[House Report 105-543]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-543
_______________________________________________________________________
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
RESTORING RELIGIOUS FREEDOM
_______________________________________________________________________
May 19, 1998.--Referred to the House Calendar and ordered to be printed
_______
Mr. Canady of Florida, from the Committee on the Judiciary, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 78]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
joint resolution (H.J. Res. 78) proposing an amendment to the
Constitution of the United States restoring religious freedom,
having considered the same, reports favorably thereon with an
amendment and recommends that the joint resolution as amended
do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 3
Hearings................................................... 15
Committee Consideration.................................... 17
Vote of the Committee...................................... 17
Committee Oversight Findings............................... 18
Committee on Government Reform and Oversight Findings...... 19
New Budget Authority and Tax Expenditures.................. 19
Congressional Budget Office Cost Estimate.................. 19
Constitutional Authority Statement......................... 20
Legislative Analysis....................................... 20
Dissenting Views........................................... 21
Additional Dissenting Views................................ 34
The amendment is as follows:
Strike out all after the resolving clause and insert in
lieu thereof the following:
That the following article is proposed as an amendment to the
Constitution of the United States, which shall be valid to all intents
and purposes as part of the Constitution when ratified by the
legislatures of three-fourths of the several States within seven years
after the date of its submission for ratification:
``Article --
``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.''
Purpose and Summary
H.J. Res. 78 proposes to amend the Constitution of the
United States to secure the people's right to acknowledge God
according to the dictates of conscience.\1\ The purpose of the
Religious Freedom Amendment (RFA) is to restore the right of
religious persons to acknowledge their beliefs, heritage, and
traditions on public property, to engage in voluntary school
prayer, and to have an equal opportunity to participate in
government programs, activities, or benefits. The RFA would
prohibit Federal and state governments from establishing any
religion, prescribing any particular prayer, forcing anyone to
join in prayer, discriminating against religion, or denying
equal access to a benefit because of religious affiliation.\2\
If adopted, the RFA would not repeal but would coexist in the
Constitution with the religion clauses of the First Amendment,
which provide that ``Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof . . .'' Nevertheless, the RFA clearly is intended to
alter a number of judicial interpretations of those clauses,
particularly of the establishment clause.
---------------------------------------------------------------------------
\1\ More than forty-five states mention God in their constitutions
or preambles to their constitutions and reference to a divinity occurs
three times in the Declaration of Independence (``God,'' ``Creator,''
and ``divine Providence'').
\2\ During the Subcommittee on the Constitution markup on October
28, 1997, H.J. Res 78 was amended to make clear that ``government''
meant both the United States and state governments. The clear intention
of the RFA is that it apply to the federal government and the states.
The Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940), held
that the establishment clause applies to the federal government and to
the states.
---------------------------------------------------------------------------
H.J. Res. 78, introduced by Congressman Ernest J. Istook,
of Oklahoma, would respond to the public's concern that the
Supreme Court and lower courts have misinterpreted the
Constitution by issuing rulings that severely restrict
religious expression when other forms of free speech are not so
restricted, and which result in discrimination against a
religious viewpoint in public affairs. The RFA would rectify
acts of discrimination toward religious expression in everyday
life. For example, the RFA would permit public schools to give
students a moment of silence for prayer and the ability to
pray
on a voluntary basis in their classrooms. The RFA would permit
prayer at high school graduation ceremonies as long as the
government did not mandate that the prayer be part of the
ceremonies or prescribe the text of the prayer, and would give
religious groups and clubs the same degree of consideration as
other secular groups receive when the use of school meeting
rooms is requested. The RFA would allow the posting and display
of symbols of differing faiths on public property and on
government seals and insignia. The RFA would permit religious
groups that provide social services programs the ability to be
eligible to receive grants and contracts for these services to
the same extent other private secular social services group are
eligible.
The goal of the RFA is not to change the First Amendment
but rather to restore to the law a balanced and even-handed
treatment of religious expression and affiliation.\3\ The RFA
has broad-based support from a diverse group of religious
organizations.
---------------------------------------------------------------------------
\3\ The only previous vote in the House on a constitutional
amendment concerning church and state in recent decades occurred in
1971, when the House voted in favor of H.J.Res. 191, a school prayer
proposal by Rep. Wylie (R.-Oh.) by a margin of 240-162; but that was
twenty-eight votes short of the necessary two-thirds majority. That
measure came to the House floor not by means of a Committee
recommendations but through a discharge petition. The Senate conducted
votes in 1966, 1970, and 1984.
---------------------------------------------------------------------------
Background and Need For the Legislation
Over the past four years, the Subcommittee on the
Constitution held a number of hearings on the issue of
``Religious Liberty and the Bill of Rights.'' The hearings
revealed that religious speech, whether in school or on other
public property, is often not afforded the same protection as
non-religious speech. In addition to individuals encountering a
hostility toward the exercise of free speech when the topic is
religious in nature, qualified faith-based institutions are
prevented from participating in programs to provide social
services, drug prevention education, and drug treatment because
of their religious character.
The Subcommittee hearings included testimony from legal
experts on the state of legal protection for religious freedom
and testimony from individuals from around the country who
related stories of adverse treatment because of their religion.
Testimony from the regional hearings showed widespread
discriminatory treatment based both on ignorance of the law and
on outright animosity toward people with a religious viewpoint.
For example:
In Harrisonburg, Virginia, Jason Nauman testified
that while he was Student Council President his
classmates voted to have him deliver the keynote
commencement address, but he was told by the principal
and the school board attorney that anyone submitting a
speech which included a prayer or reference to God
would be removed from the graduation program. Also in
Harrisonburg, Mrs. Ellen Pearson told the Subcommittee
that she took her daughter Audrey, who attended special
education classes, out of a Prince William County
public school after the principal said that Audrey
could not read her Bible on the school bus because it
was a violation of the separation of church and state.
In Tampa, Florida, students testified that they were
told they could not carry Bibles to school, could not
mention God or prayer in their commencement addresses,
and could not invite classmates to a church-sponsored
harvestfest celebration that was being held as an
alternative to Halloween ``trick-or-treating.''
In Oklahoma City, Lyn Whittington testified that she
filed suit in Federal court when, as a public employee,
she was forbidden by the government from attending
Bible studies during non-work hours.
In the District of Columbia, Mrs. Anna Doyle, from
Rhode Island, told the Subcommittee on the Constitution
how public school officials confiscated rosaries that
her daughter Kathryn had made for her friends. Mrs.
Doyle reported that a teacher told her daughter that
her favorite book ``Jesus My Love'' could not be read
during ``sharing time'' in school because it was
``against the law.''
More problematic than ignorance of the law, however, is the
effect of misinterpretation of constitutional guarantees by the
courts. Specifically, the phrase ``separation of church and
state'' has been used frequently 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. Because government is today
found almost everywhere, this growth of government has dictated
a shrinking of religion under this faulty theory.
``Separation'' has become a euphemism for ``crowding out''
religion.\4\ That phrase is not found in the Constitution; yet
it is commonly erroneously treated as the standard measuring
stick for religious freedom issues. A proper analysis of the
right to religious freedom should center on the actual text of
the Constitution.
