[Congressional Record Volume 144, Number 49 (Tuesday, April 28, 1998)]
[House]
[Pages H2400-H2415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page H2400]]
            RELIGIOUS FREEDOM AMENDMENT TO THE CONSTITUTION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentleman from Oklahoma (Mr. Istook) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. ISTOOK. Mr. Speaker, tonight I am going to be talking about a 
very important issue that is coming before this House in approximately 
a month, that being the Religious Freedom Amendment.
  Mr. Speaker, I will submit a copy of a detailed analysis of the 
proposed constitutional amendment which I will provide to the Clerk, to 
be printed and included in the Record.
  The Religious Freedom Amendment, known as House Joint Resolution 78, 
is responding to the public's very valid concern for the last 
generation that the courts in the United States of America have become 
hostile to religion. They have placed barriers to religious expression 
which do not exist for other forms of speech for free speech.
  A false standard has been created by the courts basically saying, 
well, if everyone is not unanimous in agreeing on some religious topic, 
then we ought to be censoring it, if it is something like a prayer in a 
public school during the school hours or the football game or at a 
graduation.
  In the next 30 days or so, Mr. Speaker, all across America we are 
going to have students graduating from high school, and in some places 
from college, and they will usually want what has become an American 
tradition, or was until the Supreme Court interfered, namely having a 
simple prayer to begin or to close or both at a public school 
graduation.
  In fact, it is a tradition. The earliest recorded public school 
graduation in the United States, according to the Supreme Court, 
featured a prayer. In fact, multiple prayers. But the Supreme Court has 
basically taken a stand and said if everybody does not agree, then we 
ought to censor it, because they say we do not want to have an 
establishment of religion created.
  Or some people use a catch phrase, and I will talk about this more, 
Mr. Speaker, use a catch phrase of saying, well, it would violate the 
wall of separation between church and State, which is not a phrase 
found in the American Constitution. It is a phrase that has been put in 
by other people for other purposes and often, rather than quoting the 
Constitution itself, people cite that phrase as though it explained 
everything.
  What does the Constitution say? ``Congress shall make no law 
respecting an establishment of religion or prohibiting the free 
exercise thereof.''
  The Supreme Court rulings against school prayer and other religious 
issues have been provoking public outrage since 1962. We have not had a 
vote here in the House of Representatives since 1971 on a proposal to 
correct the Supreme Court by amending the Constitution to provide for 
voluntary school prayer, and to reinstate other protections in 
religious expression which used to be common in the U.S.A. until 
approximately 36 years ago.
  Mr. Speaker, the text of the proposed amendment has been approved by 
the House's Subcommittee on the Constitution. It has been approved by 
the House Committee on the Judiciary. It is ready to come to this floor 
and will be coming to the floor soon.
  Let me quote, Mr. Speaker. It reads thusly:

       To secure the people's right to acknowledge God according 
     to the dictates of conscience: Neither the United States nor 
     any State shall establish any official religion, but the 
     people's right to pray and to recognize their religious 
     beliefs, heritage, or traditions on public property, 
     including schools, shall not be infringed. Neither the United 
     States nor any State shall require any person to join in 
     prayer or other religious activity, prescribe school prayers, 
     discriminate against religion, or deny equal access to a 
     benefit on account of religion.

  And of course under the normal process it is proposed that two-thirds 
of the House approve this amendment, two-thirds of the Senate approve, 
and then during a seven-year window of opportunity it would require 
ratification by the necessary three-fourths of the State legislatures.
  That, of course, is the process that was created by the Founding 
Fathers to amend the Constitution, and indeed it has been amended 
before to correct erroneous Supreme Court decisions. For example, the 
Dred Scott decision back in the middle of the last century provoked a 
lot of outrage with its decision that basically was in favor of 
slavery, and that was corrected by a later amendment to the 
Constitution.
  Mr. Speaker, a lot of people today, and I think the media has a great 
deal to do with this misleading, because we will find in the press too 
a lot of people are told, well, the issue is separation of church and 
State.
  Mr. Speaker, we could talk among ourselves and say, well, what does 
that term mean? But I think that it is instructive to look at what the 
Chief Justice of the United States Supreme Court, our current Chief 
Justice, William Rehnquist, has said about the use of this term, which 
he said has been used to mislead people about what the Constitution 
actually says and what the Founding Fathers actually intended when it 
comes to religious freedom.
  Justice Rehnquist, our Chief Justice, has written in official Supreme 
Court opinion that the use of that term should be ``frankly and 
explicitly abandoned.'' Those are his words. ``It should be frankly and 
explicitly abandoned.''
  Why? Because it has not been used to promote neutrality toward 
religion, but it has been used to promote hostility. Essentially, it 
has been used to say that if government is present, then religion must 
be absent. So if government comes into a situation, religion must be 
pushed out and pushed aside.
  Mr. Speaker, when we have the growth of government where it is with 
us in every aspect of our lives today, in schools, in something 
involving health care, in so many bodies that are created as public 
bodies, and we are told, ``My goodness, this is a government-funded 
activity. You cannot have a prayer to open or close, or we feel 
hesitant if you involve your religious beliefs in sharing your 
opinion.''
  For example, a first grade student in Medford, New Jersey, in the 
last year was told by a Federal judge that even though he won a 
contest, a reading contest, and could read whatever story he wanted, 
because he chose a story from the Beginner's Bible, the school said, 
``Oh, no, you cannot read that at school,'' and the Federal judge said, 
``That is right. You cannot read that at school,'' and cited as his 
mantra what Justice Rehnquist has condemned, separation of church and 
State.
  In Florida, in Fort Myers, Florida, they said they wanted to have a 
course not teaching doctrine but teaching about religion. And so they 
were going to have aspects of the course that dealt with the Bible as 
history, which is something that is supposed to be expressly approved, 
many people think, as long as it is taught as history. But the Federal 
judge in Florida ruled that they could teach about the Old Testament as 
history, but they could not teach anything about the New Testament 
because not everybody believes in the resurrection. So the Bible even 
as literature was singled out by a Federal judge. Why? Because they are 
following the standards set by the U.S. Supreme Court, standards not of 
neutrality but, unfortunately, to promote hostility.

                              {time}  2100

  Our courts blaze a wayward trail because they use a broken compass. 
Let me tell you, it was in the case of Wallace v. Jaffree that Chief 
Justice Rehnquist made his remarks about his little catch phrase, 
``separation of church and state.'' This was an opinion, it came down 
from the Supreme Court in 1985 in Alabama. Because they were so upset 
with the effort of the courts to strip prayer out of the public 
schools, they passed a law that said, let us have a moment of silence, 
a moment of silence at public schools. The U.S. Supreme Court ruled the 
moment of silence was unconstitutional because it could be used for 
silent prayer.
  A lot of Americans are not aware of that, Mr. Speaker. They do not 
know that the Supreme Court has gone so far as to say if you have a 
moment of silence, that is unconstitutional, because people could be 
offering a silent prayer. Now, if that is not an outrage, Mr. Speaker, 
I do not know what is.
  The Chief Justice was outraged by what five of the Justices did. It 
was a 5-4 decision. He was so outraged, and he wrote about it, and he 
talked about what they had said and the error of it.
  For example, the originator of the phrase ``wall of separation 
between

[[Page H2401]]

church and state'' is usually said to be Thomas Jefferson. But as Chief 
Justice Rehnquist noted in his opinion, and I quote here, ``It is 
impossible to build sound constitutional doctrine upon a mistaken 
understanding of constitutional history; but unfortunately, the 
establishment clause has been expressly freighted with Jefferson's 
misleading metaphor for nearly 40 years. Thomas Jefferson was, of 
course, in France at the time the constitutional amendment known as the 
Bill of Rights was passed by Congress and ratified by the States.''
  The person that originated that phrase was not involved in drafting 
the first amendment. So the Chief Justice said clearly in the Wallace 
v. Jaffree opinion, and I quote him again, ``The establishment clause 
did not require government neutrality between religion and irreligion, 
nor did it prohibit the Federal Government from providing 
nondiscriminatory aid to religion. There is simply no historical 
foundation for the proposition that the framers intended to build the 
wall of separation.''
  As Justice Rehnquist said, the evil that they wanted to address was 
from proposals to establish an official national church, or an official 
religion, because we do not want that in the United States of America. 
But he said, the Congress clearly intended to have a positive attitude 
toward religion.
  Then the Chief Justice said that this so-called wall of separation is 
actually what he labeled a blurred and distinct and variable barrier. 
He called it a metaphor based on bad history. In his words, quoting 
again, ``A metaphor based on bad history, a metaphor which is approved 
useless as a guide to judging, it should be frankly and explicitly 
abandoned.''
  Now, Mr. Speaker, I go through all that talking about what the Chief 
Justice of the U.S. Supreme Court has written merely to try to get 
people to understand that the issue is freedom. The issue is religious 
freedom.
  If someone wants to stand up in a school and together wants to say 
the Pledge of Allegiance, can they say the Pledge of Allegiance at a 
public school? Sure. There was a challenge to that a number of years 
ago. It came out of West Virginia. The U.S. Supreme Court wrote that no 
child can be compelled to say the Pledge of Allegiance. I agree with 
that. But, Mr. Speaker, they never gave a child who did not want to say 
it the right to censor and silence the classmates who did want to say 
the Pledge of Allegiance.
  Mr. Speaker, that is the correct standard that needs to be followed 
when it comes to a prayer that people may want to offer in public 
school, a positive expression of hope and faith at the beginning of the 
day. Whether it be part of a devotional activity, whether it be done on 
a school basis or classroom basis, whatever they choose to implement, 
the issue is the freedom to do so.
  Are we to say that, because someone has overly sensitive ears and 
they choose to be offended by an expression of faith, that, therefore, 
we must censor and we must silence those expressions? Or if there may 
be a chance that one prayer out of a million might be offensive, do we 
say that we silence a million prayers just to be sure that one 
particular offensive prayer is never uttered? We do not apply that 
standard of free speech. We say that something with which we may 
disagree is nevertheless protected.
  Were we to say that you can censor people if you do not like what 
they are saying, Mr. Speaker, we would not have free speech in this 
country. How, then, can we say you can censor what someone is saying if 
it is a prayer in a public place and still claim to have freedom of 
religion?
  No, Mr. Speaker, freedom of religion means that we accept those with 
whom we agree and those with whom we disagree. It means we look after 
the rights of the majority and the rights of the minority. We don't 
fall for this mistaken theory that the Bill of Rights is meant to 
protect only minorities and not protect the rest of us. It is meant to 
protect all of us with a standard of tolerance.
  In the cases where the U.S. Supreme Court ruled against prayer in 
public schools, one of the dissenting Justices was Supreme Court 
Justice Potter Stewart; and he noted that, if we really believe in 
diversity, then we ought to say people can offer their prayers. We know 
there will be different prayers, because we follow a basic principle, 
Mr. Speaker. You do not have a prayer composed by government. The 
religious freedom amendment says absolutely not. You do not have an 
imposition of government to require prayer to be said, nor its content.
  Who then selects a prayer or offers it? Well, we follow a very basic 
principle that is used in so many aspects of school, something we 
learned in kindergarten. It is called taking turns, and let different 
people have their turns, and let people be aware.
  Yes, there are diverse ways in which people pray. There are different 
opinions. But do we expect our children to be isolated from those 
during their daily activities at school, and then, when they become an 
adult, suddenly they are supposed to understand, suddenly they are 
supposed to be tolerant of different opinions when they have been told 
for years that those are dangerous or damaging or must be silenced? No, 
Mr. Speaker.
  As Justice Stewart wrote, in a society of compulsory attendance at 
public schools, to say that, during the school day, a child must be 
isolated from what is normal in everyday life is not neutrality. It is 
placing religion at an artificial and State-created disadvantage.
  Mr. Speaker, prayers are normal. They are common. We begin each day 
in this House of Representatives with a prayer. The United States 
Senate, the other body, begins its meetings with a prayer. Chambers of 
commerce, civic clubs, Lion's, Kiwanis, PTA organizations, State 
legislatures, city councils, all sorts of groups open with a prayer. 
Yet, if it happens in a public school, they say that is to be 
condemned.

  In the State of Alabama, there is an outrageous court order from a 
Federal judge that is covering the students there. Many students have 
been kicked out of school because the judge has issued a gag order 
against so much religious expression in the Alabama public schools, 
appointing monitors to make sure that something does not happen that he 
believes is wrong.
  I want to read to you from part of the opinion that was rendered by 
Federal Judge Ira DeMent in Alabama just this last year. As requested 
by foes of public prayer, U.S. District Judge Ira DeMent, permanently 
enjoined the schools from this, and I will read to you what he said 
could not happen under penalty of law. This was what was banned: 
``Permitting prayers, Biblical and scripture readings and other 
presentations or activities of a religious nature at all school-
sponsored or school-initiated assemblies and events, including, but not 
limited to, sporting events, regardless of whether the activity takes 
place during instructional time, regardless of whether attendance is 
compulsory or noncompulsory, and regardless of whether the speaker, 
presenter, is a student, school official, or nonschool person.''
  No matter what the occasion, if it involves a public school, whether 
it is from a student or anyone else, there better not be a prayer, 
whether it be in the classroom, a school assembly, a football game, a 
graduation, you name it.
  He appointed court monitors. In fact, he recently issued an order 
saying all the teachers and administrative personnel from the school 
system have to come to special training sessions to hear what the 
judge's standards are to make sure that people do not mouth religious 
utterances in a public school.
  Mr. Speaker, that is not free speech. That is not freedom of 
religion. That is oppression of religion masquerading, masquerading as 
constitutional law. Why do the courts do this?
  Remember what the First Amendment says. Congress shall make no law 
respecting an establishment of religion or prohibiting the free 
exercise thereof. That last phrase is basically ignored by the Supreme 
Court and, therefore, by the inferior courts, because the Supreme Court 
has said, well, anything, anything that smacks of religion becomes 
suspect.
  Therefore, even if you are not creating a church, you are not 
advocating an official set of beliefs, you are not telling people that 
we are going to have a hierarchy, or priesthood, or a church building, 
or a tithing, or doctrine, or theology or any of those things, 
nevertheless, if it is a simple prayer, that is going too far. That is

[[Page H2402]]

too close to an official establishment of religion. Mr. Speaker, that 
is using the establishment clause of the Constitution as a weapon to 
suppress the free exercise of religion.
  One of the outrageous things, and there is plenty of them, one of the 
outrageous things in the Supreme Court decisions came in the graduation 
prayer case, the Lee v. Weisman decision, which came out of a public 
school graduation in Rhode Island; and in that case, Justice Kennedy 
wrote that a prayer must be assumed to be offensive. That is right. He 
said a prayer must be automatically assumed to be offensive. Those were 
his words, Mr. Speaker.
  Do we automatically assume that anything else is not only offensive, 
but must be suppressed? We do not apply that to about anything else 
other than, I guess, pornography, Mr. Speaker. We say that you have to 
be silent about this because we find it to be offensive.
  Now, if it is pornography, let us kick it out, and let us enforce the 
laws against it. But since when is a prayer or religious utterance 
considered to be automatically assumed to be offensive?
  The Internal Revenue Service, and, you know, obviously, they are 
following the same rationale as Justice Kennedy, the Internal Revenue 
Service, in one of its major California districts, sent out a memo to 
its employees about 2 years ago. The memo said, in your personal work 
space or on your desk, you cannot have any sort of religious emblem or 
item. It may be a little nativity scene. No. It may be a star of David, 
no. It may be a Bible, no.
  I wrote them, Mr. Speaker. I said, why are you doing this? The 
Internal Revenue Service wrote back to me, citing some different court 
cases. Frankly, Mr. Speaker, I think they went beyond them, but citing 
a court case, they said, items which are considered to be intrusive , 
such as religious items or sexually suggestive cartoons or calendars, 
were to be banned.
  Mr. Speaker, that is the full list of what they said was offensive, 
to be banned; if it is religious, or if it is sexually suggestive, if 
it is pornographic. You see how the courts are equating the two, saying 
that something that is religious is offensive.
  Mr. Speaker, that flies in the face of everything on which this 
country was founded and on which most Americans place their hope and 
faith and trust. It flies in the face of what we believe.
  Mr. Speaker, I yield to the gentleman from Indiana (Mr. Souder).
  Mr. SOUDER. Mr. Speaker, I want to thank the gentleman from Oklahoma 
for his leadership and persistence on this issue in pushing us to get a 
House vote and to give us at least the opportunity to attempt to pass 
this constitutional amendment. I could not take any more of the 
examples. My outrage was rising. It is inconceivable that even a moment 
of silence is illegal because people might be thinking about prayer.

