STATEMENT OF RICHARD W. GARNETT, ASSOCIATE PROFESSOR OF LAW, NOTRE DAME LAW SCHOOL, SOUTH BEND, INDIANA

Mr. GARNETT. Mr. Chairman, I thank you and your colleagues for the chance to share my thoughts with you about the place of religion in civil society, and also about the protections that our Constitution guarantees to religious expression. These are issues of great importance to all of us, and to me as a lawyer, a teacher and as a citizen.

I have a longer law professorish statement that I would like to have included in the record if that is all right.

Chairman CORNYN. Certainly. It will be made part of the record without objection.

Mr. GARNETT. I will begin with a fundamental premise. As President Clinton put it nearly 10 years ago, religious freedom is literally our first freedom, and it was central to our Founders' vision for America. True, the framers did not always agree about what the freedom of religion meant, and we were reminded of that today. But they knew that it mattered, and they were right.

The protections afforded to religious freedom in our constitutional text and tradition are neither accidents nor anomalies. They are not, as one scholar has claimed, an aberration in our secular state. Our Constitution does not regard religious faith with grudging suspicion or as a bizarre quirk or quaint relic, rather as a former colleague of mine once observed, our laws protect the freedom of religion because religion is important, and because, put simply, the law thinks religion is a good thing.

In our tradition religious freedom is cherished a s basic human right and as a nonnegotiable aspect of human dignity. Accordingly, we should regard government restrictions on religious expression and not religious expression itself with sober skepticism.

As you know, Mr. Chairman, the law books and the papers are full of stories of public officials who have lost sight of these fundamental premises, and these officials have on occasion turned things upside down, treating citizens' public religious expression with suspicion rather than with evenhandedness and respect.

The good news though is that the Supreme Court by and large continues to reaffirm that the Constitution neither requires nor permits State actors to single out private religious expression for unfavorable treatment. The Court continues to remind us, in other words, as Justice Scalia has put it, that private religious speech, far from being a First Amendment orphan, is as fully protected as secular private expression.

Why does discrimination against religious expression continue again from time to time? I am confident that the public officials involved in the cases you have heard about today do not for the most part harbor ugly prejudice or deep hostility toward religious believers. Instead, I am convinced that many well-meaning Americans today fail to understand in several important ways the text, history and purpose of our First Amendment.

For starters, many misunderstand the meaning of the phrase "separation of church and State" and the place of this idea in our tradition. To be sure, the separation of church and State, if properly understood, is a crucial component of religious freedom, that

is, the institutional and jurisdictional separation of religious and political authority, respect for the freedom of conscience, and strict government neutrality with respect to different religious traditions, all of these separationist features of our Constitution, have helped religious faith to thrive in America. In other words, the separation of church and State, if properly understood, is not an anti-religious ideology, but an effective way to implement our overarching commitment to religious freedom.

Unfortunately, many have confused Jefferson's figure of speech about a wall of separation with an entirely unsound rule that would authorize public officials to scrub clean the public square of all sectarian residue. This view is seriously mistaken, and indeed, as John Courtney Murray lamented, about 50 years ago, arguments like this stand the First Amendment on its head, and in that position, he said, it cannot but gurgle nonsense. In fact, our Constitution separates church and State not to confine religious belief or to silence religious expression, but to curb the ambitions and reach of governments. The aim is not to put religion in its place after all, government lacks the authority to determine religion's place, but to protect religion by keeping the government in its place.

In addition, many of us have forgotten that the First Amendment constrains government conduct only. It has nothing to say about private action except of course to confirm that religious expression and exercise and worship are worth protecting. The establishment clause is not a sword, driving private religious expression from the marketplace of ideas. Rather the clause is a shield that constrains government precisely to protect private religiously motivated speech and action.