---------------------------------------------------------------------------
\4\ 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.''
---------------------------------------------------------------------------
Our courts are blazing a wayward trail because they use a
broken compass, a fact noted by several dissenting justices on
the Supreme Court. 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 his dissent in Wallace v. Jaffree, 472 U.S. 38
(1985), condemned the reliance on the phrase ``separation of
church and state:'' ``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 . . .'' 472 U.S. at 99. Rehnquist also
examined the meaning of establishment: ``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.'' Id. at 106. Justice
Rehnquist pointed to the patch-work precedents which have
attempted to clarify the rule as evidence of its
inappropriateness:
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.' Lemon v.
Kurtzman, 403 U.S. 602, 614 (1971); Tilton v.
Richardson, 403 U.S. 672, 677-678 (1971); Wolman v.
Walter, 433 U.S. 229, 236 (1977); Lynch v. Donnelly,
465 U.S. 668, 673 (1984).
Id. at 107. Rehnquist perceived the real trouble of the rule as
follows: ``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. . . . [it] 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.'' Id.
The RFA reflects the dissenting opinions of many Justices
during this period, many of which were 5-4 decisions. As noted
in numerous examples, the RFA reflects the opinions expressed
by many Supreme Court justices prior to the Court's detours in
recent years.
The deficiencies in current law and the effect of the RFA
are discussed in three sections: School Prayer, Religious
Expression on Public Property, and Equal Access to Government
Benefits.
I. School Prayer
A. Classroom Prayer
The Supreme Court has construed the establishment clause to
prohibit government sponsorship or promotion of devotional
activities such as prayer or Bible reading. Engel v. Vitale,
370 U.S. 421 (1962); Abington School District v. Schempp, 374
U.S. 203 (1963); Chamberlin v. Dade County Board of
Instruction, 377 U.S. 402 (1964). In addition, moment-of-
silence statutes for the purpose of prayer are regarded as
unconstitutional. Wallace v. Jaffree, 472 U.S. 38 (1985).
Current law does not allow school-sponsored invocations and
benedictions by clergy at commencement ceremonies. Lee v.
Weisman, 505 U.S. 577 (1992). As for student-initiated and
student-delivered prayer, the Supreme Court has yet to rule,
and the federal circuit courts of appeal are split. See, e.g.,
Jones v. Clear Creek Independent School District, 977 F.2d 963
(5th Cir. 1992) (student prayer does not violate establishment
clause) and ACLU of New Jersey v. Black Horse Pike Regional
Board of Education, 84 F.3d 1471 (3d Cir. 1996) (school board
policy allowing vote of senior class to determine if prayer
will be included in high school graduation is
unconstitutional).
The RFA states: ``[T]he people's right to pray and to
recognize their religious beliefs, heritage or traditions on
public property, including schools, shall not be infringed.''
In addition, it states that there are certain activities in
which the government cannot engage: ``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 . . .''
The RFA is intended to follow the standard which the U.S.
Supreme Court has applied to the Pledge of Allegiance. ``The
RFA effectively endorses and follows the standard applied by
the Supreme Court in West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943). 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 [sic] classmates from
saying the Pledge of Allegiance.'' \5\
---------------------------------------------------------------------------
\5\ Written Statement of Rep. Ernest Istook before the Subcommittee
on the Constitution. July 22, 1997, p. 14.
---------------------------------------------------------------------------
That portion of Engel v. Vitale which held that the
government may not compose any official prayer or compel
joining in prayer would not be overturned by the RFA, \6\ but
RFA would overturn the portion of Engel which precludes
students from engaging in group classroom prayer even on a
voluntary basis. The prohibition on government-composed prayer
or imposition of prayer found in Abington School District v.
Schempp would not be disturbed.
---------------------------------------------------------------------------
\6\ During the Subcommittee markup of H.J. Res 78, the text was
amended so that the words ``initiate or designate'' were replaced with
the word ``prescribe.'' The purpose of this change was to make clear
that the government may not prescribe prayer either in the sense that
it direct that prayers occur (the initiative would need to come from
the students) nor may it ``prescribe'' prayer by mandating its content.
In a letter to supporters of H.J. Res. 78 dated July 14, 1997, Mr.
Istook explained the need for the amendment as follows: ``The concern
was that any role by a school teacher or principal or other agent to
accommodate student-sponsored prayer might be used to ban prayer . . .
and to argue that certain Supreme Court rulings were not in fact
reversed by the RFA. Some courts might then pursue detailed inquiry
into whether some conduct of a teacher (such as asking a class
president whether prayer was desired at graduation) `suggested' or
`tainted' matters, even though it did not `compel' prayer. We do not
wish to ban government accommodation, under a claim that such would be
`initiating,' but we want to be clear that government should not
prescribe prayer for students, nor the text of a prayer.''
---------------------------------------------------------------------------
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.
374 U.S. at 309.
In fact, Justice Stewart regarded permitting school prayer
as a necessary element of diversity:
[T]he 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.
Id. at 316-317.
In addition, Wallace v. Jaffree would be overturned so that
silent prayer would be permitted ``so long as there was no
government dictate either to compel that it occur, or to compel
any student to participate.'' \7\ As Chief Justice Burger
stated in his dissent in Wallace v. Jaffree:
---------------------------------------------------------------------------
\7\ Written Statement of Rep. Ernest Istook before the Subcommittee
on the Constitution. July 22, 1997, p. 9.
---------------------------------------------------------------------------
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.
472 U.S. at 85. Burger denounced the majority's conclusion that
the Alabama statute violated the principle of anti-
establishment:
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.
Id. at 89.
The RFA would prohibit a school from preventing a student
from engaging in religious expression on the same terms as non-
religious expression is allowed. Public school students would
have the right to pray on school grounds during the school day,
but students who did not wish to pray would be protected by the
language which prevents government from compelling
participation in prayer.
According to Justice Potter Stewart in his dissent in
Abington School District v. Schempp:
[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. And a
refusal to permit religious exercises thus is seen, not
as the realization of state neutrality, but rather as
the establishment of a religion of secularism, or at
the least, as government support of the beliefs of
those who think that religious exercises should be
conducted only in private.
374 U.S. at 313.
B. Graduation Prayer
With regard to graduation prayer, Justice Kennedy in the 5-
4 Lee v. Weisman decision concluded that the requirement that
students maintain respectful silence during a rabbi's prayer
was coercive because it created ``pressure, though subtle and
indirect . . . as real as any overt compulsion.'' 505 U.S. at
593. The standard articulated by Lee v. Weisman's slim majority
has been dangerous because it rests upon the proposition that
simple exposure to religious speech is so damaging that people
must be protected from it. Indeed, Justice Kennedy in the
majority opinion wrote: ``Assuming, as we must, that the
prayers were offensive . . .'' Id. at 594.\8\ Lee v. Weisman's
subjective standard permits a lone ``offended'' individual to
silence all others in a public place, thereby censoring their
religious expression.
---------------------------------------------------------------------------
\8\ Even pornography is granted a chance to be measured against
prevailing community standards; but prayer is assumed automatically to
be offensive.