                              {time}  2115

  The danger in our society, if we keep backing away from this moral 
premise, is if we ever do get a moment of silence, the kids will be 
thinking about stock market reports instead of a prayer. And is that 
really going to be better for America if we lose this idea that there 
is a power higher than us?
  I find it extremely offensive that in class, and I agree with the 
gentleman's allusion to this. It is not clear where the law exactly is 
on a lot of this. In fact, school districts have been intimidated for 
fear of lawsuits and, probably because of that, have gone farther than 
they need to go. But currently in America we are in a situation where a 
teacher probably could talk about Native American religions but, boy, 
she better be careful if she mentions Jesus Christ.
  A teacher could probably post on the wall, Desiderata was big back 
when we were in college, to God, whoever he may be but, boy, if they 
put the 23rd Psalm up there or the 10 Commandants, that might poison 
these poor little kids.
  It is one thing if they have a book of astrology or magic spells on a 
desk, but what if it is a Bible? Woe be to that teacher, because these 
kids might pick up something that has a moral base.
  Now if the kids in the hall want to talk to other kids about 
marijuana or how that works, or crack or how that works, as long as 
they are not selling drugs, they can talk about drugs all day. But if 
they want to talk to another child about eternal salvation, they will 
probably go down to that principal's office, may even, as a friend of 
my son's did, get expelled from school for raising the question. Not 
aggressively pushing it, for raising the question of eternal salvation 
because it could make somebody feel bad.
  You can wear a Black Sabbath T-shirt, a mockery of the Sabbath and 
all this kind of thing, but if you wear a religious T-shirt, you might 
be evangelizing. Not that all this crappy rock music stuff is 
evangelizing or the drug hints or the hats that you can find in many 
stores in the mall with the marijuana weed on it or other types of 
drugs, that is not evangelizing. But, boy, if you have any religion on 
your T-shirts or symbols that could make other kids feel slightly 
intimidated, you can be reprimanded.
  What are we coming to? I don't understand how we have gotten in this 
situation in the country. It is why so many people are despairing. It 
is why we have to take the extraordinary step that the Founding Fathers 
have given us to go to a constitutional amendment.
  Quite frankly, we can pass laws here in Congress, and the courts do 
not seem to care. If we just pass laws without amending the 
Constitution, we are totally at their mercy to continue this what I 
believe is nonsense in these rulings.
  Mr. ISTOOK. I think the gentleman has made some excellent points. Yet 
I want to give a lot of credit to the American people. We are a 
generation beyond now the original decisions in 1962, and people have 
not given up.
  It is not just the public opinion polls, because they consistently, 
for 36 years, show that 75 percent or more of the American people 
support a constitutional amendment to make it possible to have prayer 
in public schools or a nativity scene on public property or whatever it 
might be, so long as we are not establishing an official church or a 
national religion or saying that somebody has precedence because their 
religion is better than somebody else's. We do not do that.
  And the American people haven't given up because, as the gentleman 
knows, there is a lot of civil disobedience that goes on. There are 
people that are still having prayer, in some cases in public schools or 
at football games or at school graduations, often because the ACLU has 
not gotten around to their town yet.
  But the moment that the ACLU does come in, or some of the other 
groups that work with them and bring these lawsuits around the country, 
groups like Americans United for Separation of Church and State or 
People for the American Way, these are groups that are typically 
involved with the ACLU and these lawsuits to suppress religious 
expression because it makes some people uncomfortable.
  Well, as we know, it is common for someone to say something with 
which someone else may disagree, and we are supposed to be taught to be 
tolerant, but they are teaching them to be intolerant. But yet the 
American people keep trying.
  We have something called the Equal Access Act, and that means that 
before school starts or after school kids have been able to get 
together in Bible clubs, although they have problems with them there. 
They are not permitted the same rights as other school clubs. They 
cannot meet during the hours once school starts until school is out for 
the day. Other clubs can meet during the day in different set-aside 
time but not the Bible clubs. Or they can have a faculty adviser but 
not the Bible clubs. Or they can be recognized in the yearbook and 
other things as other groups are, but the Bible clubs are typically 
excluded.
  I looked through my high school annual recently. I graduated from 
high school in Texas in 1967. There is Fellowship of Christian Athletes 
and Youth for Christ, but in many places today those are considered 
suspect and they have to be handled with care. Yet clubs for any other 
purpose, as the gentleman mentioned, are routinely approved.
  So some people say, well, the fact that we have Bible clubs being 
formed at school or kids having prayer before or after school in their 
groups of their own initiative, that is not a symbol of the fact that 
there is nothing wrong, because there are things wrong. It is a

[[Page H2403]]

symbol of the great desire of the American people and how they are 
always looking for a way.
  But why should we say that in classrooms where, as the gentleman 
mentioned, they may be talking about drugs, they may be talking about 
sex, they may be talking about all sorts of different alternate life-
styles, but if somebody gives a religious perspective or says we ought 
to be able to start our days with prayer just like the U.S. Congress 
does, oh, no, we cannot do it, and people are threatened with arrest.
  I have to tell my colleague another horror story here. In Galveston, 
Texas, Santa Fe High School, a Federal judge was persuaded that, since 
the initiative came from students, he said, well, okay, you can have a 
prayer at graduation, but I will have a U.S. Marshal there, and if 
anybody mentions the name of Jesus Christ, they can be arrested and be 
held accountable to me.
  So it was not enough that they tried to squeeze out the ability to 
have some semblance of prayer. The judge wanted to control it. And how 
offensive that is to so many people.
  I know we have people of different faiths. We will pray different 
ways. But we learn. We learn from our differences.
  Mr. SOUDER. If the gentleman will yield, it is almost, well, it is 
not almost inconceivable, it is inconceivable when we have gangs, we 
have drug problems all over our country, we have teachers getting raped 
in the hallways, and we are concerned about stamping out anybody 
talking about Jesus Christ.

  In 1983 and '84, I cannot remember which year, when then Congressman 
Dan Coats, I was working on his district staff, was working on the 
equal access bill, we actually had a series of problems come up in the 
school district that my kids were in that helped provide some of the 
fodder that led to the passage of the equal access bill, including a 
series of rules that the administration did not mean for the parents to 
get ahold of, which included not allowing any religious affiliated 
instructors or teachers or ministers to go on school grounds during the 
day.
  The way this came about is one rural high school, the student who got 
in trouble at school asked to talk to his pastor. The pastor came into 
the school, and that led to a banning of pastors going into the school 
during the school day.
  The church that I grew up in had a children's home. Many of those 
people who worked as house parents were lay pastors. And the question 
is, could they go on to school grounds? No, they were banned under this 
rule. It was absurd. You could not use the school for after hours if 
you had any religious affiliations.
  This whole prayer question. A whole series of type of things led to 
many of these changes, supposedly covered by equal access. But we have 
backslid.
  I want to use one other personal example. For anybody who, by any 
stretch of the imagination, thinks that I am a liberal, this will get 
rid of that impression. I mean, there are issues where I disagree with 
the majority of my conservative friends, and tomorrow on the amendment 
of the gentleman from California (Mr. Frank Riggs) and other things on 
affirmative action, it is one area where I have a disagreement. But, 
for the most part, I am very conservative; and my roots are very 
conservative.
  I grew up in the Apostolic Christian Church of America. It is a very 
fundamentalist church. When we join that church, we do not have infant 
baptism. We believe in the age of accountability, and we commit our 
lives to Jesus Christ. When we do, we agree to accept certain 
guidelines of that church. When we accept those guidelines, we are 
expected to follow them.
  One of the guidelines is that we do not go to movies. That was a 
difficult thing, I think it was my junior year in high school, because 
the school decided to go to the Sound of Music. Now, the church rule 
was not PG films or G films, it was no movies. That meant that I had to 
go sit alone in a classroom while the rest of the kids went to see 
Sound of Music.
  I did not file an objection to stop everybody else in the school 
because I was isolated, because my religious beliefs were a minority 
and somehow I was going to be eternally damaged or even temporarily 
damaged because I was singled out, because other kids made fun of me 
because of my church, because I was extra conservative. I had to go sit 
alone.
  The small school that I grew up in has a lot of Amish around it. The 
Amish do not believe in taking public showers. Therefore, often they 
were excused from gym or had to sit there or did not shower if they had 
to go to the gym class. But the school did not cancel gym classes. And 
in this particular school 12 percent of the kids were Amish. Twelve 
percent was not considered a significant enough minority to change the 
behavior of the rest of the school around it.
  There needs to be a sensitivity. And I have to say I never ran into a 
teacher who mocked my religious beliefs. I ran into plenty who 
questioned my religious beliefs and were curious about them or told me 
they did not think they were very sound even biblically, but nobody 
mocked my beliefs.
  And, quite frankly, because I had to go through experiences much, 
quite frankly, like other minorities have gone through in different 
ways, I had to decide to give in or actually firm up my beliefs.
  In fact, to use a reverse example, the Communist party, in their 
indoctrination, used to send new recruits onto the street to try to 
spread their doctrine. And when they were attacked, they learned the 
beliefs better than if they did not have to defend them.
  I learned more about the principles, not all of which I agree with 
today; but, at the same time, I learned to understand even why rules 
were there that I did not agree with because I had to execute them and 
I had to execute them in a period where I was the only one or sometimes 
one of only three who held that position.
  I did not go to my senior prom because I did not dance. And I was 
senior class president, and I was supposed to speak at the senior prom. 
They had printed up the programs with my name in it. I told them I am 
not going to go. It was embarrassing, and it was difficult as a senior. 
It was difficult in many of these years to go through that personal 
discipline of being different than everybody else. But I did not ask 
everybody else to change because they were not like me.
  The problem we have in America right now is that, if there are a few 
people who do not like what the majority of the people like, they feel 
they have a right to stop them from their practice of religious 
freedom, which, quite frankly, is the fundamental belief that America 
was founded on; that we were going to have free exercise of religion; 
that we were going to be able to worship God as we saw fit; that in 
America we had a fundamental belief in this Congress, in this body, in 
the Christian holy trinity.
  Now, we have more diversity in America today, but it is still the 
preponderant belief. All our laws, as Francis Schaeffer said, are 
really echoes and remnants, if not direct outgrowth, of old testament 
law and of the Judeo-Christian tradition. If we lose that foundation as 
a country, we are lost.
  What we are trying to do, and what the gentleman has tried to do in 
his leadership with this religious liberty amendment, is to allow free 
practice. We could make a case that our Founding Fathers, with their 
State establishment of religion, which they did not ban, different 
States had State religions, intended it to go far more. They just did 
not want one national religion. They believed in aggressive promotion 
of religious values.
  We are not asking that anymore. In America, we are down to saying, 
can we not wear a T-shirt; can we not put a Bible on our desk; can we 
not talk to other people about our religious faiths? This is how far we 
have gone in America. This is the least we can do. Not the most we can 
do. It is the least we can do for our children in our schools is to 
allow them free exercise of religion.
  We are not trying to impose anything here. Now we have the reverse. 
The minority is imposing on the majority.
  Mr. ISTOOK. I think the gentleman makes some excellent points. The 
first amendment's first protection, the Bill of Rights, the very first 
thing is freedom of religion. That is the first thing the Founding 
Fathers put in the bill of rights. And yet now, this doctrine that the 
courts have adopted is, as the gentleman has illustrated, it is 
encouraging people not only to be thin-skinned

[[Page H2404]]

but to seek to control the behavior of others under the guise of 
freedom. It is a topsy-turvy philosophy.
  We need to recognize that the intolerant person is not the one who 
wants to be able to say a prayer. The intolerant person is the one who 
insists on stopping it and bringing down the weight and power and might 
of the Federal Government through the Federal courts to stop people 
from simple religious expression such as a prayer.

                              {time}  2130

  The cases go on. There was another case in Texas where a minister 
that had an antidrug program was banned from presenting it in public 
schools not because there was anything religious about his 
presentation. But simply because he was a minister. In Colorado, a 
teacher was fired, and the courts upheld the firing, for reading a 
Bible during the class reading time when the students were told, ``This 
is reading time. Read whatever you want to read.'' And while the 
students read when they wanted to read, he read his Bible, and he was 
fired because he was told, ``You cannot do that,'' and he insisted upon 
doing it. And the courts said that was okay?
  You take symbols. In San Francisco, California, in a city park for 
more than 60 years there has been a large cross. Even during FDR's days 
when Franklin D. Roosevelt was President of the United States, in a 
national address he praised that as a great example and monument. And 
the Supreme Court a year ago said it has got to go.
  There have been similar cases in Hawaii and Eugene, Oregon, saying we 
should not have those on public property. And yet, if we will pull out 
a dollar bill, on the back of the dollar bill is the Great Seal of the 
United States and the stars on the Great Seal, the 13 stars, are 
arranged in the form of the star of David. And we have plenty other 
religious references.
  Mr. SOUDER. If the gentleman would further yield, behind us on the 
wall is Moses. All the other lawgivers are pointing to the side.
  Mr. ISTOOK. We have a couple Popes on the wall of the House Chamber.
  Mr. SOUDER. Moses is looking straight on the Speaker's chair. We 
know, and our Founding Fathers knew, where our laws were derived from.
  Mr. ISTOOK. If we look right above the Speaker's chair, above the 
Speaker's chair and the flag are emblazoned the words ``In God we 
trust,'' which we also find on our currency. There are people that find 
that offensive. Does that mean we should take it off?
  Mr. SOUDER. It is important to know these were not additions after 
the Republicans took over Congress in 1994. They have been here under 
Republicans, they have been here under Democrats, because we have a 
unified tradition in America that this is our cultural heritage, it is 
our spiritual heritage, it is the foundation our country is built on.
  Mr. ISTOOK. And the religious freedom amendment is intended to 
protect these to say that the standard ought to be the same as it is 
for the Pledge of Allegiance. If they do not want to say it, that is 
fine, but that does not mean that they can stop other students that may 
want to have a prayer in public school.
  Take the Supreme Court's decisions on nativity scenes, the Allegheny 
v. Pittsburgh ACLU case from the Supreme Court, where they said they 
cannot have a nativity scene or a Jewish menorah, they were both 
covered on public property there, because there was not in the same 
line of sight secular emblems, Santa Claus, plastic reindeer, and so 
forth.
  In Jersey City, New Jersey, gosh, over 30 different religions have 
been permitted by Mayor Bret Schundler to put their religious emblems 
on City Hall property, but they got sued over the nativity scene. And 
the judge said, well, they have done it for the other religions, that 
is fine, and they put out a manger scene, and they have put here 
secular emblems, Santa Claus, the plastic reindeer, Frosty the Snowman, 
but it is still not good enough because the nativity scene is just too 
powerful, and it has got to go. So that was another Federal court 
ruling this last December. Outrageous. But it comes from the U.S. 
Supreme Court's case and the Allegheny case.
  Now, do my colleagues know what I am really waiting on? The Supreme 
Court says, well, they can't have religious emblems unless they balance 
them with a secular emblem, and even then they say the religious 
emblems are too powerful. But I have never seen them say they cannot 
have secular emblems unless they balance them with religious emblems. 
Are we going to say they cannot have a Frosty the Snowman unless they 
also have Mary and Joseph?
  Let us get real, my colleagues. Let us quit being so thin-skinned. 
Let us make the standard where the religious freedom amendment says, 
which is what Justice Rehnquist said, it is what the Founding Fathers 
intended. We do not want an official religion. We will not have an 
official religion in the United States of America. That is inconsistent 
with freedom of religion. But suppressing expressions of religious 
heritage or tradition or belief or a prayer on public property, that is 
also inconsistent with our beliefs in America. So let us correct these 
court decisions.
  Mr. SOUDER. Perhaps my colleague had not heard, we cannot refer to 
him as Santa Claus. It is just Claus. ``Santa'' is, of course, 
``saint'' in Spanish, so we really should not say that. And I am 
waiting for it to be called Patrick's Day rather than St. Patrick's 
Day. It has a little bit of religious overtones. We have to be so 
careful in our society anymore.
  Mr. Chairman, at the end of this particular special order, I would 
like to insert into the Record an article. It is actually a book review 
in this week's Weekly Standard magazine by Richard Neuhaus, one of the 
tremendous Christian writers in this country who wrote ``Religion in 
the Public Square.'' He has a review of John Noonan's new book ``The 
Luster of Our Country, the American Experience of Religious Freedom.'' 
I would like to insert this review into the Record at the end of this 
special order.
  He makes two points in this review that, in fact, one of the reasons 
some people want to suppress religious freedom and free exercise is 
that, in fact, it is a danger to the State; that there have been a 
number of efforts in this country rooted in religious freedom, the 
abolition of slavery, the war against polygamy, the prohibition of 
alcohol, and the civil rights movement under the leadership of Martin 
Luther King, that really forced changes in our political system.
  Furthermore, he points out in this book, he has whole chapters to 
four contrasting case studies. The French Revolution's affirmation and 
betrayal of the American idea of religious freedom; the American 
imposition of the idea on a defeated Japan; Russia's current and deeply 
flawed efforts to incorporate the idea; and the American influence in 
the Second Vatican Council's teaching on religious liberty.
  In other words, in societies where they have not followed our pattern 
of religious freedom, they have developed problems. And because we 
allowed it, religious freedom, in fact, drove the system and changed 
the system.
  One other thing that I would like to insert into the Record also 
following this article is a cover story in this week's U.S. News about 
James Dobson. This article is not directly on this subject but touches 
on some of the problems of this country that are occurring because of 
the lack of responsiveness.
  I know the gentleman from Oklahoma (Mr. Istook) has been in some of 
these meetings, as well as our friend, the gentleman from Colorado (Mr. 
Bob Schaffer) in the chair. We have some differences as to how to 
approach this, but what we understand is that Dr. James Dobson has been 
a spokesman and has been a mentor to many of us in his family issues 
and how he has done this, and he is speaking for a lot of our 
supporters and millions of people in America when he says that he is 
frustrated and he is frustrated with the types of thing that the 
gentleman from Oklahoma has been talking about tonight and I have been 
talking about when he says in here, and he is speaking for many people 
when he said that he cares about the moral tone of the Nation. ``I care 
about right and wrong. I have very deep convictions about absolute 
truth.''

