happened to me was later in the fall of 1994. My stage makeup teacher, Judy Radue, asked me if I would like to be a theater house manager for her play for children's theater ''Beauty and the Beast,'' and it ran for five consecutive weeks. So I agreed to do that, and as things went, there was paperwork I also had to fill out for the position. When I went through the paperwork, as I was filling it out, there was the oath of allegiance again. So I explained to the secretary in the theater office that I couldn't sign this oath of allegiance, and she said that the dean had said that if someone didn't want to sign the oath of allegiance then they didn't want to work for the school.
So because of that I was, once again, denied a job that I was well-qualified for. And again, my teacher was really surprised that this was an issue and she was even kind of upset and frustrated, but there was nothing she could do, so she had to give my position to some other student who was just as qualified as I had been.
And I guess for me the thing that's also kind of frustrating is the fact that being in the United States, just didn't think that this would be an issue because, I mean, in history books I read that there were times when citizens didn't really have rights, when there was no Constitution, and when the law didn't work for people of certain ethnic groups. But living today in the 1990's, we do have the Constitution, citizens are entitled to certain rights, and also minorities, including religious minorities, are given certain guarantees. And I just didn't think that this would be such an issue, and that because of my religious beliefs I would have two jobs taken away from me.
And I guess that sums up what I have to say.
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Mr. SCOTT. Ms. Wigfall, you know when we take an oath in court and many other places, they have an alternative, you must solemnly swear or affirm. Were you given an alternative that was not religious in the oath that was offered to you?
Ms. WIGFALL. No, I was never given an alternative.
Mr. SCOTT. Are you getting the mic?
Ms. WIGFALL. The Religious Freedom Restoration Act, actually I took it to court and the judge did rule in my favor because of that. But now that it is thrown out, I'm back to square one.
Mr. SCOTT. Who authorized—where did this oath come from, was this something just at the college or something that was administered statewide to everyone that wants a state job?
Ms. WIGFALL. This is in all state and Federal positions.
Mr. SCOTT. All state and Federal? Was your position a state or Federal position?
Ms. WIGFALL. A state position, through the college.
Mr. SCOTT. If the alternative, were you given the opportunity to affirm rather than to swear, and leave out the reference to Almighty God, would that have caused a problem?
Ms. WIGFALL. If I had been able to amend it or given an alternative that I could sign where I didn't have to pledge allegiance to the United States or also that I wouldn't have to put myself in a position to kill another human being, then I wouldn't have had a problem with it.
Mr. SCOTT. Reverend Hamlin, there's a privilege that attorneys have in terms of what they can be forced to say about what their client said. That privilege is not the attorney's privilege, it's the client's privilege. I understand your state law has a privilege that the penitent could have invoked. Did he invoke his privilege?
Mr. HAMLIN. He did, and it was ruled by this particular judge that it did not apply. And the reason he felt that it did not apply in this case is he said the penitent needs to demonstrate a compellingness to confess or to speak with clergy, and I struggled with that ruling for obvious reasons. How does one prove that? How does one demonstrate that? And that was our question. Nevertheless, it was thrown out for that reason and then that's when they pursued me.
Mr. SCOTT. So your suggestion is that the penitent should have the privilege. Are you suggesting that the minister should also have a privilege?
Mr. HAMLIN. Yes, I do.
Mr. SCOTT. If the penitent can invoke the privilege, why could he not, what would be the problem with him waiving the privilege and he would like to have what he said revealed?
Mr. HAMLIN. And I think those particular issues need to be thought through very carefully. The Ninth Circuit, for instance, that I made mention of, in that particular case, the penitent wanted the testimony from the clergy. The clergy person there did not. Yet the Ninth Circuit judge ruled in favor of the clergy person, that it is also the clergy's right to retain information. So I believe that it cannot be coerced out of me, it should be a matter deferred to clergy in these kind of issues, whether or not that information is given or not.
Mr. SCOTT. Thank you, Mr. Chairman.
Chairman HYDE. Thank you. Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I want to say, first, that I appreciate the convictions of each of our witnesses today. Society needs to see convictions, people standing on their beliefs, and you all demonstrate that, and I congratulate you for that, and I hope that all the young people in our nation can see this example. Secondly, this is a very important hearing as it deals with the issues of religious freedom which are critical to our society, to our constitutional government. It's something very important to our way of life; very precious to me. But it also deals with the relationship between Congress and the courts, that's the second reason it's so important. We have a fidelity to the Constitution here in Congress just as the court does, and there's a struggle between the two as to what the constitution means. So it's very, very important, what's happening. I congratulate Chairman Canady for holding this hearing, and thank you for your participation.
Now, if I understood right, three of you, anyway, had your issue resolved in court successfully, but Reverend Hamlin, yours is still pending. Is that correct?
Mr. HAMLIN. Correct.
Mr. HUTCHINSON. And Reverend Wilson, yours has not been resolved at all.
Mr. WILSON. No, it is not at all resolved.
Mr. HUTCHINSON. Okay, so we have two that have been resolved favorably in court. Now, Ms. Wigfall, yours was resolved favorably but at what cost?
Ms. WIGFALL. Well, now that the Religious Freedom Restoration Act is no longer around, I'm actually back to where I started.
Mr. HUTCHINSON. When you won your case, did you have your job available to you?
Ms. WIGFALL. Actually, at that point, I probably could have had it, if I needed to, but by the time it was resolved, I traveled through several semesters at school. So actually I don't even go to the same college anymore.
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. http://commdocs.house.gov/committees/judiciary/hju57221.000/hju57221_0.htm