---------------------------------------------------------------------------
The graduation prayers outlawed by Lee v. Weisman would be
permitted under the RFA as long as the government did not
require that prayer occur or seek to set forth the text of the
prayer. The RFA takes issue with Justice Kennedy's view, and
instead embodies the views of the four dissenting Justices, who
concluded that ``hearing'' is not ``participating'' and
``hearing'' is not ``joining'' in prayer, and thus there was no
coercion to pray. The RFA would employ a common sense standard
that no person can be compelled ``to join in prayer.'' \9\ The
RFA applies a neutral standard--that respect for religious
speech should be no less than the respect that is expected for
nonreligious speech. In dissenting to Lee v. Weisman's 5-4
ruling, Justice Scalia called the new ``psychological
coercion'' standard ``boundless, and boundlessly manipulable.''
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. Just as the RFA now does, Justice
Scalia and the other three dissenting justices distinguished
between being present and actually joining in a prayer:
---------------------------------------------------------------------------
\9\ Current law allows the government to hire a chaplain to offer
prayers at the opening of legislative sessions based on the practice's
``unique history'' and the lack of any evidence tending to show that
``the prayer opportunity [was] exploited to proselytize or advance any
one, or to disparage any other, faith or belief.'' Marsh v. Chambers,
463 U.S. 783, 794-95 (1983). The RFA, which states that ``neither the
United States nor any state shall . . . prescribe school prayers,'' is
intended to leave the holding in Marsh untouched because the
prohibition on the prescription of prayer only applies to prayer in
schools.
---------------------------------------------------------------------------
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'' (emphasis added) . . . 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.
505 U.S. at 636.
C. Equal Access for Religious Groups
Current law permits students to meet to engage in religious
speech on school grounds, subject to reasonable time, place,
and manner restrictions. Hedges v. Wauconda Community School
District, 9 F.3d 1295 (1993). In 1984, Congress enacted the
``Equal Access Act'' (P.L. 98-377, 20 U.S.C. Sec. Sec. 4071 et
seq.) which was intended to address widespread discrimination
against religious speech in public schools. The Equal Access
Act requires that public secondary schools receiving federal
funds allow student groups to meet for religious speech,
prayer, and Bible study on the same basis as other student
groups are allowed to meet. In Board of Education of Westside
Community Schools v. Mergens, 496 U.S. 226 (1990), the Supreme
Court held that the Equal Access Act did not violate the
establishment clause and upheld the act as constitutional.
Application of the Act, however, has been intensely disputed.
See Ceniceros v. San Diego Unified School District, 106 F.3d
878 (9th Cir. 1997) (involving challenge to use of room during
lunch time); Hsu v. Roslyn Union Free School District, 85 F. 3d
839 (2nd Cir. 1996), cert. denied, 117 S.Ct. 608 (1996)
(involving challenge to club with Christian-only officers
policy); Garnett v. Renton School District, 987 F.2d 641, (9th
Cir. 1993) cert. denied, 114 S.Ct. 72 (1993) (involving dispute
over school as open forum).
Current law, however, does not require that elementary
schools allow religious clubs to meet on the same terms as
nonreligious clubs (Bell v. Little Axe Independent School
District, 766 F.2d 1391 (10th Cir. 1985)) or that schools allow
private groups to conduct after-school religious instruction or
services. The Bronx Household of Faith v. Community School
District No. 10, 127 F.3d 207 (2nd Cir. 1997), cert. denied, 66
U.S.L.W. 3687 (1998); Full Gospel Tabernacle v. Community
School District No. 27, 979 F. Supp. 214 (S.D.N.Y. 1997).
The RFA would effectively bar discrimination against
religious clubs and organizations, and require that public
meeting places, including elementary school facilities, be made
available to them on the same basis as they are made available
to other groups.
II. Religious Expression on Public Property
A. Public displays
The Court has construed the establishment clause to
prohibit government from displaying religious symbols by
themselves on public property. Current law, however, does allow
privately-sponsored religious displays on public property as
long as the government does not foster or encourage the belief
that government is endorsing religion. Lynch v. Donnelly, 465
U.S. 668 (1984); Allegheny County v. American Civil Liberties
Union, 492 U.S. 573 (1989).
In Lynch v. Donnelly, the Supreme Court in a 5-4 decision
upheld a city's inclusion of a creche in a Christmas display in
a downtown park. Chief Justice Burger, writing for the
majority, stated that, ``[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 other illustrations of the
Government's acknowledgment of our religious heritage and
governmental sponsorship of graphic manifestations of that
heritage.'' 465 U.S. at 674 and 677.\10\
---------------------------------------------------------------------------
\10\ See also, ``Legal Analysis of H.J.Res. 78, the `Religious
Freedom Amendment,'' by David Ackerman, Congressional Research Service,
June 11, 1997, footnote 43.
---------------------------------------------------------------------------
In Allegheny County v. American Civil Liberties Union,
however, the Supreme Court in another 5-4 decision restricted
the display of a private creche on public property, citing a
need for better visual ``balance'' with secular emblems.
Justice Kennedy, concurring in part and dissenting in part,
reiterated the appropriateness of the acknowledgments listed by
Justice Burger, noting that ``government policies of
accommodation, acknowledgment and support for religion are an
accepted part of our political and cultural heritage'' 492 U.S.
at 657. (Chief Justice Rehnquist, and Justices White and Scalia
joined in this opinion.) Further, Justice Kennedy stated:
Rather than requiring government to avoid any action
that acknowledges or aids religion, the Establishment
Clause permits government some latitude in recognizing
and accommodating the central role religion plays in
our society. Lynch v. Donnelly, supra at 678; Walz v.
Tax Comm'n of New York City, supra, at 669. Any
approach less sensitive to our heritage would border on
latent hostility toward religion, as it would require
government in all its multifaceted roles to acknowledge
only the secular, to the exclusion and so to the
detriment of the religious. A categorical approach
would install federal courts as jealous guardians of an
absolute `wall of separation,' sending a clear message
of disapproval. In this century, as the modern
administrative state expands to touch the lives of its
citizens in such diverse ways and redirects their
financial choices through programs of its own, it is
difficult to maintain the fiction that requiring
government to avoid all assistance to religion can in
fairness be viewed as serving the goal of neutrality.
492 U.S. at 657-58. Justice Kennedy concluded:
In my view, the principles of the Establishment
Clause and our Nation's historic traditions of
diversity and pluralism allow communities to make
reasonable judgments respecting the accommodation or
acknowledgment of holidays with both cultural and
religious aspects. No constitutional violation occurs
when they do so by displaying a symbol of the holiday's
religious origins.
Id. at 679.
Most recently in Capitol Square Review Board v. Pinette,
115 S.Ct. 2440 (1995), Justice Scalia, held that a Ku Klux
Klan-sponsored display of a cross in an open public forum in
the square in front of the Ohio Capitol during the 1993
Christmas season was not an impermissible establishment of
religion. The plurality opinion, however, did not pronounce a
coherent standard for such a display's constitutionality.
Justices O'Connor, Ginsburg, Souter, Stevens, and Breyer
supported the view that religious displays on public property
are permissible only if the reasonable observer would not
perceive the display as a government endorsement of religion.