  And he says, had he stayed simply on family themes, he could have 
moved with ease through all denominations and in both political 
parties. But he has started to speak out because he is

[[Page H2405]]

concerned about the general thrust and direction of our society that 
causes some heartburn in our party, causes some heartburn in Members of 
Congress, such as the gentleman from Oklahoma and myself.
  At the same time, we understand why this article says ``a righteous 
indignation,'' because that is what many people in America feel right 
now. They do not understand what in the world is wrong with the 
government. The examples that my colleague has given defy common sense.
  Mr. ISTOOK. Mr. Speaker, I think the gentleman is making the point 
that we cannot separate values and principles and moral standards from 
the religious beliefs which gave them birth and gave them life and give 
them meaning.
  If we look at the original founding document of this Nation, the 
Declaration of Independence, there is a very well-known clause in that. 
Many people only read it partway. But I am speaking of the clause that 
says, ``We hold these truths to be self-evident that all men are 
created equal; that they are endowed by their Creator with certain 
inalienable rights; that among these are life, liberty, and the pursuit 
of happiness; that to secure these rights, governments are instituted 
among men.''
  Now, if we look at what the Founding Fathers wrote, Mr. Speaker, we 
see that they say our rights did not come from the State, they did not 
come from the Federal Government, they did not come from the State 
government, they did not come from a local government, they did not 
come from a king, they do not come from an emperor, our rights come 
from God. ``We hold these truths to be self-evident. We are endowed by 
our Creator with certain inalienable rights.''
  And what is the purpose of government according to the Declaration of 
Independence? To secure these rights, to secure the rights which come 
to us from God. That is what the Founding Fathers wrote they believed 
was the purpose of government, to protect our God-given rights.
  I must question, if we cannot acknowledge the author of our rights, 
if we cannot acknowledge the origin of our rights, if we cannot express 
belief in He who created our rights, for which government was created 
to protect those rights, if we cannot do those things, can we stay 
believers and true persons to those beliefs and to the principles on 
which this Nation was founded? If we abandon the source of this Nation, 
we abandon its principles.
  Mr. Speaker, the religious freedom amendment is intended to protect 
these rights which are in jeopardy. It has not gone without notice 
across the world that even though we enjoy great religious freedom in 
the United States of America, but let us not measure it by what we have 
left. Let us look at what has been taken away by these and other court 
decisions.
  They have been chipping and chipping and chipping away at our rights. 
Are we then to be satisfied because we still have something left, or 
must we recognize the process of this chipping away, of this 
diminishing, of this fencing in of our rights and our freedom and our 
precious religious heritage? Are we to accept this false notion that, 
as government expands, religion must shrink to maintain a separation 
between church and state, because we live in the era of expanding 
government, and if that is the philosophy, then expansion of government 
necessitates a shrinking of religion?
  Mr. Speaker, that is not the philosophy in which our Founding Fathers 
believed. That is why I quoted Chief Justice Rehnquist on that, and 
many other things to this effect can be found in their writings. We 
want to have a positive attitude toward religion, but make sure that we 
never embark upon anything that would create any official religion or 
any official church or any official faith for the United States of 
America. But the severity of this problem in the USA has been noted 
around the world.
  I want to read a statement from Pope John Paul II, which he issued 
this past December, just 5 months ago. He was greeting the new American 
Ambassador to the Vatican, and Pope John Paul II spoke these words to 
the new American Ambassador: ``It would truly be a sad thing if the 
religious and moral convictions upon which the experiment was founded 
could now somehow be considered a danger to free society such that 
those who would bring these convictions to bear upon your Nation's 
public life would be denied a voice in debating and resolving issues of 
public policy. The original separation of church and state in the 
United States was certainly not an effort to ban all religious 
conviction from the public sphere, a kind of banishment of God from 
civil society.''

                              {time}  2145

  Mr. Speaker, it is time that we take notice and that we take action. 
We will have the opportunity on the floor of this House within 
approximately a month to vote on the Religious Freedom Amendment. It 
has been approved by the Subcommittee on the Constitution, by the 
Committee on the Judiciary, it has over 150 Members of Congress who are 
cosponsors of it. I hope even more will add their names to it.
  I hope, Mr. Speaker, that those all across the country who are aware 
of this will contact their Member of Congress. I hope they will say to 
their Member of Congress, ``We need to protect our religious freedom, 
we need to reverse the attack upon prayer in school and our other 
religious freedoms, we need the Religious Freedom Amendment, and we 
expect our Members of Congress to support it.'' Members of Congress 
need to hear that message.
  Our children in public school need to be free to have a simple 
message of hope and faith in their school day, and let them be aware 
that yes, there are some differences in how some people pray and we 
have some differences among us that reflect some of our different 
faiths. But yet we are united, we are united by our common beliefs that 
almost all Americans share.
  That certainly was part of the beliefs of the Founding Fathers, that 
we owe our existence to God, and if we do not recognize God and if we 
do not do it freely and openly and consistently and yes, daily, Mr. 
Speaker, then how long can we expect the blessings of the Lord to 
continue with us and with our families and with our beloved Nation? We 
need that freedom which has been under attack by the courts.
  Let me share with you once again, Mr. Speaker, the words of the 
Religious Freedom Amendment which would become a part of the 
Constitution, not to replace the First Amendment but to supplement it, 
to be side-by-side with it. The Religious Freedom Amendment states as 
follows:

       To secure the people's right to acknowledge God according 
     to the dictates of conscience: Neither the United States nor 
     any State shall establish any official religion, but the 
     people's right to pray and to recognize their religious 
     beliefs, heritage or traditions on public property, including 
     schools, shall not be infringed. Neither the United States 
     nor any State shall require any person to join in prayer or 
     other religious activity, prescribe school prayers, 
     discriminate against religion, or deny equal access to a 
     benefit on account of religion.

  Those are the simple words, that is the simple language which will 
correct these things which we have been discussing, which will correct 
these wayward court decisions, which will give the Supreme Court a 
better compass than the one which they have been following.
  Mr. Speaker, it is long overdue. We should have had this vote decades 
ago. I am so grateful to be an American, to live in a land where the 
American people have not lost their faith, but they need to be free to 
express it. With faith comes value, with faith comes principles, with 
faith comes morals, with faith comes strength, and with faith comes the 
blessings, the blessings of liberty which we seek to secure for 
ourselves and for our posterity.

 Detailed and Legal Analysis Of the Religious Freedom Amendment, House 
                          Joint Resolution 78

              (By U. S. Congressman Ernest J. Istook, Jr.)


      The Religious Freedom Amendment (House Joint Resolution 78)

       ``To secure the people's right to acknowledge God according 
     to the dictates of conscience: Neither the United States nor 
     any State shall establish any official religion, but the 
     people's right to pray and to recognize their religious 
     beliefs, heritage or traditions on public property, including 
     schools, shall not be infringed. Neither the United States 
     nor any state shall require any person to join in prayer or 
     other religious activity, prescribe school prayers, 
     discriminate against religion, or deny equal access to a 
     benefit on account of religion.''


                               Background

       The Religious Freedom Amendment, House Joint Resolution 78, 
     responds to the public's

[[Page H2406]]

     valid concern that our courts have become hostile to 
     religion, placing barriers to religious expression which do 
     not exist for other forms of free speech.
       A false and impossible standard of unanimity has been 
     created, saying that if a single person objects to a prayer 
     or other religious expression, then an entire group must be 
     silenced and censored. This is the exact opposite of free 
     speech. Free speech exists only when people have a right to 
     say something with which others disagree.
       For over 36 years, court decisions have harmed religious 
     freedom in America; the Religious Freedom Amendment (RFA) is 
     intended as the solution, because the courts have left no 
     other remedy than to amend the Constitution. Over 150 Members 
     of the House of Representatives are co-sponsoring the RFA. It 
     also is supported by a broad coalition that includes 
     Christian groups, and Jewish groups, and Muslim groups. 
     Support ranges from America's largest black denomination, the 
     National Baptists, to the Salvation Army, Youth for Christ, 
     and the country's largest Protestant group, the Southern 
     Baptist Convention, and many more.
       Supreme Court rulings on school prayer and other religious 
     issues have provoked public outrage since 1962. Throughout 
     the last 36 years, public opinion polls consistently show 
     about 75% or more of the American public want a 
     constitutional amendment supporting prayer in public schools.
       Not since 1971 has such a constitutional amendment been 
     voted upon in the House of Representatives.\1\ The Senate 
     conducted votes in 1966,\2\ 1970,\3\ and 1984.\4\ Obviously, 
     none of those succeeded. Additionally, related votes not 
     involving a constitutional amendment have ranged from efforts 
     to limit the jurisdiction of the federal courts, to equal 
     access proposals, to riders on appropriations bills. (These 
     efforts are described in detail in a 1996 report by the 
     Congressional Research Service.\5\) In 1997, on March 4th, 
     the House approved legislation (HCR 31) to promote display of 
     the Ten Commandments on public property, despite Supreme 
     Court rulings to the contrary. It prevailed by 295-125, a 70% 
     margin. It was, however, only a resolution of support, not 
     changing any statutes or court decisions, much less changing 
     the Constitutional language which the courts have 
     misconstrued.


                            Text of the RFA

       The RFA will end 27 years of inaction by the House on a 
     constitutional amendment, by adding to our Constitution this 
     language:
       ``To secure the people's right to acknowledge God according 
     to the dictates of conscience: Neither the United States nor 
     any State shall establish any official religion, but the 
     people's right to pray and to recognize their religious 
     beliefs, heritage or traditions on public property, including 
     schools, shall not be infringed. Neither the United States 
     nor any State shall require any person to join in prayer or 
     other religious activity, prescribe school prayers, 
     discriminate against religion, or deny equal access to a 
     benefit on account of religion.'' \6\
       H.J. Res. 78 also includes the normal protocol for 
     submitting this text to the states for ratification, with a 
     seven-year limit on that process.


                About ``separation of church and state''

       The phrase ``separation of church and state'' is a term 
     whose usage has been officially condemned by the Chief 
     Justice of the Supreme Court, William Rehnquist, and with 
     good reason. He labels it a ``mischievous diversion of judges 
     from the actual intentions of the drafters of the Bill of 
     Rights. . . . a metaphor based on bad history, a metaphor 
     which has proved useless as a guide to judging.'' Rehnquist 
     then stated his conclusion: ``It should be frankly and 
     explicitly abandoned.'' \7\
       The term ``separation of church and state'' has been 
     frequently used not to promote official neutrality toward 
     public religious expression, but to promote hostility. 
     Essentially, it suggests that whenever government is present, 
     religion must be removed. Unfortunately under this 
     philosophy, because government today is found almost 
     everywhere, the growth of government dictates a shrinking of 
     religion. ``Separation'' becomes a euphemism for ``crowding 
     out'' religion.
       A proper analysis should center on the actual text of the 
     Constitution, but too often the language of the Constitution 
     is ignored, and is replaced with a focus on the catch-phrase 
     ``separation of church and state.'' It is cited almost as a 
     mantra, often in an effort to foreclose further discussion, 
     and without critical analysis of what the phrase actually 
     might mean. That phrase is not found in the Constitution; yet 
     it commonly is erroneously treated as the standard measuring 
     stick for religious freedom issues.
       A wrongful focus on this term inevitably becomes 
     antagonistic to religion, because its premise is that 
     wherever government exists, religion must be pushed aside, to 
     maintain the ``separation.'' Since American government today 
     is far, far larger than in the days of our Founding Fathers, 
     or than in any other era,\8\ its expansion automatically 
     crowds out religious expression. When government enters, 
     religion must exit. Our courts are blazing a wayward trail 
     because they use a broken compass, a fact noted by dissenters 
     on the Supreme Court. Chief Justice Rehnquist has decried the 
     phrase as a ``misleading metaphor'' which the Court has 
     followed ``for nearly forty years.'' \9\
       After reviewing at great length both the extra-
     Constitutional origin of the phrase, and the history of the 
     development of the First Amendment itself, Chief Justice 
     Rehnquist in Wallace v. Jaffree, 472 U.S. 38 (1985) condemned 
     the reliance on the phrase ``separation of church and 
     state''. Among his comments:
       ``The evil to be aimed at, so far as those who spoke were 
     concerned [in the Congress which approved the First 
     Amendment], appears to have been the establishment of a 
     national church, and perhaps the preference of one religious 
     sect over another; but it was definitely not concern about 
     whether the Government might aid all religions evenhandedly.

                           *   *   *   *   *

       ``It would seem from this evidence that the Establishment 
     Clause of the First Amendment had acquired a well-accepted 
     meaning: it forbade establishment of a national religion, and 
     forbade preference among religious sects or denominations. 
     Indeed, the first American dictionary defined the word 
     ``establishment'' as ``the act of establishing, founding, 
     ratifying or ordainin(g,'') such as in ``[t]he episcopal form 
     of religion, so called, in England.'' 1 N. Webster, American 
     Dictionary of the English Language (1st ed. 1828). The 
     Establishment Clause did not require government neutrality 
     between religion and irreligion nor did it prohibit the 
     federal government from providing non-discriminatory aid to 
     religion. There is simply no historical foundation for the 
     proposition that the Framers intended to build the ``wall of 
     separation'' that was constitutionalized in Everson.

                           *   *   *   *   *

       ``Our recent opinions, many of them hopelessly divided 
     pluralities, have with embarrassing candor conceded that the 
     ``wall of separation'' is merely a ``blurred, indistinct, and 
     variable barrier,'' which ``is not wholly accurate'' and can 
     only be ``dimly perceived.'' [Citations omitted.]

                           *   *   *   *   *

       ``But the greatest injury of the ``wall'' notion is its 
     mischievous diversion of judges from the actual intentions of 
     the drafters of the Bill of Rights. . . . The ``wall of 
     separation between church and State'' is a metaphor based on 
     bad history, a metaphor which has proved useless as a guide 
     to judging. It should be frankly and explicitly abandoned.

                           *   *   *   *   *

       ``The Framers intended the Establishment Clause to prohibit 
     the designation of any church as a ``national'' one. The 
     Clause was also designed to stop the Federal Government from 
     asserting a preference for one religious denomination or sect 
     over others. Given the ``incorporation'' of the Establishment 
     Clause as against the States via the Fourteenth Amendment in 
     Everson, States are prohibited as well from establishing a 
     religion or discriminating between sects. As its history 
     abundantly shows, however, nothing in the Establishment 
     Clause requires government to be strictly neutral between 
     religion and irreligion, nor does that Clause prohibit 
     Congress or the States from pursuing legitimate secular ends 
     through nondiscriminatory secular means.''
       The Religious Freedom Amendment reflects Rehnquist's 
     analysis as Chief Justice of the Supreme Court, and corrects 
     the decisions he criticizes.
       Catch-phrases such as ``separation of church and state'' 
     \10\ have had a chilling effect in modern America because 
     government has expanded into almost every area of life. If 
     the church must be segregated from government, then 
     government's entry into any activity is a de facto expulsion 
     of religion from that area. The severity of the problem was 
     noted by Pope John Paul II, on greeting the new American 
     ambassador to the Vatican in December, 1997, when he stated, 
     ``It would truly be a sad thing if the religious and moral 
     convictions upon which the American experiment was founded 
     could now somehow be considered a danger to free society, 
     such that those who would bring these convictions to bear 
     upon your nation's public life would be denied a voice in 
     debating and resolving issues of public policy. The 
     original separation of Church and State in the United 
     States was certainly not an effort to ban all religious 
     conviction from the public sphere, a kind of banishment of 
     God from civil society.''


     how will the rfa change the outcome of previous supreme court 
                               decisions?

       As noted in numerous examples, some of which follow, the 
     RFA reflects the opinions expressed by many Supreme Court 
     justices prior to the Court's detours in recent years, and 
     also reflects the dissenting opinions of many Justices during 
     this period. (Often these were 5-4 decisions, meaning the 
     dissenters were but a single vote short of being a majority.) 
     The RFA effectively incorporates (or re-incorporates) their 
     arguments into the Constitution.
       The following are some of the key decisions which are 
     affected:


                            engel v. vitale

       --The threshold case of Engel v. Vitale\11\ held that 
     government may not compose any official prayer or compel 
     joining in prayer. This portion of Engel would remain intact. 
     However, that portion of Engel which precluded students from 
     engaging in group classroom prayer even on a voluntary basis 
     would be corrected by the RFA.\12\


                   abington school district v. schemp

       --Abington School District v. Schemp\13\, to the extent 
     that it prohibited the composition

[[Page H2407]]

     or imposition of prayer by an entity of government, would 
     remain the law under the RFA. But to the extent that Abington 
     broadly permits the Establishment Clause to supersede the 
     Free Exercise Clause, it would yield to the standard 
     enunciated in Justice Stewart's dissent:
       ``It is, I think, a fallacious oversimplification to regard 
     these two provisions as establishing a single constitutional 
     standard of ``separation of church and state,'' which can be 
     mechanically applied in every case to delineate the required 
     boundaries between government and religion. We err in the 
     first place if we do not recognize, as a matter of history 
     and as a matter of the imperatives of our free society, that 
     religion and government must necessarily interact in 
     countless ways. Secondly, the fact is that while in many 
     contexts the Establishment Clause and the Free Exercise 
     Clause fully complement each other, there are areas in which 
     a doctrinaire reading of the Establishment Clause leads to 
     irreconcilable conflict with the Free Exercise Clause.''


                           wallace v. jaffree

       --The prohibition on silent prayer in public schools, 
     incorporated into Wallace v. Jaffree\14\, would be corrected 
     by the RFA. Silent prayer (as well as vocal prayer) would be 
     legitimized, so long as there was no government dictate 
     either to compel that it occur, or to compel any student to 
     participate.
       As Chief Justice Burger stated in his dissent in Wallace v. 
     Jaffree:
       ``It makes no sense to say that Alabama has ``endorsed 
     prayer'' by merely enacting a new statute ``to specify 
     expressly that voluntary prayer is one of the authorized 
     activities during a moment of silence, . . . To suggest that 
     a moment-of-silence statute that includes the word ``prayer'' 
     unconstitutionally endorses religion, while one that simply 
     provides for a moment of silence does not, manifests not 
     neutrality but hostility toward religion.