So nothing in our tradition implies a duty of self censorship by religious believers, and nothing in the First Amendment suggests that religious expression is out of place or unwelcome in public debate. Still, many appear to have the view that it is somehow in bad taste to bring religion into discussion of public policy. On this view, as Stephen Carter memorably put it, religion is like building model airplanes, just another hobby, something quiet, something trivial, not really a fit activity for intelligent adults.

But in fact our Constitution does not demand the trivialization of religion. and does not require what Richard Newhaus famously called a naked public square. There is no "don't ask-don't tell" rule that applies to religious believers who are presumptuous enough to venture into public life, and there is no special obligation on devout religious believers to sterilize their speech before entering the public forum. Active and engaged participation by the faithful is perfectly consistent with the institutional separation of church and State that the Constitution is understood to require.

Thank you very much.

[The prepared statement of Mr. Garnett appears as a submission for the record.]

Chairman CORNYN. Thank you, Professor Garnett.

Professor Rogers, we would be happy to hear from you.

STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF RELIGION AND PUBLIC POLICY, WAKE FOREST UNIVERSITY DIVINITY SCHOOL, WINSTON-SALEM, NORTH CAROLINA

Ms. ROGERS. Thank you Mr. Chairman, Senator Feingold and other members of the Subcommittee. I am Melissa Rogers, and I am Visiting Professor at Wake Forest University Divinity School. As you said, I also formerly served as the Founding Executive Director of the Pew Forum on Religion and Public Life and as General Counsel to the Baptist Joint Committee on Public Affairs.

I am also an attorney, a lifelong Baptist and a youth Sunday school teacher, probably one of the hardest of my jobs.

Mr. Chairman, I am not persuaded that there is persistent or frequent governmental hostility toward religious expression in the public square. I see no need for legislation on this issue. Indeed, I believe that religious freedom is something that America usually gets remarkably right.

Let me take a few minutes just to look at some of the examples that we have seen this afternoon. We have talked a lot about the Supreme Court, and I am sure we will do so more. In my opinion the Supreme Court has struck a very wise balance by prohibiting the government from promoting religion, but also by protecting the people's rights to promote their own religion. That is a very wise balance. It spells benevolent neutrality toward religion, not hostility toward religion. It promotes religious freedom, and it also, I would add, protects religion by keeping the government out of religion. That is good for religion. It helps religion to stay vital and autonomous from the State.

The first case that we talked about this morning was the Hearn case, and in my opinion, that case represents a very serious mistake that was made by the school, and I am grateful that the Department of Justice entered that case to set things right. The facts that I know do not suggest in that particular example a kind of generalized hostility to religion, but they may perhaps suggest some kind of particularized hostility to Islam, and certainly in the wake of the 9/11 attacks it is particularly important that our own country protect the practice of Islam and our own country. President Bush I think did a very good job of that right after the 9/11 attacks and we need to continue to educate people about the practice of Islam in America, and to protect students' expression of their faith by wearing a head covering and by having this opportunity to pray during the school day.

Several examples that Kelly Shackelford mentioned about students in schools and their giving gifts to other students and cards and things, when there were times for gift giving and the like, and from what I know about this, these sound like examples of personal expression of religion that the law protects. In other words, this is not a problem with the law, this is a problem with a misunderstanding of the law. In my general experience, like Professor Garnett, this does not stem from hostility towards religion, but ignorance about the law and confusion.

When any violation is identified like Nashala Hearn's, it is a serious matter. It is something that we should seek to rectify quickly. But we need to treat problems with the right remedy. When we have a misunderstanding of the law we need to educate people bet

ter about what the law is. We do not need to change the law in that situation.

Also the senior center also sounds to me like that is personal expression that the law protects. Indeed, I worked with people during my time at the Baptist Joint Committee to write some rules for senior citizens that allowed this kind of equal access rule to be instituted, where groups were allowed to have private meetings, whether they were religious or not, in the senior center, and they were allowed to do that without interference from the State because that was recognized as individual religious expression, not government religious expression. And there is an important difference between the two.