But Chief Justice Rehnquist and Justices Kennedy and Thomas
joined the portion of Justice Scalia's decision which stated
that, if the government applied an equal access policy to
privately-sponsored public displays, it would not matter what
the reasonable observer thought.
While public displays of religion are, under current law,
acceptable where they appear in an open forum, such as a
square, and are limited in duration, more permanent displays
have not been upheld, regardless of attempts to discourage the
impression or perception of government endorsement.\11\ Public
schools, for example, may not post the Ten Commandments. In
Stone v. Graham, the Supreme Court concluded that a law
requiring the posting of the Ten Commandments in public schools
was an unconstitutional establishment of religion. The Court
expressed concern that posting the Ten Commandments would
``induce the schoolchildren to read, meditate upon, perhaps to
venerate and obey, the Commandments.'' 449 U.S. at 39 (1980).
In addition, the Ninth Circuit has upheld a permanent
injunction forbidding the permanent presence of 3 crosses on
public property in San Francisco. Ellis v. City of La Mesa, 990
F.2d 1518 (9th Cir. 1993). Public displays of religious symbols
have been prohibited as violating the establishment clause,
including a cross on the seal of the City of Edmond, Oklahoma
and the removal of a cross in San Francisco which had been in a
public park for 65 years.
---------------------------------------------------------------------------
\11\ See discussion at Government Seals and Insignia, infra.
---------------------------------------------------------------------------
The RFA states, in part, that, ``the people's right to pray
and to recognize their religious beliefs, heritage, or
traditions on public property, including schools, shall not be
infringed.'' To the extent that this provision is read to apply
only to private religious expression, it is largely consonant
with, and not to alter, existing constitutional law. According
to its principal sponsor Representative Istook, however, the
RFA also seeks to reinstate the principle that:
``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 ordering inclusion of religious
symbols for constant or incessant display on public
property, because they would remain bound by the First
Amendment's prohibition on establishing a religion via
government. I stress that the Religious Freedom
Amendment is not intended to override the First
Amendment's prohibition on establishing any religion as
a state religion, or creating official status for any
set of beliefs. Nor would the RFA do so.\12\
---------------------------------------------------------------------------
\12\ Written Statement of Rep. Ernest Istook before the
Subcommittee on the Constitution. July 22, 1997, p. 11.
---------------------------------------------------------------------------
In testimony before the Subcommittee on the Constitution,
Representative Istook explained that the expected
implementation of this provision would require an approach that
allows all faiths, minority as well as majority, to be
included, so long as the inclusion does not mean advocating or
promoting any particular faith.\13\
---------------------------------------------------------------------------
\13\ Written Statement of Rep. Ernest Istook before the
Subcommittee on the Constitution. July 22, 1997, p. 13.
---------------------------------------------------------------------------
The RFA would overturn Allegheny County v. ACLU to the
extent that the display of a private creche on public property
requires secular symbols for better visual ``balance.'' The so-
called ``plastic reindeer'' test for holiday symbols on public
property would no longer be decisive. Instead, Allegheny County
would be brought back in line with Lynch v. Donnelly, which
permitted display of a government-owned Nativity scene.
The RFA would also overturn Stone v. Graham and allow, but
not require, the posting of the Ten Commandments on public
property as an expression of the religious beliefs, heritage,
or traditions of the people.
The key inquiry for public displays under the RFA would be
``whether symbols of differing faiths were afforded similar
opportunity for display during their special seasons'' and
``whether government sought to establish an official
religion.'' \14\ The intent of RFA is to establish true
neutrality by affording religious expression the same
protection as other expression.
---------------------------------------------------------------------------
\14\ Written Statement of Rep. Ernest Istook before the
Subcommittee on the Constitution. July 22, 1997, p. 12.
---------------------------------------------------------------------------
B. Government Seals and Insignia
The federal courts of appeal are split on whether religious
symbols on government seals and insignia are unconstitutional.
See, e.g., Wayne Robinson v. City of Edmond, 68 F.3d 1226 (10th
Cir. 1995), cert. denied, 517 U.S. 1201 (1996) (holding seal
with cross unconstitutional); Harris v. City of Zion and Kuhn
v. City of Rolling Meadows, 927 F.2d 1401 (7th Cir. 1991),
cert. denied, 112 S.Ct. 3054 (1992) (holding that depiction of
cross on seal creates impression that local government tacitly
endorses Christianity in violation of the establishment
clause); and Robinson v. City of Edmond, 68 F.3d 1226 (10th
Cir. 1995) (concluding that religious symbols on government
seals and insignia are in violation of the establishment
clause). But see Murray v. City of Austin, 947 F.2d 147 (5th
Cir. 1991) (ruling that religious symbols on government seals
and insignia are not in violation of the establishment clause).
The standard is whether an average observer would perceive the
government's use of religious symbols on its seals and insignia
to be an endorsement, but courts often disagree about the
perception of the average observer.
The RFA, on the other hand, would allow local governmental
seals to reflect the people's religious beliefs, heritage, and
traditions. The key inquiry for public displays under the RFA
would be ``whether government sought to establish an official
religion, rather than outlawing traditions from a public
forum.'' \15\ As stated above, the intent of RFA is to
establish neutrality in government's treatment of religion by
affording religious expression the same protection as other
expression.
---------------------------------------------------------------------------
\15\ Written Statement of Rep. Ernest Istook before the
Subcommittee on the Constitution. July 22, 1997, p. 12.
---------------------------------------------------------------------------
III. Equal Access to Government Benefits
Aid that does not flow directly to religious institutions
but initially to individuals has been upheld so long as the
initial recipients have had a genuinely free choice about where
to use the aid. Mueller v. Allen, 463 U.S. 388 (1983); Witters
v. Washington Department of Services for the Blind, 474 U.S.
481 (1986); Zobrest v. Catalina Foothills School District, 509
U.S. 1 (1993).
In Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819, 844 (1995), aid in the form of payments
to outside contractors on behalf of a religious student
publication was upheld because the funding program was neutral
toward religion, the payments were not made to the publication,
and the publication was not a religious institution ``in the
usual sense of that term as used in our case law.''
Finally, in Agostini v. Felton, 117 S. Ct. 1997 (1997),
the Supreme Court held that a federally funded program
providing supplemental, remedial instruction to disadvantaged
children on a neutral basis is not invalid under the
establishment clause when such instruction is given on the
premises of sectarian schools by government employees pursuant
to a program containing safeguards. Because the program ``does
not result in governmental indoctrination, define its
recipients by reference to religion, or create an excessive
entanglement,'' the program was found not to violate the
establishment clause. Id. at 2016.
In contrast with the reasoning found in Agostini,
Rosenberger, Zobrest and Witters, there is also a body of
Supreme Court precedent which prohibits the use of public funds
for ``specifically religious activities'' or by ``pervasively
religious'' organizations. Lemon v. Kurtzman, 403 U.S. 602
(1971); Hunt v. McNair, 413 U.S. 734 (1973). This line of cases
has been criticized recently, however, by Justice O'Connor who
stated in her concurrence in Bd. of Education of Kiryas Joel v.