                           *   *   *   *   *

       ``The notion that the Alabama statute is a step toward 
     creating an established church borders on, if it does not 
     trespass into, the ridiculous. The statute does not remotely 
     threaten religious liberty; it affirmatively furthers the 
     values of religious freedom and tolerance that the 
     Establishment Clause was designed to protect. Without 
     pressuring those who do not wish to pray, the statute simply 
     creates an opportunity to think to plan, or to pray if one 
     wishes . . .''
       In Justice Potter Stewart's dissent from Abington, he found 
     permitting school prayer is a necessary element of diversity:
       ``. . . the duty laid upon government in connection with 
     religious exercises in the public schools is that of 
     refraining from so structuring the school environment as to 
     put any kind of pressure on a child to participate in those 
     exercises; it is not that of providing an atmosphere in which 
     children are kept scrupulously insulated from any awareness 
     that some of their fellows may want to open the school day 
     with prayer, or of the fact that there exist in our 
     pluralistic society differences of religious belief.''


                             lee v. weisman

       --Graduation prayers (so long as not prescribed by 
     government) would be freed of the prohibition in Lee v. 
     Weisman, 505 U.S. 577 (1992). Justice Kennedy wrote in that 
     case that the normal expectation of respectful silence (which 
     is expected for so many other school programs), became 
     coercion when a rabbi offered a graduation prayer, because 
     it creates ``pressure, though subtle and indirect, . . . 
     as real as any overt compulsion.''
       The RFA takes issue with Justice Kennedy's view, and 
     instead embodies the views of the four Justices who dissented 
     to this 5-4 decision. Whether at a graduation or other school 
     setting, the RFA incorporates the conclusions of these four 
     Justices (Scalia, Rehnquist, White and Thomas) that 
     ``hearing'' is not ``participating'' and ``hearing'' is not 
     ``joining'' in prayer, and thus there was no coercion to 
     pray.
       The Court never explained how expecting respect for a 
     rabbi's prayer at graduation is worse or more ``coercive'' 
     than expecting courtesy and quiet for non-religious school 
     presentations, or for the Pledge of Allegiance which was also 
     a part of the graduation ceremony. The majority, though, 
     turned its back on neutrality by holding that expecting 
     courtesy and tolerance is coercive, even though seeking 
     respect for non-religious speech was normal and permitted. 
     But because Lee V. Weisman transmuted simple listening into 
     ``participation'', the Religious Freedom Amendment instead 
     requires something greater than this before an activity is 
     deemed to be an infringement of rights. The RFA applies a 
     simple common-sense standard that makes prayer an expressly-
     permitted activity, so long as actual joining-in and/or 
     prescribing of prayer are not required. Listening is not 
     joining and is not participating and is not coercion.
       In dissenting to Lee V Weisman's 5-4 ruling, Justice Scalia 
     called the new ``psychological coercion'' standard 
     ``boundless, and boundlessly manipulable''.\15\ He noted that 
     prayer at school graduations had been standard since the 
     first known graduation from a public high school, in 
     Connecticut in July 1868.\16\ Just as the RFA now does, 
     Justice Scalia and the other three dissenting justices 
     distinguished between being present and actually joining in a 
     prayer. As these four justices wrote (at 636):
       ``. . . According to the [majority opinion of the] Court, 
     students at graduation who want ``to avoid the fact or 
     appearance of participation,'' . . . in the invocation and 
     benediction are psychologically obligated by ``public 
     pressure, as well as peer pressure, . . . to stand as a group 
     or, at least, maintain respectful silence'' during those 
     prayers. This assertion-the very linchpin of the Court's 
     opinion--is almost as intriguing for what it does not say as 
     for what it says. It does not say, for example, that students 
     are psychologically coerced to bow their heads, place their 
     hands in a Durer-like prayer position, pay attention to the 
     prayers, utter ``Amen,'' or in fact pray. . . . It claims 
     only that students are psychologically coerced ``to stand . . 
     . or, at least, maintain respectful silence.'' . . . The 
     Court's notion that a student who simply sits in ``respectful 
     silence'' during the invocation and benediction (when all 
     others are standing) has somehow joined--or would somehow be 
     perceived as having joined--in the prayers is nothing short 
     of ludicrous.''
       The standard of Lee v. Weisman's bare 5-4 majority has been 
     dangerous, because it declares that simple exposure to 
     religious speech (like exposure to pornography) is so 
     inherently damaging that people must be protected from it. In 
     the majority opinion, Justice Kennedy wrote (at 505 U.S. 
     594), ``Assuming, as we must, that the prayers were offensive 
     . . .''. Even pornography is granted a chance to be measured 
     against prevailing community standards; but prayer is assumed 
     automatically to be offensive. Lee v. Weisman's subjective 
     standard permits a lone ``offended'' individual to silence 
     all others in a public place, thereby censoring their 
     religious expressions.
       The effect of this ruling was to create the dangerous 
     notion of a new ``freedom from hearing'' right which is 
     superior to others' express free speech rights under the 
     First Amendment. This is especially insidious and chilling 
     when it is used for prior restraint of religious speech. It 
     also perpetuates the notion that an offense to a few must be 
     corrected, even if doing so gives offense to the vast 
     majority. As Justice Kennedy noted (505 U.S. 595), ``for many 
     persons an occasion of this significance lacks meaning if 
     there is no recognition, however brief, that human 
     achievements cannot be understood apart from their spiritual 
     essence.'' But he found that interest immaterial, so long as 
     any one person was offended. The four dissenters took a view 
     much more in keeping with respecting the rights of all, and 
     not just of a few. They noted that, in trying to avoid 
     offense to one student and one parent, the Court's anti-
     graduation prayer ruling ignored the fact that it was giving 
     offense to all the other students and parents. They stated 
     (at 505 U.S. 645):
       ``The reader has been told much in this case about the 
     personal interest of Mr. Weisman and his daughter, and very 
     little about the personal interest on the other side. They 
     are not inconsequential. Church and state would not be such a 
     difficult subject if religion were, as the Court apparently 
     thinks it to be, some purely personal avocation that can be 
     indulged entirely in secret, like pornography, in the privacy 
     of one's room. For most believers it is not that, and has 
     never been. Religious men and women of almost all 
     denominations have felt it necessary to acknowledge and 
     beseech the blessing of God as a people, and not just as 
     individuals, because they believe in the ``protection of 
     divine Providence,'' as the Declaration of Independence put 
     it, not just for individuals but for societies; because they 
     believe God to be, as Washington's first Thanksgiving 
     Proclamation put it, the ``Great Lord and Ruler of Nations.'' 
     One can believe in the effectiveness of such public worship, 
     or one can deprecate and deride it. But the longstanding 
     American tradition of prayer at official ceremonies displays 
     with unmistakable clarity that the Establishment Clause does 
     not forbid the government to accommodate it.''
       Lee v. Weisman, in discussing the tradition of graduation 
     prayer, also included an interesting note that the practice 
     was part of the first known American graduation ceremony. As 
     it noted (at 505 U.S. 635):
       ``By one account, the first public high school graduation 
     ceremony took place in Connecticut in July 1868--the very 
     month, as it happens, that the Fourteenth Amendment (the 
     vehicle by which the Establishment Clause has been applied 
     against the States) was ratified--when 15 seniors from the 
     Norwich Free Academy marched in their best Sunday suits and 
     dresses into a church hall and waited through majestic music 
     and long prayers.''
       Under the pretense of promoting tolerance, our courts have 
     thus been used to promote censorship. The RFA corrects this, 
     protecting the rights of both minorities and majorities. The 
     Constitution and the Bill of Rights were intended to protect 
     each and every one of us, not merely some of us.


                            Stone v. Graham

       --The ability to post the Ten Commandments on public 
     property (as an expression of religious beliefs, heritage or 
     traditions of the people), prohibited by Stone v. Graham,\17\ 
     becomes protected under the RFA, although there would be 
     neither a mandate nor a guarantee that it would be proper 
     under all circumstances. But Stone v. Graham's automatic 
     prohibition on such a display would be ended.
       Stone's majority decision expressed concern that posting 
     the Ten Commandments would ``induce the schoolchildren to 
     read, meditate upon, perhaps to venerate and obey, the 
     Commandments.'' \18\ But, in dissent, Chief Justice Rehnquist 
     noted:\19\

[[Page H2408]]

       ``The Establishment Clause does not require that the public 
     sector be insulated from all things which may have a 
     religious significance or origin. . . . Kentucky has decided 
     to make students aware of this fact by demonstrating the 
     secular impact of the Ten Commandments.''
       Chief Justice Rehnquist then quotes from a 1948 opinion 
     \20\ by former Justice Jackson:
       ``. . . Perhaps subjects such as mathematics, physics or 
     chemistry are, or can be, completely secularized. But it 
     would not seem practical to teach either practice or 
     appreciation of the arts if we are to forbid exposure of 
     youth to any religious influences. Music without sacred 
     music, architecture minus the cathedral, or painting without 
     the scriptural themes would be eccentric and incomplete, even 
     from a secular point of view. . . . I should suppose it is a 
     proper, if not an indispensable, part of preparation for a 
     worldly life to know the roles that religion and religions 
     have played in the tragic story of mankind. The fact is that, 
     for good or for ill, nearly everything in our culture worth 
     transmitting, everything which gives meaning to life, is 
     saturated with religious influences, derived from paganism, 
     Judaism, Christianity--both Catholic and Protestant--and 
     other faiths accepted by a large part of the world's 
     peoples.''


                           Lemon v. Kurtzman

       --Lemon v. Kurtzman \21\ and its subjective three-pronged 
     test have often been used to achieve a desired result rather 
     than to guide an analysis. The Lemon test would necessarily 
     be revised, because a ``purely secular'' objective would no 
     longer be compulsory. Recognition of religious heritage, 
     tradition or belief would be a proper objective, so long as 
     it did not rise to the level of promoting a particular faith.


                           Allegheny v. ACLU

       --The case of County of Allegheny v. ACLU, Greater 
     Pittsburgh Chapter,\22\ would be brought back into line with 
     Lynch v. Donnelly.\23\ (Both were 5-4 decisions.) The so-
     called ``plastic reindeer'' test for holiday symbols on 
     public property would no longer be decisive. Lynch permitted 
     display of a government-owned Nativity scene, whereas 
     Allegheny restricted the display of a private creche on 
     public property, citing a need for better visual ``balance'' 
     with secular emblems. It would be no more compulsory to add 
     secular items to a religious display than to require adding 
     religious symbols to ``balance'' purely secular displays.
       A truer test would consider whether symbols of differing 
     faiths were afforded similar opportunity for display during 
     their special seasons. The proper test would be whether 
     government sought to establish an official religion, rather 
     than outlawing traditions from a public forum.
       The Religious Freedom Amendment would correct the Supreme 
     Court's bias that secular symbols, regardless of how 
     perverse, are constitutionally-protected for public 
     display,\24\ whereas religious symbols are considered 
     suspect. The intent of the RFA is to  re-establish true 
     neutrality, by affording religious expression the same 
     equal protection as other expression, rather than the 
     pretense of neutrality that too often exists in name 
     only.\25\ The carryover of true neutrality would extend to 
     other aspects of once-common but now-suppressed 
     reflections of beliefs, heritage and traditions. School 
     holiday programs would not feel the pressure to limit 
     songs to ``Frosty the Snowman'' or ``Rudolph the Red-Nosed 
     Reindeer''. The carols of Christmas, the hymns of 
     Thanksgiving, the songs of Hanukkah, and those of other 
     holidays and other faiths would be welcome. Tolerance and 
     understanding would be promoted, rather than avoided. The 
     standard would be that reflections of faith, meaning 
     minority faiths as well as majority faiths, are clearly 
     permitted, so long as it does not progress into advocating 
     or promoting any particular faith.


                  Section-by-section review of the RFA

       Preamble: ``To secure the people's right to acknowledge God 
     according to the dictates of conscience: . . .''
       The preamble has a purpose. As former Chief Justice Story 
     described the nature of a constitutional preamble, ``Its true 
     office is to expound the nature and extent and application of 
     the powers actually conferred by the Constitution, and not 
     substantively to create them.'' \26\ The preamble to H.J. 
     Res. 78 serves principally to indicate intent, to assist in 
     interpreting the substantive provisions.
       The concept of this particular preamble is attributed 
     chiefly to Forest Montgomery, legal counsel for the National 
     Association of Evangelicals. There is nothing unique or 
     unusual, however, to have constitutional language which 
     expressly mentions God. Such language is the rule, and not 
     the exception, in our state constitutions.
       Critics of this mention of God should review the 
     constitutions of our 50 states. Through these, the American 
     people have freely embraced attitudes very different from 
     those expressed by the U.S. Supreme Court. All fifty of our 
     states \27\ have adopted express and explicit mentions of God 
     in their constitutions or preambles. The attached Appendix 
     details the express language, from each of the states.
       In Alaska, the constitution states that its citizens are 
     ``grateful to God and to those who founded our nation . . . , 
     in order to secure and transmit to succeeding generations our 
     heritage of political, civil and religious liberty''. In 
     Colorado, theirs reads, ``with profound reverence for the 
     Supreme Ruler of the Universe.'' Idaho states, ``grateful to 
     Almighty God for our freedom,'' which is the identical phrase 
     used by California, and Nebraska, and New York, and Ohio, and 
     Wisconsin. Pennsylvania phrases it as ``grateful to Almighty 
     God for the blessings of civil and religious liberty, and 
     humbly invoking His guidance.''
       Some go even farther. Maryland's Article 36 declares ``the 
     duty of every man to worship God.'' Maryland's constitution 
     further states that nothing in it shall prohibit references 
     to God or prayer ``in any governmental or public document, 
     proceeding, activity, ceremony, school, institution, or 
     place'' and declares that those things are not considered to 
     be an establishment of religion. Virginia's refers to the 
     ``duty which we owe to our Creator'' and to the ``mutual duty 
     of all to practice Christian forbearance, love and charity.''
       These references to God are typical of our state 
     constitutions.
       Just as America adopted ``In God We Trust'' as our national 
     motto, the states have mottoes, often incorporated on their 
     state seals. Arizona's seal states, ``Ditat Deus'', meaning 
     ``God Enriches.'' Florida's seal states, ``In God We Trust.'' 
     Ohio doesn't put it on a seal, but proclaims its motto, 
     ``With God, All Things Are Possible.'' \28\
       The Religious Freedom Amendment echoes the philosophy found 
     in our state constitutions, namely that faith guided the 
     creation of America's common principles and ideals, and faith 
     is at the core of preserving them. It tracks the essence of 
     the Declaration of Independence, wherein our Founding Fathers 
     proclaimed that our rights come not from government, but from 
     God, declaring, ``We hold these truths to be self-evident, 
     that all men are created equal, that they are endowed by 
     their Creator with certain unalienable Rights; that among 
     these are Life, Liberty and the pursuit of Happiness. That to 
     secure these rights, Governments are instituted among Men.''
       The Religious Freedom Amendment also applies a phrase 
     common to many of the original state constitutions: 
     ``according to the dictates of conscience''. Virginia used it 
     in 1776 as part of its Declaration of Rights, proclaiming, 
     ``all men are equally entitled to the free exercise of 
     religions, according to the dictates of conscience.'' It 
     appeared with slight variations in the original constitutions 
     of Delaware, New Jersey and North Carolina (all 1776), 
     Vermont (1777), Massachusetts (1780) and New Hampshire 
     (1784). Today, this phrase of ``according to the dictates of 
     conscience'' is echoed in the constitutions of 28 states--
     Arkansas, Connecticut, Delaware, Georgia, Indiana, Kansas, 
     Kentucky, Maine, Massachusetts, Michigan, Minnesota, 
     Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, 
     North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, 
     South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and 
     Wisconsin.
       It must always be stressed that the Religious Freedom 
     Amendment is not intended to override the First Amendment's 
     prohibitions on establishing any religion as a state religion 
     and on creating official status for any set of beliefs. The 
     RFA would not do this. The preamble's inclusion of the 
     phrase, ``according to the dictates of conscience,'' is the 
     first of multiple protections within the Religious Freedom 
     Amendment to safeguard the rights of religious minorities.
       The term ``according to the dictates of conscience'' does 
     not, however, protect lewd behavior under the claim or 
     pretense of religion. Although worded in absolutist fashion, 
     the First Amendment nevertheless yields when necessary to 
     avoid ``substantial threat to public safety, peace, or 
     order''.\29\ The courts have determined that free exercise of 
     religion is not a license to disregard general statutes on 
     behavior, such as those against advocating violent overthrow 
     of the government,\30\ outlawing polygamy \31\, use of 
     illegal drugs \32\, prostitution \33\, and even snake-
     handling \34\. The right to free speech does not permit 
     shouting ``Fire!'' in a public theater \35\, or wanton and 
     intentional libel and slander \36\. Free speech does not give 
     students a right to interrupt and usurp class time to speak 
     whenever they want about whatever they want. Neither does the 
     RFA. The RFA would not permit or sanction disruptive behavior 
     by those wishing to pray or to speak about religion. It does 
     not open public schools to anyone who might wish to enter to 
     bring in their own religious message. Trespass remains 
     trespass. The RFA simply permits religious openness by those 
     students who have a right (and usually a legal obligation) to 
     attend school.
       ``The people's right'' is a right held both by individuals 
     and as a collective group. The RFA does not, however, create 
     a mechanism for government officials to begin dictating 
     wholesale inclusion of religious symbols for constant or 
     incessant display on public property, because they would 
     remain bound by the First Amendment's prohibition against 
     establishing an official religion via government! The RFA 
     simply shifts the boundary, away from exclusionism and into 
     greater accommodation, but stops well short of actual 
     endorsement of religion. It provides a check upon the court 
     challenges which have erroneously equated and confused 
     accommodation and recognition with endorsement.
       The RFA would correct the trend of using the Establishment 
     Clause to run roughshod over the Free Exercise Clause. The 
     First Amendment consciously established a tension by stating 
     not only what government could not do, but also stating what 
     the people could do. Our courts have instead used it

[[Page H2409]]

     to halt voluntary religious expressions by citizens, 
     individually and collectively, whenever government has some 
     connection.
       Because the scope and intrusiveness of government into all 
     aspects of American society has grown so rapidly, it has 
     become all-pervasive, making it a rare occasion when there is 
     no presence of government. Accordingly, the judicially-
     created ``wall of separation'' has become a moving wall. As 
     the presence of government constantly expands, this standard 
     crowds out opportunities for religion to be present and to 
     flourish. As shown by the recent ruling in City of Boerne v. 
     Flores, Archbishop \37\ even a church's ability to have room 
     to seat its worshippers is subjected to government control. 
     This was never the intention of our Founding Fathers.
       The RFA's preamble stresses our shared belief that 
     government should accommodate and protect religious freedom, 
     but it simultaneously stresses that government should not and 
     must not dictate in regard to religion. By concluding with 
     the safeguard of ``according to the dictates of conscience,'' 
     the preamble assures that as it protects religious expression 
     in public places, it nevertheless cannot be used to dictate 
     expression or non-expression of beliefs, nor can it be used 
     to favor one religious faith over another.
       Protecting religious expression: ``Neither the United 
     States nor any State shall establish any official religion, 
     but the people's right to pray and to recognize their 
     religious beliefs, heritage or traditions on public property, 
     including schools, shall not be infringed. . . .''


