[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.
____________________