Grumet, 512 U.S. 687, 717 (1994), that, ``the Religion Clauses
prohibit the government from favoring religion, but they
provide no warrant for discriminating against religion.''
The RFA states, in part: ``Neither the United States nor
any State shall . . . discriminate against religion, or deny
equal access to a benefit on account of religion.'' The
principle underlying this portion of the RFA was explained by
Professor Carl Esbeck in his testimony before the Subcommittee
on the Constitution:
When government provides benefits to enable
activities that serve the public good, such as
education, health care, or social welfare, there should
be no discrimination in eligibility based on religion.
Nor should religious schools and charities be required
to engage in self-censorship or otherwise have to water
down their religious character as a condition of
program participation. The religious-equality model
allows individuals and religious groups to participate
fully and equally with their fellow citizens in
American's public life, without being forced to either
shed or disguise their religious character or
convictions. Importantly, the theory is not a call for
preferential treatment for religion in the
administration of publicly funded programs. Rather,
when it comes to participation in programs of aid,
religious equality merely lays claim to the same access
to benefits, without regard to religion, enjoyed by
others.\16\
---------------------------------------------------------------------------
\16\ Written Testimony of Professor Carl Esbeck, Professor of Law,
University of Missouri, before the Subcommittee on the Constitution,
July 23, 1996, p. 3.
---------------------------------------------------------------------------
Some opponents of the Amendment have argued that it would
require the government to fund private religious institutions
on the same basis as it supports public programs. Because the
government funds public schools, for example, it would also be
required to support private religious schools. This argument
misreads the purpose and effect of the amendment. As explained
by David Ackerman in the Congressional Research Service,
``Legal Analysis of H.J.Res. 78, the `Religious Freedom
Amendment:' ''
The proposal does not, it should be noted, appear to
mandate the extension of benefits to religious
institutions where the benefits are otherwise
restricted to public institutions. The subsidy of
public schools, for instance, would not seem to trigger
a requirement of comparable funding of private
sectarian schools. Only where other private entities
are eligible participants or recipients would religious
entities have to be included and comparably
treated.\17\
---------------------------------------------------------------------------
\17\ ``Legal Analysis of H.J.Res. 78, the `Religious Freedom
Amendment,' '' by David Ackerman, Congressional Research Service, June
11, 1997, p. 8.
---------------------------------------------------------------------------
Some people object to the idea of allowing religious
individuals and institutions to participate in publicly-funded
programs. Participation by religious people, they argue, will
allow taxpayer dollars to support religious ideas and values
with which they do not agree in violation of their religious
freedom. This objection is valid only when funding is provided
to a religious activity or for a religious purpose on a
preferential basis. In contrast, the RFA says that when
government funds private groups to perform a valid secular
purpose, it cannot prevent religious groups from participating
on an equal basis. The principle of equality underlying this
aspect of the amendment was explained by Professor Michael
McConnell in his testimony before the Constitution Subcommittee
in June of 1995:
[I]t is argued that it would violate the religious
freedom of taxpayers to compel them to support schools
or other activities propagating ideas in which the
taxpayer does not believe. But this is a valid
objection only when funding is provided to a religious
activity on a preferential basis, because it is a
religious activity. That is what the battle over
disestablishment among our founders was about. The
principle has no application when the government funds
a wide variety of private groups, for a secular
purpose, and religious groups are included on a neutral
basis. No one suggests that churches or synagogues
should be denied the valuable benefits of police, fire
protection, roads, sewers, or tax benefits, on an equal
basis with other property and other nonprofit
institutions. There is no principled reason to deny a
similar equality to citizens who choose religious
schools or the services of other religious
institutions. Justice Brennen stated the principal well
in his plurality opinion in Texas Monthly, Inc. v.
Bullock, `Insofar as [a] subsidy is conferred upon a
wide array of nonsectarian groups as well as religious
organizations in pursuit of some legitimate secular
end, the fact that religious groups benefit
incidentally does not deprive the subsidy of the
secular purpose and primary effect mandated by the
Establishment Clause.' The underlying requirement is
one of neutrality.\18\
---------------------------------------------------------------------------
\18\ Written testimony of Professor Michael McConnell, William B.
Graham Professor of Law, University of Chicago Law School, before the
Subcommittee on the Constitution, June 8, 1995, pp. 16-17.
---------------------------------------------------------------------------
In sum, the provisions of the RFA would apply where a state
enacts a program of aid that funds all private and public
schools, for example, but explicitly disqualifies participation
by religious providers. Should a state decide to provide
support only to government-operated schools, however, such a
decision would not violate the RFA.
The RFA is in keeping with the principles underlying
Agostini, Rosenberger, Zobrest and Witters. Under the RFA,
government aid or a government program would still need to
serve a secular purpose such as education or drug treatment. As
long as sectarian institutions are considered on an equal basis
with non-sectarian institutions and with other sectarian
institutions they will be eligible to receive government
funding, even funding made directly to the institutions.
Hearings
The Subcommittee on the Constitution held five days of
hearings on ``Religious Liberty and the Bill of Rights'' on
June 8, 10, and 23, and July 10 and 14, 1995; a hearing on
``Legislation to Further Protect Religious Freedom'' on July
23, 1996; and a hearing on H.J. Res. 78: ``Proposing an
Amendment to the Constitution of the United States Restoring
Religious Freedom'' on July 22, 1997.
On June 8, 1995, testimony was received from the following
witnesses: Representative Ernest J. Istook, Jr., U.S. House of
Representatives, 5th District, Oklahoma; Michael Stokes
Paulsen, Professor, University of Minnesota Law School; Norman
Redlich, Attorney, Watchell, Lipton, Rosen & Katz; Michael
McConnell, William B. Graham Professor of Law, University of
Chicago Law School; Dr. Derek H. Davis, Director, J.M. Dawson
Institute of Church-State Studies, Baylor University; William
Ball, Counsel, Ball, Skelly, Muffen & Connell.
On June 10, 1995, at a field hearing held in Harrisonburg,
Virginia, testimony was received from the following witnesses:
Colby May, Attorney, American Center for Law and Justice; C.
Dow Chamberlain, Interfaith Center for Public Policy; Reverend
William Wilson, Pastor, First Baptist Church of Waynesboro; Dr.
Charles G. Fuller, Pastor, First Baptist Church of Roanoke; Ron
Rosenberger, Former student, University of Virginia; Professor
Robert Alley, Professor of Humanities, University of Richmond;
Jason Nauman, Former Student Council President, Spotswood High
School; Audrey Pearson, Student, accompanied by her mother,
Mrs. Ellen Pearson; Craig L. Parshall, Attorney; Ray Gingerich,
Professor of Bible and Church History, Eastern Mennonite
College; Kelly Shackelford, Adjunct Professor, University of
Texas School of Law.
On June 23, 1995, at a field hearing held in Tampa,
Florida, testimony was received from the following witnesses:
Matthew D. Staver, Attorney, Stavers & Associates; Reverend
Henry Green, Pastor, Heritage Community Church; Amber Johnston-
Leohner, Student, accompanied by her mother, Marian Johnston-
Loehner; Jennifer Greene, Student; Reverend Marcia Free,
President, Hillsborough Clergy Association; Dr. Charles W.