                        Never an Official Church

       This phrase draws a clear boundary beyond which government 
     cannot go. No public property occasion which recognizes 
     religious beliefs, heritage or tradition, and no such 
     exercise of the right to pray shall rise to the level of 
     denoting any religion as official. This follows the intent of 
     the drafters of the First Amendment, as understood by now-
     Chief Justice William Rehnquist and related in his opinion 
     in Wallace v. Jaffree:
       ``The evil to be aimed at, so far as [its drafters] were 
     concerned, appears to have been the establishment of a 
     national church, and perhaps the preference of one religious 
     sect over another, but it was definitely not concern about 
     whether the Government might aid all religions 
     evenhandedly.'' \38\
       Government should accommodate America's faiths, and the 
     emphasis they have always received in this nation's life, but 
     should not be promoting any one faith in particular. For 
     example, the RFA would not permit government to proclaim 
     officially that the United States is a ``Christian nation'', 
     nor a ``Jewish nation,'' ``Muslim nation,'' nor that of any 
     other particular faith. But the supposed accommodation under 
     current rulings is typically a pretense, the functional 
     equivalent of no accommodation at all.
       The proper standard of accommodation was described by then-
     Chief Justice Warren Burger, in his dissent to Wallace v. 
     Jaffree, 472 U.S. 38, at 90:
       ``The statute [permitting a moment of silence, and thus 
     silent prayer, in Alabama's public schools] ``endorses'' only 
     the view that the religious observances of others should be 
     tolerated and, where possible, accommodated. If the 
     government may not accommodate religious needs when it does 
     so in a wholly neutral and noncoercive manner, the 
     ``benevolent neutrality'' that we have long considered the 
     correct constitutional standard will quickly translate into 
     the ``callous indifference'' that the Court has consistently 
     held the Establishment Clause does not require.
       ``The Court today has ignored the wise admonition of 
     Justice Goldberg that ``the measure of constitutional 
     adjudication is the ability and willingness to distinguish 
     between real threat and mere shadow.''
       The language to permit religious expression on public 
     property is the first corrective segment of the RFA; the 
     second is the portion dealing with non-discrimination.
       The text of the RFA uses the two-part structure employed by 
     the First Amendment, intended to balance freedom from state-
     imposed religion (via the so-called Establishment Clause, 
     ``Congress shall make no law respecting an establishment of 
     religion . . .'') with freedom of religion (via the so-called 
     Free Exercise Clause, ``or prohibiting the free exercise 
     thereof''). The RFA likewise echoes the prohibition on an 
     official religion, then follows it with language clearly 
     indicating that the intent is not to restrict religion, but 
     to maximize it. The RFA's terms are necessarily more explicit 
     than the First Amendment, as a necessity to correct court 
     rulings of recent years.
       The RFA reflects former Chief Justice Warren Burger's 
     comments about how government should accommodate expressions 
     of religious tradition, heritage and belief. As he wrote in 
     Lynch v. Donnelly, 465 U.S. 668, at 675 (1984) (and before 
     Lynch was undercut by a later 5-4 ruling):
       ``[t]here is an unbroken history of official acknowledgment 
     by all three branches of government of the role of religion 
     in American life from at least 1789'' and that there are 
     ``countless . . . illustrations of the Government's 
     acknowledgment of our religious heritage and governmental 
     sponsorship of graphic manifestations of that heritage.'' 
     These included, in part:
       ``--invocations of Divine guidance in deliberations and 
     pronouncements of the Founding Fathers and contemporary 
     leaders;
       ``--George Washington's designation of a religiously-toned 
     Thanksgiving, which 80 years later was made a national 
     holiday;
       ``--the designation of Christmas as a national holiday and 
     the grant of paid leave to public employees on that day;
       ``--Presidential proclamations commemorating other 
     religious events, such as the Jewish High Holy Days;
       ``--Usage of ``In God We Trust'' as a national motto, and 
     on coins and currency;
       ``--Display of religious paintings in publicly-supported 
     art galleries [to which he could have added the religious 
     overtones of many of the depictions in Statuary Hall in the 
     U.S. Capitol itself].''


                        Who Are ``The People''?

       The word ``people'' was purposefully chosen rather than 
     specifying simply ``a person's right'' or ``every person's 
     right'' to pray, and to recognize religious tradition, 
     heritage or belief. In speaking of ``the people's right'', 
     the RFA embodies ``people'' in both the individual and the 
     collective meaning of the word. This is consistent with the 
     dual usage already employed by Constitutional references to 
     ``the people.''
       In its Preamble, the Constitution opens with ``We the 
     People'', thus referring to the collective conduct of the 
     American people acting to create their government.
       The First Amendment uses an obviously collective sense of 
     ``people'' when it proclaims ``the right of the people 
     peaceably to assemble, and to petition the government for a 
     redress of grievances.''
       The Fourth Amendment employs it to indicate individual 
     rights in protecting ``The right of the people to be secure 
     in their persons, houses, papers, and effects, against 
     unreasonable searches and seizures.''
       The Ninth and Tenth Amendments make obvious reference to 
     the collective rights of the people, using their 
     instrumentality of government, in specifying that ``The 
     enumeration in the Constitution, of certain rights, shall not 
     be construed to deny or disparage others retained by the 
     people.'' and that ``The powers not delegated to the United 
     States by the Constitution, nor prohibited by it to the 
     states, are reserved to the states respectively, or to the 
     people.''


                        Protecting Key Decisions

       The RFA is also intended to preserve and protect the 
     precedential value of Supreme Court decisions favorable to 
     religious freedom and to even-handed treatment of religion, 
     namely Marsh v. Chambers, 463 U.S. 783 (1983) and 
     Rosenberger v. Rector and Visitors of the University of 
     Virginia, 115 S. Ct. 2510 (1995). Without the RFA, the 
     future of these precedents is problematical, because they 
     are isolated exceptions to the trends of the Supreme Court 
     in other religious freedom cases. Their viability and 
     precedential value is subject to sudden change by the 
     Court, absent the RFA.
       The RFA also cements the precedent of another series of 
     Supreme Court decisions, relating to government providing of 
     benefits to students who are in parochial schools. That 
     ruling, in the 5-to-4 decision in Agostini v. Felton, is 
     discussed as part of the ``benefits'' clause of the RFA, 
     later in this document.
       Marsh v. Chambers, 463 U.S. 783 (1983), by 6-to-3 upheld 
     the constitutionality of prayers by a government-paid 
     chaplain, at the opening of legislative sessions.\39\ 
     Rosenberger by a 5-to-4 Court margin directed that when a 
     public university funded other student publications, it could 
     not refuse to assist one with a Christian association.
       These decisions in Marsh v. Chambers and Rosenberger v. 
     Rector are protected by the Religious Freedom Amendment, 
     guarding them from the vagaries of back-and-forth shifting 
     margins on the Supreme Court.


                    Protecting Rights of the People

       H.J. Res. 78 does not seek to protect religious rights 
     simply by restricting the power of government; it also 
     proclaims an affirmative right of the people themselves. The 
     Bill of Rights and other Constitutional amendments have 
     likewise used both approaches to establish and protect rights 
     of the people.\40\ The Religious Freedom Amendment expressly 
     declares the rights of the people, to make its intent clearer 
     to the courts. (But, as previously noted, the absolutist 
     statement of an affirmative right does not impede reasonable 
     requirements for the time, place and manner of speech. For 
     example, the RFA does not give a student any right to disrupt 
     class by spontaneously offering a prayer, just as the First 
     Amendment does not give them any right to disrupt class by 
     spontaneously launching into any other form of speech.)
       ``Public property'' as used in the RFA is synonymous with 
     ``government property'', but is not limited to real estate. 
     In a proper case, it can for example address public property 
     such as a city seal which contains a depiction of a 
     community's heritage, traditions or beliefs. Thus, the 
     limiting test is to assure that any role of government does 
     not go beyond recognizing religious belief, heritage or 
     tradition, and avoids becoming the promoting of any religion. 
     The RFA does not repeal the Establishment Clause of the First 
     Amendment, but interacts with it, restoring the former 
     balance between the Establishment Clause and the Free 
     Exercise Clause. Use of public property to go beyond the 
     Equal Access Act, to go beyond recognition and into promotion 
     of a religion would continue to run afoul of the 
     Establishment Clause of the First Amendment.
       Protecting individual conscience and minorities: ``. . . 
     Neither the United States nor

[[Page H2410]]

     any State shall require any person to join in prayer or other 
     religious activity, [or] prescribe school prayers . . .''
       The RFA does contain any language to overturn the First 
     Amendment's prohibition on establishing an official religion, 
     neither expressly nor impliedly. Nevertheless, it contains 
     protective language as an extra safeguard to assure this. The 
     RFA echoes the pattern of the First Amendment, with both a 
     prohibition on establishing an official church, coupled with 
     guarantees intended to assure maximum religious liberty.
       No school prayer (nor any religious activity) could ever be 
     mandatory; the RFA explicitly makes this clear. It 
     demonstrates an abundance of caution and concern for 
     religious freedom for all, in particular for any who may be 
     in a minority in their area. It does not permit a large group 
     to muzzle or suppress a small group; it does not permit a 
     small group to muzzle or censor a large group. Nor does it 
     permit anyone to compel prayer or other religious conduct by 
     those who do not wish to participate.
       Neither the federal nor state government could prescribe 
     prayer. This covers both principal definitions of 
     ``prescribe''. It could not ``prescribe'' prayers, in the 
     sense that it could not direct that they occur; under the 
     RFA, that initiative properly comes from students. Nor could 
     government ``prescribe'' prayer, in the sense that it could 
     not dictate the content of prayer.
       This language reinforces the ``according to the dictates of 
     conscience'' protection of the RFA's preamble.
       The RFA effectively endorses and follows the standard 
     applied by the Supreme Court in West Virginia State Board of 
     Education v. Barnette.\41\ There, the Court correctly ruled 
     that no child could or should be compelled to say the Pledge 
     of Allegiance. However, the Court did not create a right for 
     an objecting student to prohibit their classmates from saying 
     the Pledge.
       Providing equal protection: ``. . . [Neither the United 
     States nor any State shall] . . . discriminate against 
     religion, or deny equal access to a benefit on account of 
     religion.''


                 Ending Discrimination Against Religion

       Religious symbols and religious behavior are treated by 
     current court decisions as being automatically suspect when 
     they occur on public property, or in association with a 
     government activity or program.\42\ But unlike the standard 
     on religion, secular symbols, behavior, or activity are not 
     pre-burdened. This discriminatory dual standard is prohibited 
     by the RFA. The amendment does not prohibit positive 
     accommodation of religion, such as non-profit tax treatment, 
     but focuses instead to bar discrimination against religion.
       The Congressional Research Service reported recently on 30 
     instances of federal statutes and regulations which assure 
     that government does not subsidize religious practices of 
     receiving organizations. But CRS also found an additional 51 
     federal statutes and regulations which disqualify religious 
     organizations or adherents from neutral participation in 
     generalized government programs.\43\ This discrimination 
     needs correction.
       There is a growing recognition that faith-based programs 
     can succeed, winning results even when other programs cannot, 
     to combat crime and violence, teen pregnancy, welfare 
     dependency, recidivism, and other social problems. To 
     disqualify them because of their religious component not only 
     violates the notion of neutrality, but denies assistance to a 
     great many Americans.


      Neutrality Regarding Benefits-Protecting Fragile Precedents

       The ``benefits'' provision of the RFA reflects and protects 
     (among other policy decisions) two recent Supreme Court 
     decisions. Both were decided by 5-4 margins, in an area where 
     the Court still shifts back-and-forth, unless the RFA 
     provides an anchor to preserve these fragile rulings.
       The first of these protected holdings is Rosenberger v. 
     Rector and Visitors of the University of Virginia, 115 S.Ct. 
     2510 (1995), holding it impermissible viewpoint 
     discrimination to exclude student religious publications from 
     the University's general subsidy of student publications. The 
     Court concluded that free speech itself was threatened if 
     religious speech were singled out for different treatment:
       ``The governmental program at issue is neutral toward 
     religion. Such neutrality is a significant factor in 
     upholding programs in the face of Establishment Clause 
     attack, and the guarantee of neutrality is not offended 
     where, as here, the government follows neutral criteria and 
     even-handed policies to extend benefits to recipients whose 
     ideologies and viewpoints, including religious ones, are 
     broad and diverse.''
       The RFA also reflects the philosophy embodied--by a bare 
     margin--in Agostini v. Felton, No. 96-552 (June 23, 1997). 
     Agostini by 5-4 reversed a prior ruling on the same issue (a 
     ruling in Aguilar v. Felton, 473 U.S. 402 (1985)), which 
     likewise was decided by 5-4). The Court justified the 
     reversal because the Court had also reversed two prior 
     opinions on crucial points. Those cases likewise turned on 
     margins of 5-4 in one instance \44\ and also 5-4 in the 
     other! \45\ What the Court gives, the Court can take away 
     tomorrow, especially on 5-4 decisions! The RFA protects these 
     important decisions from such judicial schizophrenia.
       In Agostini v. Felton, the Supreme Court ruled that New 
     York City may use federal Title I funds to provide special 
     teachers on the premises of parochial schools, to give 
     supplemental and remedial instruction to disadvantaged 
     children.\46\
       The Court opined that there were sufficient safeguards to 
     assure that sectarian schools would not have a profit motive 
     to provide religious instruction. It added:
       ``First, the Court has abandoned Ball's presumption that 
     public employees placed on parochial school grounds will 
     inevitably inculcate religion or that their presence 
     constitutes a symbolic union between government and religion. 
     Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 12-
     13. No evidence has ever shown that any New York City 
     instructor teaching on parochial school premises attempted to 
     inculcate religion in students. Second, the Court has 
     departed from Ball's rule that all government aid that 
     directly aids the educational function of religious schools 
     is invalid. Other Establishment Clause cases before and since 
     have examined the criteria by which an aid program identifies 
     its beneficiaries to determine whether the criteria 
     themselves have the effect of advancing religion by creating 
     a financial incentive to undertake religious indoctrination. 
     Cf. e.g., Witters, supra, at 488; Zobrest, supra, at 10. Such 
     an incentive is not present where, as here, the aid is 
     allocated on the basis of neutral, secular criteria that 
     neither favor nor disfavor religion, and is made available to 
     both religious and secular beneficiaries on a 
     nondiscriminatory basis.''


       Neutrality Regarding Benefits-Protecting Current Policies

       In addition to the Supreme Court precedents of Rosenberger 
     and of Agostini, the ``benefits'' provision of the RFA 
     protects other current policy. For example, the RFA's 
     ``benefits'' provision protects these existing programs: Over 
     a billion dollars each year in federal grants goes to 
     Catholic Charities USA for various social services, ranging 
     from shelters for the homeless, to aid to refugees and to 
     unwed mothers. Over a billion dollars each year is spent on 
     GI Bill education benefits, over $7-billion to federal Pell 
     Grants to students, $23-billion a year in federally-
     guaranteed student loans, and $17-billion a year in direct 
     lending to students, all of which may be used at private and 
     church schools, as well as at public schools.
       The RFA does not permit any appropriation or other funding 
     for religious activities. Government funding for a religious 
     purpose would still be banned by the prohibition on official 
     religion found both in the First Amendment and in the RFA. 
     However, once a government program was established, to 
     accomplish a governmental purpose, participants could not be 
     disqualified on the basis of religion or religious 
     affiliation.
       Other illustrations of the current problem (and the not-
     clearly-settled law in light of 5-4 Supreme Court rulings):
       --Although the case was ultimately settled, the Federal 
     Communications Commission denied a federal grant to Fordham 
     University, because its campus station included a religious 
     program on Sunday mornings. The federal district court \47\ 
     sided with the FCC that Fordham was disqualified by supposed 
     church-state considerations. The RFA will prevent such 
     injustices in the future.
       --Provisions of state constitutions have been used to deny 
     using general benefit programs when there was any connection 
     with a religious institution. Again, the RFA will rectify 
     this, because it applies at both the federal and the state 
     levels.\48\
       --After the Oklahoma City bombing, it was reported that HUD 
     attorneys almost denied nearby churches the ability to 
     receive bombing repair money, on the same basis as other 
     damaged property, because of ``separation of church and 
     state'' concerns. Again, the RFA protects the ability to 
     participate on an equal and non-discriminatory basis.
       The ``benefits'' language does not guarantee any benefit to 
     any person or group. Instead, it assures ``equal access'' if 
     and when some benefit is made available for a permitted 
     governmental purpose. For example, the RFA does not create a 
     program of vouchers for education. If and when a unit of 
     government chose to create them, however, the RFA would 
     simply assure that all individuals and private entities are 
     afforded equal access to them. This is the identical standard 
     already utilized in federal student loan programs and the G-I 
     Bill.
       Private institutions, including those affiliated with 
     churches, should be permitted to participate under the same 
     standards as public institutions. For example, neither the 
     University of Notre Dame nor Boston College are disqualified 
     from federal education programs for being Catholic, nor is 
     any other school disqualified on the basis of religion. This 
     is a proper standard which has proven workable, which should 
     be applied uniformly, and which should be protected from the 
     uncertainty of the Supreme Court rulings in this area.