Judge Moore's case does not stand for the proposition that all Ten Commandments displays are unconstitutional. Beside being able to post Ten Commandments in our churchyards and our homes and the yards out in the front, there are also ways to display the Ten Commandments in a constitutional manner on government property. And this case does not prohibit public officials from acknowledging God. In my testimony I talk about many ways in which government officials can reflect their personal religious convictions and that is all quite appropriate. This case does not reflect hostility to religion. Instead this case stands for the proposition that the American Government will not endorse the majority Christian faith over other faiths. That is a noble proposition. It stands for the principle that the government will not become involved in the propagation of religion, but it will leave that task to citizens and to houses of worship. That is a wonderful proposition. It leaves us as religious people more free. The case stands for the notion that the American courts belong to all of us and not just those who believe a certain way.

As I have heard more about Judge Moore's case, I think about how I would feel as an attorney if I lived in another land, in another place, where the State endorsed Islam, for example. How would I feel if on my way to court I had to pass a central monument lifting up the religion of Islam? How would I feel if I was made to stand to listen to Islamic prayers in the courtroom before I started my case, and to give attention to those prayers? I think I would feel unwelcome as a Christian. I think I would feel that the State was coercing me to give respect and honor a religion I do not endorse or believe in. I think I would have legitimate concerns that that Nation's courts would not treat me and my fellow Christians as well as it would treat Muslims.

We cannot get off the hook by simply saying that will never happen in America. That is not a good justification. There has to be a principle here, and if the situation I described is intolerable and wrong in our own country and it is intolerable and wrong for a State-endorsed Islamic faith, then it is just as intolerable and wrong for us to do it as Christians in our own country. Instead we have to extend to others the same freedom we demand for ourselves.

Where there are misunderstandings of the law, either over interpretations or under interpretations, they need to be corrected. Those are serious mistakes, and any denial of religious freedom, I would work very hard to correct, and I have been a part of those

educational solutions in the past and I would like to work toward more educational solutions in the future. But the First Amendment gets it right. It prohibits the government from promoting religion, but protects the people's right to do so.

This is not the French rule. There was talk earlier about some effort perhaps in America to cleanse the public square of religion. France, I think, is arguably headed in that direction because they are saying, "You cannot have this religious symbol on government property. That is inappropriate. You are on government property. You take off that religious symbol." That is cleansing the public square of religion.

We do not have that rule. The key question in our own country is to whom the speech is attributable. If it is attributable to a person, then it is protected. If the promotion of religion is attributable to the State, then it is prohibited. That is the right rule.

Finally, let me just close by saying there is one thing that I want to mention that has troubled me in this hearing, among some other things. I have heard a number of people talk about on the one side we have religious liberty, and that is one thing, and on the other side we have this establishment clause. So we have religious liberty over here and we have the establishment clause over here. So the establishment clause is not a part of supporting religious liberty. It is almost as if we are saying the free speech and free exercise clause are religion's friend and the establishment clause is religion's foe. They are two different things and they do not work together.

I think by preventing the government from supporting religion we keep the government out of religion. We acknowledge that religion is not and should not be a creature of the State. We acknowledge that the government should not be making decisions about religion. Indeed, I feel sort of sick when I start hearing people talk about nonsectarian, nonproselytizing prayers. That means the government is going to determine what is sectarian and what is proselytizing. It means that the government is going to be very much involved in making determinations about religious doctrine and speech, and it seems to me we have to avoid that bad result. We also have to avoid the government endorsing religion, and we have to leave that promotion of religious expression to people and to their houses of worship.

By keeping the government from supporting religion, we actually ensure that religion remains vital, strong and autonomous in America.

In short and in closing let me say that under the free exercise clause, government should not interfere with religion. Under the establishment clause the government should not support religion. When we put these two things together, we get real religious freedom, and that is the noble goal we should continue to pursue. Thank you.

[The prepared statement of Ms. Rogers appears as a submission for the record.]

Chairman CORNYN. Thank you, Professor Rogers.

Professor Muñoz.