Spong, Director for Distance Education, Southeastern College of
the Assemblies of God; Rebecca Fiore, Student, accompanied by
her mother April Fiore; Delano S. Stewart, Attorney, Stewart,
Joyner, Jordan-Holmes, Holmes; Joshua Burton, Student,
accompanied by his father Mark Burton; Robert Rosenthal,
President, American Jewish Committee, Sarasota Chapter; A. Eric
Johnston, Attorney, Trippe & Brown.
On July 10, 1995, testimony was received from the following
witnesses: His Eminence, John Cardinal O'Connor; Reverend Dr.
James Forbes, Jr., Senior Minister, The Riverside Church;
Father Richard John Neuhaus, President, Institute on Religion
and Public Life; Rabbi Arthur Hertzberg, Rabbi Emiritus, Temple
Emmanuel; Rabbi Mayer Schiller, Author and Lecturer; Mrs. Lisa
Herdahl, Ecru, Mississippi; Mr. Joseph P. Infranco, Attorney,
Migliore and Infranco, P.C.
On July 14, 1995, at a field hearing held in Oklahoma City,
Oklahoma, testimony was received from the following witnesses:
Representative Ernest J. Istook, Jr., U.S. House of
Representatives, 5th District, Oklahoma; William J. Murray,
Author and Editor, Al Edwards, Texas House of Representatives,
District No. 146; Scott Armey, Commissioner, Denton County,
Texas; Shannon Welch, High School Valedictorian; Ron Barber,
Attorney, Barber & Bartz; Lyn Whittingham, Private citizen;
Greg Schwab, father of student, Audrey Schwab; Dr. Lavonn D.
Brown, Pastor, First Baptist Church in Norman, Oklahoma; Miss
Shanda Bontempi, Oklahoma City School Student; Richard L.
Christensen, Assistant Professor of Church History, Phillips
Theological Seminary; Dr. Sandra Rana, mother of a student in
Tulsa Public School.
On July 23, 1996, testimony was received from the following
witnesses: Representative Ernest J. Istook, Jr., U.S. House of
Representatives, 5th District, Oklahoma; Anna Doyle, mother of
six, accompanied by daughters Katie and Rebecca, Rhode Island;
Brother Bob Smith, Principal, Messmer High School, Milwaukee,
Wisconsin; Reverend Elenora Giddings Ivory, Director,
Washington, D.C. Office, Presbyterian Church, U.S.A.; Dr.
William A. Donahue, President, Catholic League for Religious
and Civil Rights; Dr. Anne L. Bryant, Executive Director,
National School Boards Association; Jay Alan Sekulow, Chief
Counsel, American Center for Law and Justice; Forest
Montgomery, Counsel, Office for Governmental Affairs, National
Association of Evangelicals; Reverend Oliver S. Thomas, Special
Counsel, National Council of Churches; Dr. Richard Land,
President, Christian Life Commission, Southern Baptist
Convention; Rabbi A. James Rudin, Director of Interreligious
Affairs, American Jewish Committee; Carl H. Esbeck, Isabell
Wade & Paul C. Lydia Professor of Law, University of Missouri;
Reverend Lou Sheldon, Chairman, Traditional Values Coalition;
Carole Shields, President, People for the American Way; Craig
Parshall, Attorney, Concerned Women for America; Reverend Barry
W. Lynn, Executive Director, Americans United for Separation of
Church and State; Gregory Baylor, Assistant Director, Center
for Law and Religious Freedom, Christian Legal Society.
On July 22, 1997, testimony was received from the following
witnesses: Representative Ernest J. Istook, Jr., U.S. House of
Representatives, 5th District, Oklahoma; Representative Chet
Edwards, U.S. House of Representatives, 11th District, Texas;
Representative Tom Campbell, U.S. House of Representatives,
15th District, California; Representative Walter Capps, U.S.
House of Representatives, 22nd District, California;
Representative Sanford Bishop, U.S. House of Representatives,
2nd District, Georgia; Craig Parshall, Special Legal Counsel,
Concerned Women for America; Reverend Barry W. Lynn, Executive
Director, Americans United for Separation of Church and State;
Jim Henderson, Senior Counsel, American Center for Law and
Justice; Dr. Derek H. Davis, Director, J.M. Dawson Institute of
Church-State Studies; Mark Scarberry, Professor of Law,
Pepperdine University School of Law; William Murray, Americans
for School Prayer; Reverend Timothy McDonald, Iconium Baptist
Church; Rabbi Aryeh Spero, Congregational Rabbi.
Committee Consideration
On October 27, 1997, the Subcommittee on the Constitution
met in open session and ordered favorably reported the
resolution H.J. Res. 78, as amended by an amendment in the
nature of a substitute offered by Mr. Hutchinson, by a vote of
8 to 4, a reporting quorum being present.
On March 4, 1998, the Committee met in open session and
ordered reported favorably the resolution H.J. Res. 78, as
amended by an amendment in the nature of a substitute ordered
reported by the Subcommittee, by a recorded vote of 16 to 11, a
reporting quorum being present.
Votes of the Committee
The Committee considered the following amendments.
Rollcall Vote No. 1
An amendment by Mr. Scott to delete that portion of the
Resolution that would permit religious organizations to have
equal access to the same benefits made available to private
non-religious groups. The amendment was defeated by a 9-14
rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Canady
Ms. Jackson-Lee Mr. Inglis
Mr. Meehan Mr. Buyer
Mr. Wexler Mr. Bryant (TN)
Mr. Rothman Mr. Chabot
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Mr. Graham (SC)
Rollcall Vote No. 2
An amendment by Ms. Jackson-Lee to delete the reference in
the Resolution to the people's right to ``acknowledge God'' and
replace it with the people's right to ``freedom of religion.''
The purpose of the amendment was to delete a reference to
``God'' in the Resolution. The amendment was defeated by a 7-18
rollcall vote.
YEAS NAYS
Mr. Conyers Mr. Hyde
Mr. Nadler Mr. Sensenbrenner
Mr. Scott Mr. McCollum
Ms. Jackson-Lee Mr. Coble
Ms. Waters Mr. Smith (TX)
Mr. Meehan Mr. Gallegly
Mr. Delahunt Mr. Canady
Mr. Inglis
Mr. Buyer
Mr. Bryant (TN)
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Mr. Watt
Ms. Lofgren
Mr. Wexler
Mr. Rothman
PRESENT
Mr. Graham (SC)
Rollcall Vote No. 3
Final Passage. Mr. Hyde moved to report H.J. Res. 78
favorably, as amended by an amendment in the nature of a
substitute ordered reported by the Subcommittee, by a recorded
vote of 16 to 11.*
YEAS NAYS
Mr. Hyde Mr. Conyers
Mr. Sensenbrenner Mr. Frank
Mr. McCollum Mr. Nadler
Mr. Coble Mr. Scott
Mr. Smith (TX) Mr. Watt
Mr. Gallegly Ms. Jackson-Lee
Mr. Canady Ms. Waters
Mr. Inglis Mr. Meehan
Mr. Goodlatte Mr. Delahunt
Mr. Buyer Mr. Wexler
Mr. Bryant (TN) Mr. Rothman
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Mr. Graham (SC)
*Ms. Lofgren, who was absent on official business,
indicated, had she been present, she would have voted NAY.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the resolution, H.J.Res. 78, the
following estimate and comparison prepared by the Director of
the Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 9, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.J. Res. 78, a joint
resolution proposing an amendment to the Constitution of the
United States restoring religious freedom.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Susanne S.