                               Conclusion

       Rather than promoting understanding, recent decades of 
     current Supreme Court decisions have promoted the opposite. A 
     correct standard of tolerance would accept the benefits of 
     listening respectfully to other views, rather than using the 
     courts to silence them.
       As four current Supreme Court justices have expressed: \49\
       ``. . . nothing, absolutely nothing, is so inclined to 
     foster among religious believers of various faiths a 
     toleration--no, an affection--for one another than 
     voluntarily joining in prayer together, to the God whom they 
     all worship and seek. Needless to say, no one should be 
     compelled to do that, but it

[[Page H2411]]

     is a shame to deprive our public culture of the opportunity, 
     and indeed the encouragement, for people to do it 
     voluntarily. The Baptist or Catholic who heard and joined in 
     the simple and inspiring prayers of Rabbi Gutterman on this 
     occasion was inoculated from religious bigotry and prejudice 
     in a manner that cannot be replicated. To deprive our society 
     of that important unifying mechanism, in order to spare the 
     nonbeliever what seems to me the minimal inconvenience of 
     standing or even sitting in respectful nonparticipation, is 
     as senseless in policy as it is unsupportable in law.''
       The wayward state of Supreme Court decisions has been 
     decried by Chief Justice Rehnquist:
       ``George Washington himself, at the request of the very 
     Congress which passed the Bill of Rights, proclaimed a day of 
     ``public thanksgiving and prayer, to be observed by 
     acknowledging with grateful hearts the many and signal favors 
     of Almighty God.'' History must judge whether it was the 
     father of his country in 1789, or a majority of the Court 
     today, which has strayed from the meaning of the 
     Establishment Clause.'' \50\
       The American people have never accepted the Supreme Court's 
     extra burdens levied against school prayer and against 
     religious freedoms during the past 36 years. It has been 27 
     years since this House has acted upon the necessary 
     constitutional amendment to correct this, and the time to 
     remedy that is now. The Religious Freedom Amendment should be 
     adopted.


                                APPENDIX

     References to God in State Constitutions & Preambles
       Alabama--``invoking the favor and guidance of Almighty 
     God''
       Alaska--``grateful to God and to those who founded our 
     nation . . . in order to secure and transmit succeeding 
     generations our heritage of political, civil, and religious 
     liberty''
       Arizona--``grateful to Almighty God for our liberties''
       Arkansas--``grateful to Almighty God for the privilege of 
     choosing our own form of government, for our civil and 
     religious liberty''
       California--``grateful to Almighty God for our freedom''
       Colorado--``with profound reverence for the Supreme Ruler 
     of the Universe''
       Connecticut--``acknowledge with gratitude, the good 
     providence of God''
       Delaware--``Through Divine goodness, all men have by nature 
     the rights of worshipping and serving their Creator according 
     to the dictates of their own conscience.''
       Florida--``being grateful to Almighty God for our 
     constitutional liberty''
       Georgia--``relying upon the protections and guidance of 
     Almighty God''
       Hawaii--``grateful for Divine Guidance''
       Idaho--``grateful to Almighty God for our freedom''
       Illinois--``grateful to Almighty God for the civil, 
     political and religious liberty which He has permitted us to 
     enjoy and seeking His blessing upon our endeavors''
       Indiana--``grateful to Almighty God for the free exercise 
     of the right to choose our own government''
       Iowa--``grateful to the Supreme Being for the blessings 
     hitherto enjoyed, and feeling our dependence on Him for a 
     continuation of those blessings''
       Kansas--``grateful to Almighty God for our civic and 
     religious privileges''
       Kentucky--``grateful to Almighty God for the civil, 
     political, and religious liberties we enjoy''
       Louisiana--``grateful to Almighty God for the civil, 
     political, economic, and religious liberties we enjoy''
       Maine--``acknowledging with grateful hearts the goodness of 
     the Sovereign Ruler of the universe in affording us an 
     opportunity, so favorable to the design; and imploring God's 
     aid and direction in its accomplishments, do agree''
       Maryland--``grateful to Almighty God for our civil and 
     religious liberty''
       Massachusetts--``acknowledging with grateful hearts, the 
     goodness of the great Legislator of the Universe, in 
     affording us, in the course of His providence, and 
     opportunity''
       Michigan--``grateful to Almighty God for the blessings of 
     freedom''
       Minnesota--``grateful to God for our civil and religious 
     liberty''
       Mississippi--``grateful to Almighty God, and invoking 
     blessings of freedom''
       Missouri--``with profound reverence for the Supreme Ruler 
     of the Universe, and grateful for His goodness''
       Montana--``grateful to Almighty God for the blessings of 
     liberty''
       Nebraska--``grateful to Almighty God for our freedom''
       Nevada--``Grateful to Almighty God for our freedom in order 
     to secure its blessings''
       New Hampshire--``unalienable right to worship God according 
     to the dictates of conscience''
       New Jersey--``grateful to Almighty God for the civil and 
     religious liberty which He hath so long permitted us to 
     enjoy, and looking to Him for a blessing upon our endeavors 
     to secure . . .''
       New Mexico--``grateful to Almighty God for the blessings of 
     liberty''
       New York--``grateful to Almighty God for our Freedom''
       North Carolina--``grateful to Almighty God, the Sovereign 
     Ruler of Nations''
       North Dakota--``grateful to Almighty God for the blessings 
     of civil and religious liberty''
       Ohio--``grateful to Almighty God for our freedom''
       Oklahoma--``Invoking the guidance of Almighty God''
       Oregon--``to worship Almighty God''
       Pennsylvania--``grateful to Almighty God for the blessings 
     of civil and religious liberty, and humbly invoking His 
     guidance''
       Rhode Island--``grateful to Almighty God for the civil and 
     religious liberty which He hath so long permitted us to 
     enjoy, and looking to Him for a blessing upon our endeavors''
       South Carolina--``grateful to God for our liberties''
       South Dakota--``grateful to Almighty God for our civil and 
     religious liberties''
       Texas--``Humbly invoking the blessings of Almighty God''
       Tennessee--``to worship Almighty God''
       Utah--``Grateful to Almighty God for life and liberty''
       Washington--``grateful to the Supreme Ruler of the Universe 
     for our liberties''
       West Virginia--``Since through Divine Providence we enjoy 
     the blessings of civil, political and religious liberty . . . 
     reaffirm our faith in and constant reliance upon God . . .''
       Wisconsin--``grateful to Almighty God for our freedom''
       Wyoming--``grateful to God for our civil, political, and 
     religious liberties''
       Vermont--``to worship Almighty God''
       Virginia--``. . . duty which we owe to our Creator . . . 
     mutual duty of all to practice Christian forbearance, love, 
     and charity''


                               footnotes

     \1\ Although the Judiciary Committee in 1971 refused to 
     report any of several proposed prayer amendments, a discharge 
     petition sponsored by Ohio Rep. Wylie successfully compelled 
     a floor vote. Thereafter, on November 8, 1971, the language 
     voted upon read, ``Nothing contained in this Constitution 
     shall abridge the right of persons lawfully assembled, in any 
     public building which is supported in whole or in part 
     through the expenditure of public funds, to participate in 
     voluntary prayer or meditation.'' The vote was 240-162, 
     falling 28 votes short of the necessary two-thirds majority 
     needed, of the 402 House Members who voted.
     \2\ Sen. Dirksen of Illinois led the effort which promoted 
     this language, ``Nothing contained in this Constitution shall 
     prohibit the authority administering any school, school 
     system, educational institution or other public building 
     supported in whole or in part through the expenditure of 
     public funds from providing for or permitting the voluntary 
     participation by students or others in prayer. Nothing 
     contained in this article shall authorize any such authority 
     to prescribe the form or content of any prayer.'' A vote on 
     September 19, 1966, resulted in a 51-36 favorable vote to 
     substitute this for other text, but the final vote of 49-37 
     was nine votes short of the two-thirds needed.
     \3\ During floor action on the proposed Equal Rights 
     Amendment, Sen. Baker of Tennessee proposed adding this text 
     to the ERA, ``Nothing contained in this Constitution shall 
     abridge the right of persons lawfully assembled, in any 
     public building which is supported in whole or in part 
     through the expenditure of public funds, to participate in 
     nondenominational prayer.'' By 50-20, the text was added to 
     the then-pending ERA. However, this plus another successful 
     amendment, to exempt women from the military draft, were seen 
     more as anti-ERA maneuvers than anything else, and final 
     passage of the ERA (with this language added) was blocked at 
     that time.
     \4\ A Reagan Administration initiative, S.J. Res. 73, was 
     revised in committee to read, ``Nothing in this Constitution 
     shall be construed to prohibit individual or group prayer in 
     public schools or other public institutions. No person shall 
     be required by the United States or by any state to 
     participate in prayer. Neither the United States nor any 
     state shall compose the words of any prayer to be said in 
     public schools.'' On March 20, 1984, the vote on this 
     language was 56-44, falling 11 votes shy of the two-thirds 
     needed.
     \5\ ``School Prayer: The Congressional Response, 1962-1996'', 
     by David M. Ackerman, Legislative Attorney, American Law 
     Division, October 16, 1996.
     \6\ This differs slightly from the language of H.J. Res. 78 
     as originally introduced. As introduced, the RFA read as 
     follows:
     ``To secure the people's right to acknowledge God according 
     to the dictates of conscience: The people's right to pray and 
     to recognize their religious beliefs, heritage or traditions 
     on public property, including schools, shall not be 
     infringed. The government shall not require any person to 
     join in prayer or other religious activity, initiate or 
     designate school prayers, discriminate against religion, or 
     deny equal access to a benefit on account of religion.''
     \7\ Excerpted from Chief Justice Rehnquist's dissent in 
     Wallace v. Jaffree, 472 U.S. 38 (1985).
     \8\ For example: Government runs most schools, with laws to 
     compel attendance, and requires taxes to support those 
     schools, even from those who pay to send their children to 
     private schools. Charitable works, once the primary domain of 
     the religious sector, now are dominated by government 
     programs. The largest portion of American health care is paid 
     in some way by a unit of government. Government runs most of 
     the public welfare system, and massive quantities of public 
     housing.
     \9\ Rehnquist commented at great length in his dissent to the 
     graduation prayer case of Wallace v. Jaffree, 472 U.S. 38 
     (1985):
     ``Thirty-eight years ago this Court, in Everson v. Board of 
     Education, 330 U.S. 1, 16 (1947) summarized its exegesis of 
     Establishment Clause doctrine thus: `In the words of 
     Jefferson, the clause against establishment of religion by 
     law was intended to erect `a wall of separation between 
     church and State.' Reynolds v. United States, [98 U.S. 145, 
     164 (1879)].'
     ``This language from Reynolds, a case involving the Free 
     Exercise Clause of the First Amendment rather than the 
     Establishment Clause, quotes from Thomas Jefferson's letter 
     to the Danbury Baptist Association the phrase `I contemplate 
     with sovereign reverence that act of the whole American 
     people which declared that their legislature should `make no 
     law respecting an establishment of religion, or prohibiting 
     the free exercise thereof,' thus building a wall of 
     separation between church and State.' 8 Writings of Thomas 
     Jefferson 113 (H. Washington ed. 1861).
     ``It is impossible to build sound constitutional doctrine 
     upon a mistaken understanding of constitutional history, but 
     unfortunately the Establishment Clause has been expressly 
     freighted with Jefferson's misleading metaphor for nearly 
     forty years. Thomas

[[Page H2412]]

     Jefferson was of course in France at the time the 
     constitutional amendments known as the Bill of Rights were 
     passed by Congress and ratified by the states. His letter to 
     the Danbury Baptist Association was a short note of courtesy, 
     written fourteen years after the amendments were passed by 
     Congress. He would seem to any detached observer as a less 
     than ideal source of contemporary history as to the meaning 
     of the Religions Clauses of the First Amendment.''
     Chief Justice Rehnquist thereafter presents a detailed 
     account of the actual history of the development of the First 
     Amendment's language on religious freedom.
     \10\ Although it is the most-often used, this is not the only 
     catch-phrase that is used to mislead in debate on these 
     issues. The terms of ``state-sponsored'' prayer, and of 
     ``captive audience'' are also misused often.
     The term ``state-sponsored'' prayer is invoked to include 
     situations when a school or government official simply 
     permits prayer to occur, even when student-initiated. Thus, 
     in the 1997 Alabama federal court ruling, Chandler v. James, 
     CV-96-D-169-N (Middle District of Alabama), U.S. District 
     Judge Ira Dement (at pages 7 & 8) permanently enjoined the 
     schools from ``permitting prayers, Biblical and scriptural 
     readings, and other presentations or activities of a 
     religious nature, at all school-sponsored or school-initiated 
     assemblies and events (including, but not limited to, 
     sporting events), regardless of whether the activity takes 
     place during instructional time, regardless of whether 
     attendance is compulsory or noncompulsory, and regardless of 
     whether the speaker/presenter is a student, school official, 
     or nonschool person.''
     The ``captive audience'' notion is never used to express 
     concern for the majority of students, who are required to be 
     in school, yet required to leave their normal religious 
     expressions behind while they are there--which is the largest 
     segment of their waking day. As Justice Potter Stewart noted 
     in his dissent in Abington v. Schemp, ``a compulsory state 
     educational system so structures a child's life that if 
     religious exercises are held to be an impermissible activity 
     in schools, religion is placed at an artificial and state-
     created disadvantage. Viewed in this light, permission of 
     such exercises for those who want them is necessary if the 
     schools are truly to be neutral in the matter of religion.''
     \11\ Engel v. Vitale, 370 U.S. 421 (1962).
     \12\ The pertinent portion of Engel stated, ``Neither the 
     fact that the prayer may be denominationally neutral nor the 
     fact that its observance on the part of the students is 
     voluntary can serve to free it from the limitations of the 
     Establishment Clause, as it might from the Free Exercise 
     Clause, of the First Amendment, both of which are operative 
     against the States by virtue of the Fourteenth Amendment.'' 
     To this Justice Stewart wrote in dissent, ``With all respect, 
     I think the Court has misapplied a great constitutional 
     principle. I cannot see how an ``official religion'' is 
     established by letting those who want to say a prayer say it. 
     On the contrary, I think that to deny the wish of these 
     school children to join in reciting this prayer is to deny 
     them the opportunity of sharing in the spiritual heritage of 
     our Nation.''
     \13\ Abington School District v. Schemp, 374 U.S. 203 (1963).
     \14\ Wallace v. Jaffree, 472 U.S. 38 (1985).
     \15\ at 505 U.S. 632.
     \16\ at 505 U.S. 635-636.
     \17\ Stone v. Graham, 449 U.S. 39 (1980).
     \18\ at 449 U.S. 42.
     \19\ at 449 U.S. 45-46.
     \20\ McCollum v. Board of Education, 333 U.S. 203 (1948).
     \21\ Lemon v. Kurtzman, 402 U.S. 603 (1971).
     \22\ County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 
     492 U.S. 573 (1989).
     \23\ Lynch v. Donnelly, 465 U.S. 668 (1984).
     \24\ In R.A.V., Petitioner v. City of St. Paul, Minnesota, 
     505 U.S. 377 (1992), the Supreme Court held that a ``hate 
     crimes'' law banning cross-burnings and Nazi swastikas was 
     unconstitutional on its face. In National Socialist Party v. 
     Skokie, 432 U.S. 43 (1977), the Court upheld the right of 
     neo-Nazis to parade with swastikas and anti-Semitic 
     literature through the midst of a predominantly Jewish 
     community.
     \25\ Justice Potter Stewart's dissenting comments in Abington 
     v. Schemp provide an apt description of true neutrality, in 
     contrast with the antagonism that can masquerade as 
     neutrality. As he wrote, ``It might also be argued that 
     parents who want their children exposed to religious 
     influences can adequately fulfill that wish off school 
     property and outside school time. With all its surface 
     persuasiveness, however, this argument seriously misconceives 
     the basic constitutional justification for permitting the 
     exercises at issue in these cases. For a compulsory state 
     educational system so structures a child's life that if 
     religious exercises are held to be an impermissible activity 
     in schools, religion is placed at an artificial and state-
     created disadvantage. Viewed in this light, permission of 
     such exercises for those who want them is necessary if the 
     schools are truly to be neutral in the matter of religion.''
     \26\ Story, Joseph, Commentaries on the Constitution of the 
     United States (1833), Sec. 462.
     \27\ In testimony given in 1997 by Rep. Istook regarding the 
     RFA, it was indicated that five states lacked a reference to 
     God in their state constitutions. This was inaccurate. 
     Corrective research indicates that the five `missing' 
     states--New Hampshire, Oregon, Tennessee, Vermont and 
     Virginia, in fact do refer expressly to God in their state 
     constitutions.
     \28\ Just as litigation is pending on many other fronts, 
     challenging prayers at schools, graduations, football games, 
     etc., it is also happening over the Ohio motto. Ohio is being 
     sued to block any further use of this motto.
     \29\ Sherbert v. Verner, 374 U.S. 398 (1963)
     \30\ Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) holding it 
     is not protected to advocate ``imminent lawless action if 
     likely to incite or produce such action''. See also 18 United 
     States Code, Sec. 2385, being the criminal code's prohibition 
     of advocating violent overthrow of the government and related 
     offenses.
     \31\ Reynolds v. United States, 98 U.S. 154 (1878)
     \32\ Olsen v. Drug Enforcement Administration, 878 F.2d 1458 
     (D.C. Cir. 1989), cert. den., 494 U.S. 906 (1990); United 
     States v. Rush, 738 F.2d 457 (1st Cir. 1984), cert. den., 470 
     U.S. 1004 (1985); and United States v. Middleton, 690 F.2d 
     820 (11th Cir. 1982), cert. den., 460 U.S. 1051 (1983).
     \33\ Tracy v. Hahn, 940 F.2d 1536 (9th Cir. 1991).
     \34\ Pack v. Tennessee, 527 S.W. 2d 99 (Tenn. 1975), cert. 
     den., 424 U.S. 954 (1976).
     \35\ Schenck v. United States, 249 U.S. 47, 52 (1919), 
     wherein Justice Holmes wrote, ``The most stringent protection 
     of free speech would not protect a man in falsely shouting 
     fire in a theater and causing a panic.''
     \36\ New York Times v. Sullivan, 376 U.S. 254, 279-280 
     (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
     \37\ City of Boerne v. Flores, Archbishop, 521 U.S. ------, 
     1997 WL 345322, June 25, 1997.
     \38\ Wallace v. Jaffree, 472 U.S. 38 (1985).
     \39\ A similar standard was enunciated in dissent by Justice 
     Potter Stewart in Engel v. Vitale, who wrote that school 
     prayer was not an ``official religion,'' but simply an effort 
     ``. . . to recognize and to follow the deeply entrenched and 
     highly cherished spiritual traditions of our Nation--
     traditions which come down to us from those who almost two 
     hundred years ago.'' Justice Stewart then elaborated with 
     numerous references to the statements and conduct of the 
     Founding Fathers.
     \40\ The First Amendment prohibits Congress from making any 
     law ``respecting an establishment of religion, or prohibiting 
     the free exercise thereof; or abridging the freedom of 
     speech,'' etc. The Second Amendment says the affirmative 
     right ``of the people to keep and bear arms shall not be 
     infringed.'' The Fourth Amendment sets forth ``the right of 
     the people'' against unreasonable searches and seizures, and 
     then limits the government's ability to issue warrants, 
     except for probable cause. The Fourteenth Amendment gives 
     citizenship to all persons born or naturalized in the U.S., 
     then restricts the states with equal protection and due 
     process requirements. These and other examples illustrate the 
     duality of protections, both by establishing affirmative 
     rights of the people, and by restrictions upon the conduct of 
     government.
     \41\ West Virginia State Board of Education v. Barnette, 319 
     U.S. 624 (1943)
     \42\ There is also lack of balance regarding which symbols 
     are treated as suspect. Typically, only symbols of a majority 
     faith, such as a Christian cross, are ordered to be removed. 
     Yet many other emblems are used as symbols of different 
     faiths. The thirteen stars on the Great Seal of the United 
     States remain arranged as a Star of David, a symbol of the 
     Jewish faith. Banning all symbols of a religion also becomes 
     problematic because they are so numerous, and often are also 
     used for other purposes. The swastika is a condemned symbol 
     of Nazism to most, but also is a sacred symbol for many 
     Hindus. A hammer is a symbol of Norse mythology, and small 
     hammers were often worn on necklaces, akin to the practice of 
     Christians wearing a cross pendant. Kites have religious 
     symbology in Japan. Beetles (scarabs) are religious symbols 
     for Egyptian sun worship. A spokesman for Americans United 
     for Separation of Church and State has even mentioned 
     (although perhaps not seriously) banning witches from school 
     Halloween displays, because of possible religious 
     significance.
     \43\ March 18, 1996, report from American Law Division, 
     Congressional Research Service.
     \44\ Zobrest v. Catalina Foothills School District, 509 U.S. 
     1 (1993), holding that providing a sign-language interpreter 
     for parochial school students was not a First Amendment 
     violation. As noted in Agostini v. Felton, the Supreme Court 
     in Zobrest ``abandoned Ball's presumption that public 
     employees placed on parochial school grounds will inevitably 
     inculcate religion or that their presence constitutes a 
     symbolic union between government and religion.''
     \45\ School District of the City of Grand Rapids v. Ball, 473 
     U.S. 373 (1985) had held it unconstitutional for a public 
     school district to provide special supplemental classes at 
     public expense to students located at places leased from 
     private religious schools. It was not a ``pure'' 5-4 
     decision, in the sense that some justices concurred in part 
     while dissenting in part. One key part of Bell was later 
     reversed in the Zobrest case, once again by a 5-4 ruling. 
     Another part of the 5-4 ruling of Bell was later reversed by 
     the Court in Witters v. Washington Dept. of Services for the 
     Blind, 474 U.S. 481.
     \46\ Despite discussing other grounds as dispositive, the 
     Agostini decision was clearly motivated by a desire to permit 
     the government to escape the $100-million expense of 
     providing state facilities adjacent to the religious schools, 
     so the teaching would not be on the grounds of a church 
     school. It can be questioned whether the 5-4 majority was 
     acting to protect religious freedom, or to protect government 
     purse strings.
     \47\ Fordham University vs. Brown, 856 F. Supp. 684 
     (D.C.Cir., 1994), appeal dismissed per stipulation 94-5229 
     (D.C.Cir., Jan 5, 1996).
     \48\ In Witters v. Washington Department of Services for the 
     Blind, 474 U.S. 481 (1986), although the federal constitution 
     (by a 5-4 Supreme Court ruling) was not used to deny 
     vocational rehabilitation funds to an individual who desired 
     to become a pastor, the state constitution was ultimately 
     used to block this.
     \49\ Scalia, Rehnquist, White and Thomas, in their dissent in 
     Lee v. Weisman, at 505 U.S. 646.
     \50\ Wallace v. Jaffree, 472 U.S. 38 (1985)
                                 ______
                                 

                             Governing God


               a judge's reflections on religious freedom

                       (By Richard John Neuhaus)

       Since his appointment to the Ninth Circuit Court of Appeals 
     in 1986, John Noonan has provided ample evidence that he is 
     one of the most distinguished minds in our federal judiciary. 
     Earlier, as a law professor at Berkeley and the author of 
     major studies on the connections between religion and law, he 
     demonstrated that he is, above all, a historian of ideas. 
     That demonstration continues with his most recent work, The 
     Lustre of Our Country, which is a personal summing up of 
     Noonan's reflections on what he believes to be America's most 
     innovative and audacious contribution to world history--the 
     free exercise of religion.
       The book's title comes from Noonan's hero, James Madison, 
     for whom ``the whole burden of freedom was carried by the 
     formula of free exercise.'' The First Amendment's commitment 
     to the free exercise of religion, Madison wrote, ``promised a 
     lustre to our country.'' That commitment is expressed in 
     merely sixteen words: ``Congress shall make no law respecting 
     an establishment of religion, or prohibiting the free 
     exercise thereof.''
       But the interpretation of those words, more than any other 
     aspect of contemporary jurisprudence, has cut to the heart of 
     our understanding of the American experiment. Although his 
     tone is generally irenic, Noonan leaves no doubt that the 
     courts--and the Supreme Court in particular--have made a hash 
     of the Religion Clause under the rubric of ``church-state 
     law.''
       An egregious error entrenched itself in the 1950s when the 
     courts began speaking not of the Religion Clause but of two 
     Religion Clauses--the no-establishment clause and the free-
     exercise clause. Predictably, the error has been compounded 
     again and again as the ``two clauses'' have been pitted 
     against each other, almost always to the detriment of free 
     exercise. But as Noonan notes,

[[Page H2413]]

     we are dealing with two prepositional phrases of one clause. 
     ``The first phrase assumed that establishments of religion 
     existed as they did in fact exist in several of the 
     states; the amendment restrained the power of Congress to 
     affect them. The second phrase was absolute in its denial 
     of federal legislative power to inhibit religious 
     exercise.'' Over time, state establishments disappeared 
     and the First Amendment was ``incorporated'' to apply also 
     to the states, but always it should have been evident that 
     there is one Religion Clause, devoted to the end of the 
     free exercise of religion. No establishment is a 
     stipulated means to serve that end. The jurisprudence of 
     the last half century, however, has tended to turn the 
     means into the end, repeatedly declaring that any 
     connection, no matter how benign, between government and 
     religion is a forbidden ``establishment.'' The result is a 
     court-imposed governmental indifference to religion that 
     results in de facto governmental hostility to religion.
       In regulating the activities of government, Noonan notes, 
     the courts frequently pretend that they are not themselves 
     part of government. But in fact, they are that part of the 
     government that assumes that ``the courts themselves are 
     sacred.'' ``Performing these tasks that they have determined 
     to be allotted them by the First Amendment, the courts 
     unself-consciously place themselves above any church or 
     creed.'' And this is precisely what Madison was determined to 
     avoid by declaring that citizens had a ``prior obligation'' 
     and ``natural right'' to acknowledge a sovereignty higher 
     than the sovereignty of the state. The genius of his 
     innovation was to insist that, with respect to the exercise 
     of that obligation and right, the government has no 
     legitimate ``cognizance.''
       The Founders were keenly aware that the free exercise of 
     religion was qualitatively different from religious 
     tolerance. ``Tolerance,'' writes Noonan, ``is a policy, an 
     acceptance of religious difference because it's more trouble 
     than it's worth to eliminate it, a prudential stance of wise 
     statesmen. It is something else to inscribe in fundamental 
     law an ideal of freedom for the human activity most 
     potentially subversive of the existing order.''
       The free exercise of religion is most potentially 
     subversive because it proclaims a sovereignty that ``stands 
     against the sovereignty of the state.'' Writes Noonan, 
     ``Each individual's religion `wholly exempt' from social 
     control? No qualifications whatever on the right and duty 
     to pay homage to God as one sees fit? Surely, in the heat 
     of battle, Madison exaggerates! No, his theological 
     premises compel these radical conclusions.''
       The last point touches on a matter central to Noonan's 
     argument, namely, that the free exercise of religion is, in 
     the main, a religious achievement. This is explicitly 
     proposed against the received wisdom that religious freedom--
     usually construed as tolerance--is the achievement of the 
     secular Enlightenment against religion. In carrying this 
     point, Noonan the historian is on impressive display.
       The Lustre of Our Country is oddly contrived. It begins 
     with an engaging autobiographical sketch of the Catholic 
     author coming of age under the shadow of Puritan Boston. 
     Noonan then examines the limits and contradictions embodied 
     in the Puritan idea of religious freedom, to which he 
     contrasts Madison's ``original insight.'' A chapter is 
     devoted to a fictional letter ``discovered'' by Noonan, 
     written by Tocqueville's younger sister, who argues that her 
     brother was right to view religion as ``the foremost 
     institution'' of American democracy, but wrong in claiming 
     that the ``separation of church and state'' is, in fact, the 
     American reality. Employing various literary techniques, 
     sometimes eccentric but always fascinating, Noonan retells 
     key cases in which the Supreme Court has tied itself into 
     knots by regulating religion, with the result that it ends up 
     in ludicrous efforts to adjudicate the sincerity and truth of 
     religious claims--exactly the claims that Madison declared to 
     be none of the government's business.
       On the ``subversive'' dimension of free exercise, Noonan 
     recalls four ``crusades''--the abolition of slavery, the war 
     against Mormon polygamy, the prohibition of alcohol, and the 
     civil-rights movement under the leadership of Martin Luther 
     King Jr. Curiously, he does not include a fifth crusade, that 
     against the abortion license of Roe v. Wade, on which he has 
     written elsewhere with great persuasive effect. In all this, 
     Noonan leaves no doubt that the free exercise of religion 
     is an idea potentially dangerous to the state. Yet Madison 
     and most of the other Founders believed that the entire 
     constitutional order, this novus ordo seclorum, was 
     contingent upon taking that risk. Noonan worries that we 
     Americans, with the courts in the lead, may now have lost 
     our nerve for it. Implicit in that loss of nerve, he 
     suggests, is an acceptance of Durkheim's view that 
     religion is essentially a function of society, something 
     to be used and tolerated to the extent that it serves 
     ``the sacred society.''
       Nonetheless, Noonan is by no means ready to give up. For 
     all the missteps along the way, the American commitment to 
     the free exercise of religion is still, he insists, a 
     ``success.'' Against what he views as the false humility of 
     many Americans, he urges a forthright acknowledgment that 
     religious freedom is this country's foremost contribution to 
     the world's understanding of just government. In advancing 
     that claim, he devotes chapters to four contrasting case 
     studies: the French Revolution's affirmation and betrayal of 
     the American idea of religious freedom; the American 
     imposition of the idea on a defeated Japan; Russia's current 
     and deeply flawed efforts to incorporate the idea; and the 
     American influence in the Second Vatican Council's teaching 
     on religious liberty.
       The Lustre of Our Country is erudite and instructive, 
     frequently whimsical and typically wise. Yet I expect that 
     other readers will share my frustration with aspects of its 
     argument. At times, Noonan seems to conflate freedom of 
     religion with freedom of conscience. There are similarities, 
     to be sure, there are also big differences. Freedom of 
     conscience is easily reduced to radical individualism, ending 
     up with what Noonan rightly deplores as the courts' common 
     depiction of religion as a private aberration, to be 
     tolerated insofar as it does not interfere with government 
     purposes. This conflation also invites the subsuming of 
     religious freedom into constitutional guarantees of freedom 
     of speech and other provisions that ignore religion's 
     necessarily subversive witness to a higher sovereignty. 
     Noonan is apparently unhappy with the Supreme Court's recent 
     striking down of the Religious Freedom Restoration Act--a 
     decision that many viewed as tantamount to a repeal of the 
     Religion Clause--but he offers no suggestion of other 
     legislative remedies for judicial hostility to religion, a 
     matter of some importance, as Congress is now working on 
     another effort to produce such legislation.
       Throughout the book, the reader is provoked to speculate 
     about the assumptions underlying Noonan's judicial 
     philosophy. He is clearly a ``textualist,'' and also an 
     ``originalist,'' in his devotion to the radical intention of 
     those responsible for the First Amendment. Yet at other time 
     she seems to want judges to act as philosopher kings. His 
     epilogue proposes ``Ten Commandments'' for people who deal 
     with religious freedom, including the admonition that ``you 
     shall know that no person, man or woman, historian or law 
     professor or constitutional commentator or judge, is neutral 
     in this matter.'' Fair enough. Noonan is right to insist 
     that, where religion is concerned, imagination and empathy 
     are required. ``Can a judge be a pilgrim?'' he asks. He 
     answers in the affirmative. But as a judge, he should strive 
     to read the law, to be objective, and, yes, to be neutral. 
     Safety from judicial usurpation rests not so much in having 
     judges who are better philosophers as in having judges who 
     recognize that, as Madison would say, there are questions 
     beyond their ``cognizance.''
       Both suggestive and problematic is Noonan's persistent 
     drawing of parallels between judicial interpretation and John 
     Henry Newman's theory of ``the development of doctrine.'' In 
     this connection, he offers an extended treatment of the 
     development of Catholic teaching on religious freedom at 
     Vatican Council II. Clearly, Noonan has no use for the 
     exponents of a ``living Constitution,'' who declare, in 
     effect, that the Constitution is dead because it means 
     whatever the courts say it means. Just as clearly, there are 
     parallels between what judges do and what church councils do. 
     Both are involved in trying to comprehend a ``sacred text'' 
     as it relates to current problems and understandings.
       A crucial difference, however, and a difference on wishes 
     Judge Noonan addressed more directly, is that church 
     councils--at least in the Catholic understanding of things--
     are promised the guidance of the Holy Spirit.
       But let me not leave the wrong impression. The questions 
     and arguments provoked by The Lustre of Our Country testify 
     to its great achievement. Judge Noonan understands, as very 
     few judges and constitutional scholars do, the founding 
     genius of the American experiment. He understands those 
     sixteen words in the First Amendment--and persuasively 
     explains why they continue to be this country's most 
     innovative, audacious, and promising contribution to the 
     world's understanding of the right ordering of political 
     society.
                                  ____


              [From U.S. News & World Report, May 4, 1998]

                        A Righteous Indignation


James Dobson--psychologist, radio host, family-values crusader--is set 
                 to topple the political establishment

                         (By Michael J. Gerson)

       On March 18, in the basement of the Capitol, 25 House 
     Republicans met with psychologist James Dobson for some 
     emotional venting. But this was not personal therapy; it 
     concerned the fate of their party. Dobson, long on loyal 
     radio listeners and short on patience, was threatening, in 
     effect, to bring down the GOP unless it made conservative 
     social issues, including abortion, a higher legislative 
     priority. ``If I go,'' he has said, ``I will do everything I 
     can to take as many people with me as possible.''
       In the audience sat some of Dobson's closest ideological 
     allies. Rep. Steve Largent of Oklahoma, a former star 
     football player, was a volunteer speaker for Dobson's 
     organization, Focus on the Family, from 1990 to 1993. He 
     credits this with ``sparking my interest in public policy.'' 
     Rep. James Talent of Missouri, years before, had pulled off 
     the highway and prayed along with Dobson on the radio to 
     become a Christian. ``He is the instrument through which I 
     committed my life to Christ. It is the single most important 
     thing that has ever or will ever happen to me.''
       But for over two hours, until nearly midnight, House 
     conservatives confronted Dobson about his indiscriminate 
     attacks on the

[[Page H2414]]

     Republican Party, asking credit for achievements he had 
     ignored. At one point the wife of a congressman, in tears, 
     explained how Dobson's broadside had hurt their family, 
     inviting harsh questions from friends. An emotional Dobson, 
     according to one witness, responded, ``I'm so sorry I hurt 
     you.''
       Sobered, Dobson canceled planned meetings with the New York 
     Times and the Washington Post, where he would have laid out 
     his threat to leave. But in the next two weeks, he sent 
     lengthy, public letters renewing the threat, which hangs in 
     the air like distant thunder at the Republican picnic.
       This conflict dramatizes a growing gap between grass-roots 
     conservatism and governing conservatism, between the raised 
     expectations of activists and the weary realism of 
     legislators. It reveals a party that may be crumbling, not at 
     its periphery but at its center, among its most loyal 
     supporters. And it may be signaling a major shift in the 
     attitudes of Christian conservatives toward politics.
       Many Republicans are taking Dobson's divorce threats very 
     seriously. House Speaker Newt Gingrich has hosted several 
     meetings with other House leaders to discuss Dobson's 
     specific demands, which include defunding Planned Parenthood, 
     requiring parental consent for abortions, and eliminating the 
     National Endowment for the Arts. House Majority Leader Dick 
     Armey has asked subcommittee chairmen to explore how Dobson's 
     agenda could be advanced. But Dobson will not be easily 
     appeased. Of the assurances he has been offered that his 
     issues will be taken seriously, he says: ``We've got to see 
     the proof. . . . If they will not change, I will try to beat 
     them this fall.''