Mehlman (for the federal costs), who can be reached at 226-
2860, and Leo Lex (for the state and local impact), who can be
reached at 225-3220.
Sincerely,
June E. O'Neill, Director.
Enclosure.
cc: Hon. John Conyers, Jr.,
Ranking Minority Member.
H.J. Res. 78--A joint resolution proposing an amendment to the
Constitution of the United States restoring religious freedom
H.J. Res. 78 would propose amending the Constitution to
secure people's rights to religious freedom. The legislatures
of three-fourths of the states would be required to ratify the
proposed amendment within seven years for the amendment to
become effective.
CBO estimates that adopting this amendment would result in
no significant cost to the federal government. Because
enactment of H.J. Res. 78 would not affect direct spending or
receipts, pay-as-you-go procedures would not apply.
CBO is uncertain whether section 4 of the Unfunded Mandates
Reform Act of 1995 (UMRA), which excludes from consideration
under that act any bill or joint resolution that enforces
constitutional rights of individuals, applies to H.J. Res. 78.
If the joint resolution is not excluded from consideration
under UMRA, uncertainties about how it would be interpreted and
implemented make it impossible to determine whether it would
impose any intergovernmental mandates and what the costs of any
such mandates might be. The joint resolution would impose no
private-sector mandates.
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for the federal costs), who can be reached at 226-
2860, and Leo Lex (for the state and local impact), who can be
reached at 225-3220. This estimate was approved by Robert A.
Sunshine, Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to Rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article V of the Constitution.
Article V of the United States Constitution provides that
the Congress has the authority to propose amendments to the
Constitution. Such proposed amendments must be approved by two-
thirds vote of both Houses. Congress must also specify whether
the ratification process is to be done through State
legislatures or by State conventions. In either case, a
proposed amendment must be ratified by three-fourths of the
State legislatures or State conventions. H.J. Res. 78 calls for
ratification by State legislatures.
Legislative Analysis
H.J.Res. 78 proposes to reinforce the people's right to
acknowledge God according to the dictates of conscience, to
protect the people's right to religious expression on public
property, and to prohibit the government from denying religious
people or organizations the ability to participate in
government programs, activities, or benefits.
The RFA is proposed to clarify that the supreme law of the
land protects the religious freedom rights against infringement
by state as well as federal governmental actions. The RFA is
proposed to correct adverse court decisions that have resulted
in the weakening of constitutional protection for the freedom
of religion, as previously discussed in the Background and Need
for the Legislation section.
The RFA allows voluntary prayer (and other religious
activity) in public schools and religious expression on public
property, but forbids any mandatory participation or prescribed
prayers. The RFA does not create an absolute right to
protection of religious expression, such as a right to disrupt
class by spontaneously offering a prayer, just as the First
Amendment does not protect the right to disrupt class by
expressing speech of a different content. Neither the federal
government nor the state government could, however, prescribe
prayer or direct or dictate the content of the prayer under the
RFA. Religious symbols and religious expression would no longer
be suspect when they occur on public property under the RFA.
The ``benefits'' language in the RFA does not guarantee any
benefit to any person or group. Rather, it provides that
government may not deny to a religious person or organization
the ability to apply for a benefit to the same extent that the
benefit is made available to other private people or
organizations. The portion of the Amendment requiring ``equal
access to a benefit on account of religion'' will ensure that
government programs be administered without discrimination on
the basis of religion.
Dissenting Views to H.J. Res. 78
Introduction
H.J. Res. 78 \1\--the sixth constitutional amendment
scheduled for a floor vote so far this Congress--represents a
continuation of an unprecedented assault on our Constitution
and our civil liberties.
---------------------------------------------------------------------------
\1\ H.J. Res. 78 provides, ``[t]o 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.''
---------------------------------------------------------------------------
Though short, this Amendment effectively destroys the First
Amendment while doing nothing to protect against government
discrimination against religion that the Constitution does not
already do. The First Amendment Free Exercise Clause and the
Establishment Clause,\2\ as well as the Fourteenth Amendment
Equal Protection Clause \3\ already clearly and effectively
prohibit the government from discriminating against religion.
---------------------------------------------------------------------------
\2\ The First Amendment to the Constitution provides ``Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.'' The former the ``Free Exercise
Clause,'' and the latter is the ``Establishment Clause.'' U.S. CONST.
amend. I, cl.1.
\3\ The Equal Protection Clause of the Fourteenth Amendment
provides ``No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.'' U.S. Const. amend.
XIV, Sec. 1, cl. 4.
---------------------------------------------------------------------------
The most likely effect of H.J. Res. 78 is to allow coercive
religious activities by government in general and public
schools in particular, and to mandate that the government fund
religion in the same manner it funds secular activities, paving
the way for public support of parochial schools and other
religious causes. The result will be the defunding, if not the
elimination of public education in this country.
While many proponents of H.J. Res. 78 claim it is ``pro-
religion,'' their argument is undercut by the significant
number of religious organizations that oppose this
Constitutional Amendment.\4\ It is, in fact, because we are so
concerned about the need to protect religious liberty that we
vigorously oppose H.J. Res. 78 and dissent from its adoption.
---------------------------------------------------------------------------
\4\ Religiously affiliated organizations opposing this Amendment
include: American Baptist Churches, U.S.A., American Jewish Committee,
American Jewish Congress, Americans for Religious Liberty, Americans
United for Separation of Church and State, Anti-Defamation League,
Baptist Joint Committee on Public Affairs, B Nai Brith, Central
Conference of American Rabbis, Church of the Brethren Washington
Office, Church State Council of Seventh-day Adventists, the Episcopal
Church, Friends Committee on National Legislation, General Board of
Church & Society, United Methodist Church, General Conference of
Seventh-day Adventists, Hadassah, the Interfaith Alliance, Interfaith
Religious Liberty Association, Jewish Council for Public Affairs,
Jewish Labor Committee, the Jewish Reconstructionist Federation, Jewish
Women International, Lutheran Office for Governmental Affairs of the
Evangelical Lutheran Church in America, Mainstream Loudoun, Mennonite
Central Committee Washington Office, Muslim Public Affairs Council,
National Council of Churches of Christ in the U.S.A., National Council
of Jewish Women, National Council on Islamic Affairs, National Jewish
Democratic Council, Presbyterian Church Washington Office, Rabbinical
Assembly, Reconstructionist Rabbi Association, Soka Gakki International
U.S.A., Southern Christian Leadership Conference, Union of American
Hebrew Congregations, United Church of Christ Office for Church in
Society, the United Synagogue of Conservative Judaism, Unitarian
Universalist Association, Women of Reform Judaism the Federation of
Temple Sisterhoods, Women's American ORT, and the Women's League for
Conservative Judaism.