                               His focus

       Dobson is a central figure in Republican politics because 
     he is the central figure in conservative Christianity. His 
     radio and TV broadcasts are heard or seen by 28 million 
     people a week. A core audience of 4 million listens to his 
     Focus on the Family radio show every day. That gives him a 
     greater reach than either Jerry Falwell or Pat Robertson at 
     the height of their appeal. Dobson's most popular books have 
     sold more than 16 million copies, and his other tracts and 
     pamphlets have sold millions more. His organization, Focus on 
     the Family, has a budget five times the size of the Christian 
     Coalition's and gets so much mail it has its own zip code. 
     His mailing list of over 2 million is one of the most potent 
     organizing tools in the religious world.
       But the 62-year-old Dobson is not a preacher or political 
     activist. He is a psychologist, and his authority comes from 
     an ability to connect with people right at the level of their 
     problems. ``His family advice is simply helpful, and he has a 
     reputation for absolute integrity--standing for something and 
     sticking to it,'' says Prof. John Green of the University of 
     Akron, an expert on the religious right.
       The effect is completed by the slight drawl of a country 
     doctor, a radio voice that is at once effortless and 
     authoritative. Its influence seems to surprise even him. ``My 
     voice is a friendly voice that comes into the home each day, 
     somebody they know, somebody many of them trust. And it does 
     become a king of friendship. It's a strange thing. I have a 
     lot of women especially who write me and say, `My father was 
     not a father to me. . . . You've become a father to me,' 
     which is interesting when you consider I've never met them.''
       Dobson is very much the son, grandson, and great-grandson 
     of Nazarene evangelists, a denomination known both for moral 
     sterness--no movies or makeup--and for the emotional openness 
     of the camp meeting. This is the evangelicalism of the 
     quivering lip, the arm around the shoulder, the lump in the 
     throat, the easy tear. Though he might resent the comparison, 
     Dobson displays a Clinton-like emotional connection, 
     particularly with women, who make up the vast majority of his 
     audience. He accepted the Nazarene faith at the age of 3 and 
     never rebelled against it, though, like many of his 
     generation of Nazarenes, he abandoned its more rigid 
     prohibitions against pop culture.
       As an only child, Dobson was ``spoiled rotten,'' recalls 
     old friend Mike Williamson. ``His family doted over him.'' 
     And Dobson developed a particularly close relationship with 
     his father, who combined the moral rigor of a preacher with 
     the softer traits of an artist. (He was a serious painter.) 
     ``He was a gentle man, a kind man, an easy touch, but 
     outraged toward sin,'' Dobson says. ``He had an abhorrence of 
     that which offended God, and a lot of what I feel today 
     reflects that.''
       Dobson might have been expected to go into the ministry 
     himself. But Nazarene ministry must be inspired by a very 
     special calling from God, and Dobson never felt it. He went 
     instead to a Nazarene school in California, Pasadena College, 
     and then to the graduate program in psychology at the 
     University of Southern California. There he found himself 
     interested in the science of child development, and he spent 
     14 years as a professor of pediatrics at the USC School of 
     Medicine and 17 years on the attending staff at Children's 
     Hospital at Los Angeles.
       In the middle of his career, Dobson was hungry for broader 
     influence on the issue he cared about most: child rearing. He 
     hired an agent and began lecturing. And he also published a 
     book in 1970 titled Dare to Discipline. It sold 3 million 
     copies and established his national reputation. Dobson, who 
     has written 15 other books, is a critic of permissive 
     parenting. He stresses the idea that kids need boundaries to 
     develop self-esteem and self-confidence. Children's behavior 
     can be conditioned by the judicious use of rewards and 
     punishments. He believes spanking is permissible, but only 
     between 18 months and 8 years, and never by anyone with a 
     history of abuse or a violent temper. But he also argues that 
     rules without relationship lead to rebellion. So parents, 
     while firm, should be emotionally accessible to their 
     children.
       Dobson stresses the need for fathers to be fully engaged in 
     the life of their family, in contrast to the distant 
     breadwinners of the past. His film on the subject, Where's 
     Dad?, had a profound effect, for example, on Rep. Frank Wolf 
     of Virginia. ``That film, that day, changed my life. After 
     that, I never went to a political event on Sunday, not when 
     asked by George Bush or Ronald Reagan. I dedicated myself to 
     spending more time with [the children]. My kids joke about 
     B.D. and A.D.--before Dobson and after Dobson.''
       The psychologist's method is a mix of traditional 
     parenting, biblical insights, and basic psychology--a 
     traditionalism humanized by common sense and flexibility. His 
     advice to a mother and 12-year-old daughter fighting bitterly 
     over whether the young girl should be allowed to shave her 
     legs: ``Lady, buy your daughter a razor!'' His counsel on 
     masturbation: ``Attempting to suppress this act is one 
     campaign that is destined to fail--so why wage it?'' He urges 
     discipline for big issues and tolerance on the smaller stuff.
       When demand for Dobson as a speaker began to steal time 
     from his own two children, he quit his job at Children's 
     Hospital of Los Angeles in 1977 and started his radio 
     program. Two years later, he summarized his parenting views 
     in a seven-part Focus on the Family video series, which has 
     now been seen by 70 million people. Rapid growth carried the 
     ministry through five headquarters buildings and from 
     California to Colorado Springs, where 1,300 people work in 
     the $113 million enterprise.
       Focus provides answers to those seeking advice. It is also 
     the center of a pro-family culture that is a kind of parallel 
     universe to mainstream popular culture. There are monthly 
     magazines for pre-schoolers, grade schoolers, teen boys, and 
     teen girls. Glossy, frank, and helpful, they have articles 
     like ``Battle of an Anorexic,'' ``Back-to-School Fashion,'' 
     and ``Spiritual Growth Boosters.'' Other magazines go to 
     single parents, teachers, physicians, and pastors. Focus's 
     second-most-popular production--after Dobson's daily radio 
     program--is Adventures in Odyssey, a children's radio drama 
     with moral story lines that is carried on over 1,500 radio 
     stations. There are women's seminars and ``Life on the Edge'' 
     seminars, designed to help parents and teens communicate 
     about the challenges of adolescence. A new abstinence video, 
     titled No Apologies, combines MTV production techniques, 
     biblical values, and the explicitness of an Army VD training 
     film. Teens who have already had sex are urged to be 
     ``recycled virgins.'' It is countercultural, urging children 
     to rebel against the slipshod moral world around them by 
     displaying virtue.
       Most of the Focus operation, which receives up to 12,000 
     letters, calls, and E-mails every day, is occupied with 
     ``constituent service.'' In one pile of counseling requests 
     at a random Focus cubicle, a long-distance trucker asks how 
     to keep his family together when he is always gone; a woman 
     deals with a miscarriage; a divorced man asks if it is OK to 
     remarry. Prototype responses, drawn from Dobson's vast output 
     of advice, guide counselors. All incoming letters are stored 
     by computer, so the next time these people write, the 
     dialogue will pick up where it left off. Focus does not just 
     answer mail; it maintains relationships. Some hard cases are 
     referred to licensed counselors. Some people are offered 
     temporary financial help. They deal with one or two suicide 
     threats a week.
       Dobson's reach grows each day. At a recent weekly meeting 
     of the Focus ``cabinet''--Dobson plus his senior executives--
     there were reports on the translation of Focus broadcasts 
     into Zulu. On how three Central and South American countries 
     were putting Focus abstinence material into their public 
     schools. On how Adventures in Odyssey is now one of the top 
     five radio programs in Zimbabwe. On how 500 state-owned radio 
     stations in China are about to begin the Focus broadcast.
       When it comes to the business of helping people, Dobson the 
     empathetic extrovert has a reputation as an intimidating 
     micromanager. No one, no matter how long or loyal their 
     service, is exempt from confrontational scrutiny. ``I saw 
     people who had given blood [serving] him come out of his 
     office weeping,'' says a former employee. ``He believes so 
     strongly in his rightness.'' Another former employee says 
     ``the pace [at Focus] is unbelievable. But everyone has to 
     appear perfectly happy.''
       At the center of it all is a man who does not lack 
     confidence. He tells a story about his ill father, who prayed 
     for three days and nights without sleep that his time on 
     Earth would be extended so he could finish his work as a 
     minister. At dawn, Gold told him he was going to reach 
     millions around the world--not through himself but through 
     his son. The next day Dobson's father suffered a major 
     heart attack; he died in a few weeks. ``I saw for the 
     first time,'' says Dobson, ``why [Focus on the Family] 
     seemed charmed--beyond my ability and beyond my 
     intelligence,

[[Page H2415]]

     my academic knowledge, my ability to communicate.'' This 
     is the person who has chosen to test his influence against 
     the Republican Party. He does not describe his actions as 
     those of a man moved by grubby ambition; he sees it as a 
     calling.


                         politics and prophecy

       Dobson was once positioned to be a more conservative 
     version of Joyce Brothers. ``If I had simply stayed on those 
     [family] themes, I could have moved with ease through all 
     denominations in both political parties. But I care about the 
     moral tone of the nation, I care about right and wrong. I 
     have very deep convictions about absolute truth.''
       His sense of political urgency has come in stages. 
     Convinced that his and his followers' views were not being 
     given voice in Washington, he created in 1982 an advocacy 
     group, the Family Research Council. But it was purposely 
     designed to keep him one step removed from direct political 
     involvement. Gary Bauer, a key aide in Ronald Reagan's White 
     House, now runs the group, and he is supposed to be the 
     partisan lightning rod, allowing Dobson to focus, as it were, 
     on the family.
       But Dobson, in the past several months, has become so 
     dissatisfied with conservatives' performance in Congress that 
     he wants to become more directly and personally involved in 
     politics. ``He has watched the manipulation of the religious 
     right for the last decade,'' argues his close friend Charles 
     Colson. ``He feels a sense of betrayal and responsibility for 
     stewardship of the great silent majority.''
       He is particularly intolerant of those who share his views 
     but not his driving sense of urgency. So he has developed a 
     habit of targeting allies with footnoted letters showing that 
     Dobson can at times slip over the line between righteousness 
     and self-righteousness. When Ralph Reed, then the head of the 
     Christian Coalition, was insufficiently critical during the 
     last election of Colin Powell for his support of abortion 
     rights, Dobson wrote to Reed: ``Gary Bauer and I have 
     discussed your recent statements and considered the need to 
     distances ourselves from you. . . . Some of the politicians 
     with whom you have made common cause . . . would seal the 
     fate of [unborn children] and sacrifice millions more in 
     years to come. I will fight that evil as long as there is 
     breath within my body.'' Commenting on Dobson's tendency to 
     attack allies, conservative columnist Cal Thomas argues, 
     ``You begin to marginalize yourself, saying, I am the only 
     true believer. Soon you are left only with your wife, then 
     you begin to look at her funny. All of a sudden, you're Ross 
     Perot.'' When confronted with the charge, Dobson responds: 
     ``I guess it irritates me when people who know what is right 
     put self-preservation and power ahead of moral principle. 
     That is more offensive to me, in some ways, than what Bill 
     Clinton does with interns at the White House.''
       Dobson is not the kind of traditional conservative who has 
     a keen appreciation of the limits and complexities of 
     politics. He is a moralist and a populist, demanding rapid, 
     immediate progress to fit a flaming moral vision: ``If you 
     look at the cultural war that's going on, most of what those 
     who disagree with us represent leads to death--abortion, 
     euthanasia, promiscuity in heterosexuality, promiscuity in 
     homosexuality, legalization of drugs. There are only two 
     choices. It really is that clear. It's either God's way, or 
     it is the way of social disintegration.''
       Some conservatives dismiss this as an impractical 
     philosophy for a governing party since progress emerges by 
     small steps. Other conservative critics fear that Dobson's 
     increased partisanship might undermine the generally 
     nonpartisan good works of Focus on the Family. Still others 
     warn that his walkout strategy will only result in the 
     election of Democrat Dick Gephardt as House speaker. Dobson's 
     response: ``It is never wrong to do what's right. And you 
     stand for what's right whether it is strategic or not.''
       The fact that Dobson has struck a chord among conservative 
     activists may be signaling an important shift of political 
     styles in evangelicalism. There are at least three of those 
     tendencies to be considered: priest, kingmaker, prophet. From 
     the 1950s to the 1970s, Billy Graham performed a priestly 
     function as minister to the ministers of state. His role was 
     to legitimize power and to use his access to present the 
     Christian Gospel, which was his primary goal. Personal 
     contact and influence were paramount. In the 1980s, 
     culminating in the rise of Pat Robertson and the Christian 
     Coalition, the goal shifted from legitimizing power to 
     exercising power--the role of kingmaker. Robertson, the son 
     of a senator, understood the give and take of coalition 
     building and the need for a place at the table.
       But the pragmatism of the religious right is under serious 
     question, particularly in the wake of the coalition's embrace 
     of Republican Bob Dole in the last presidential election, 
     which many in the movement argue was a compromise too far. 
     University of Akron's Green compares Dobson to an Old 
     Testament prophet ``speaking truth to power.'' It is a 
     designation Dobson accepts: ``I really do feel that the 
     prophetic role is part of what God gave me to do.''
       And that frames the questions for his supporters: Do 
     Christian activists want to be players or prophets? Insiders 
     who accept inevitable compromises, or outsiders who hold on 
     to higher standards?


                             the next move

       Dobson has rejected the idea of becoming a political 
     candidate himself or trying to create a third party. This 
     leaves him with two options. The conventional choice is for 
     Dobson to intervene directly in Republican primaries on the 
     side of social conservatives. This would require, in Dobson's 
     words, ``periodic leaves of absence'' to protect the 
     nonprofit status of Focus on the Family. Bauer's political 
     action committee has already scouted 40 races where Dobson 
     might throw his weight on the side of a candidate. After the 
     congressional elections, Dobson would determine how to have 
     the maximum impact in the 2000 presidential campaign. Bauer 
     himself is considering a presidential run and covets Dobson's 
     endorsement.
       But Dobson is also actively considering ``going nuclear'' 
     against the GOP leadership. Instead of working through 
     primaries in the summer, Dobson would urge social 
     conservatives to abandon Republicans in November--to stay at 
     home or vote for third parties--with the goal of ending the 
     GOP majority in Congress. ``It doesn't take that many votes 
     to do it. You just look how many people are there by just a 
     hair, [who won their last election by] 51 percent to 49 
     percent, and they have a 10- or 11-vote majority, I told 
     [House Majority Whip] Tom DeLay, `I really hope you guys 
     don't make me try to prove it, because I will.' '' One senior 
     Republican official says he has identified six districts in 
     which Dobson could ``turn the tide'' against the GOP 
     candidate, Dobson muses about delivering this message by 
     ``getting a stadium with 50,000 seats and having Chuck Colson 
     and Phyllis Schlafly and Alan Keyes and Gary Bauer and myself 
     fill it at a strategic times. That get the attention of 
     Republican leaders.''
       Some Republican insiders believe the effect of either 
     approach--working within the party or working against it--
     would be much the same. Bauer's political action committee's 
     fervent support for a conservative candidate in a recent 
     California congressional special election helped elevate the 
     abortion issue. Party leaders believe this allowed Democrat 
     Lois Capps to win in the moderate district. They fear that if 
     Dobson intervenes on behalf of social conservatives in other 
     contests, similar results will follow. As for the nuclear 
     option, the mood of many Republicans is frustrated 
     resignation that Dobson will always be on the attack against 
     the GOP. ``It wouldn't matter how many hoops of fire we jump 
     through, it is never enough for him,'' complains one party 
     official. That strategist and others say majority parties 
     have a responsibility to govern, and that means muting 
     ideological fervor at times. It is hard to imagine this 
     official and Jim Dobson in the same party--and it may be 
     increasingly hard for Dobson to imagine that as well.

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