---------------------------------------------------------------------------
I. The First Amendment Has Fostered Widespread Religious Liberty and
Diversity
Religion is alive and well in America today. According to
the annual Pew survey on the state of religion in America, 71%
of those polled ``never doubted'' the existence of God; 61%
believe that miracles come ``from the power of God;'' and 53%
believe in daily prayer.\5\ Notably, all of these figures have
risen by double digits since 1987.\6\ Moreover, a recent study
conducted by the University of Michigan shows that weekly
worship in the United States exceeds that in any other
industrialized nation. We worship more than twice as often as
the French and nearly twice as much as the British.\7\
---------------------------------------------------------------------------
\5\ Frank Rich, Let Them Not Pray, N. Y. Times, Jan. 7, 1998, at
A21.
\6\ Id.
\7\ Id.
---------------------------------------------------------------------------
More specifically, a 1994 Gallup poll shows that 96% of all
Americans believe in God; 69% of Americans are members of a
church or synagogue, 42% attended a church or synagogue within
the past 7 days, 58% say that religion is ``very important ''in
their life, and 62% believe that religion ``can answer all or
most of today's problems.'' \8\
---------------------------------------------------------------------------
\8\ George Gallup, Jr., Religion in America; Religion in America,
Will the Vitality of Churches be the Surprise of the Next Century?, 6
The Public Perspective, No. 6, October/November 1995.
---------------------------------------------------------------------------
II. The First Amendment Was Never Intended to Permit Government
Entanglement with Religion
Supporters of H.J. Res. 78 contend that the courts have
consistently misinterpreted the framers' intentions in creating
the First Amendment in the Bill of Rights, resulting in the
suppression of religion. The majority argues that the framers
intended only that no one single religion be preferred over
others, but that the framers had no intention of prohibiting
government aid to all religions or to religion on a
nonpreferential basis. In truth, convinced that government
meddling with religion produces intolerance, persecution and
bloodshed, the Founders outlined a process of checks and
balances to protect life, liberty and property, not to save
souls or make men moral and good.\9\ An analysis of the history
of the Establishment Clause demonstrates this intent.
---------------------------------------------------------------------------
\9\ Isaac Kramnick and R. Laurence Moore, In Godless We Trust; Why
the Founding Fathers Created a Religion-Free Political Order, and Why
We Shouldn't Change It, W. Post, Jan. 14, 1996, at C1.
---------------------------------------------------------------------------
In Europe, an establishment of religion meant a state
church: one church exclusively enjoying the benefits of a
formal, legal union with the state.\10\ It was the church of
the state and attendance at its services was often compulsory
and all subjects, even dissenters paid for its support.\11\ In
this country, the political debate at the time the First
Amendment was adopted was not between those who wanted to
support religion and those who did not. At the Constitutional
Convention, it had already been decided not to give the federal
government any power to deal with religion.\12\ The issue faced
by the first Congress was how to define a prohibition so that
no future Congress would assume an authority that had not been
provided in the Constitution.\13\ For this reason, the language
did not say ``Congress shall make no law establishing
religion,'' but instead reads: ``Congress shall make no law
respecting an establishment of religion.'' This clear language
cannot be construed as authorizing Congress to support
religious institutions.\14\ It defies logic to suppose that an
amendment expressly designed to prohibit a power never given to
Congress in the Constitution should be construed as creating
the authority to enact laws benefitting religion
financially.\15\
---------------------------------------------------------------------------
\10\ Leonard W. Levy, The Establishment Clause, How Does the
Constitution Protect Religious Freedom?, 69 (Robert A. Goldwin and Art
Kaufman eds. 1987).
\11\ Id.
\12\ John M. Swomley, Religious Liberty and the Secular State: The
Constitutional Context, 44-45 (1987).
\13\ Id. at 45.
\14\ Id. at 49.
\15\ Id.
---------------------------------------------------------------------------
Some argue that the word establishment really means
preferment, and that the First Amendment is therefore against
preferential aid to churches, but not against aid itself. Yet
when considering the Amendment, the Senate rejected the idea
that establishment is preferment by voting against all attempts
to limit the meaning of establishment to the concept of
preference.\16\ It did not thereby imply that nonpreferential
aid is acceptable.
---------------------------------------------------------------------------
\16\ Id. at 51.
---------------------------------------------------------------------------
In the House, when a prohibition on a single national
establishment of religion was proposed, it was rejected in
Committee and repudiated on the floor. The author of the
proposal withdrew it and the House then adopted a motion that
``Congress shall make no laws touching religion. . . .'' \17\
No consideration was ever given to preferential aid to religion
because the First Amendment does not empower Congress. Rather,
it denies Congress any power to vote laws respecting an
establishment of religion.\18\
---------------------------------------------------------------------------
\17\ Id. at 52.
\18\ Id. at 51.
---------------------------------------------------------------------------
In essence, the unamended Constitution vests no power over
religion and the First Amendment vests no power at all. The
framers believed that no limitations on the government's power
over religion was necessary because the government possessed
only delegated authority plus the authority necessary to
execute the delegated powers, leaving the government entirely
without authority over religion.\19\ Therefore, even in the
absence of the First Amendment, the government is powerless to
enact laws benefitting religion, with or without
preference.\20\
---------------------------------------------------------------------------
\19\ Levy, supra note 10, at 84.
\20\ Id.
---------------------------------------------------------------------------
The history of the Constitution clearly refutes those who
argue that the Constitution was designed to perpetuate a
Christian order and that the separation of church and state is
a myth created by the heretical left. Those concerned with the
absence of a reference to a deity in the Constitution knew it
then. The anti-Federalist opponents of the Constitution
attacked it and its infidel sponsors. One of the most damning
criticisms of the Constitution during the ratification debates
was ``its cold indifference towards religion.'' \21\
---------------------------------------------------------------------------
\21\ Kramnick and Moore, supra note 9.
---------------------------------------------------------------------------
III. Congress Has Wisely Rejected Altering the First Amendment in the
Past
Congress has taken a number of statutory actions to protect
religion, but has wisely rejected efforts to amend the
Constitution. Over time Congress has contemplated many measures
to address the school prayer issue including constitutional
amendments; \22\ limitations on federal court jurisdiction;
\23\ equal access proposals; \24\ appropriations riders; \25\
the cutoff of funds; \26\ and Sense-of-the-Congress
resolutions.\27\ In addition, Congress modified two Senate-
passed funds cutoff proposals to the ``Goals 2000: Educate
America Act'' in 1994 to bar funds under the Act from being
used by state or local educational agencies ``to adopt policies
that prevent voluntary prayer and meditation in public
schools.'' \28\
---------------------------------------------------------------------------
\22\ These proposals have taken a variety of forms and have been
the subject of numerous hearings. The Senate has voted four times on
such measures (in 1966, 1970, and twice in 1984) and the House once (in
1971). But only the in Senate vote in 1970 did a constitutional
amendment garner the two-thirds majority necessary for adoption, and
that vote was perceived less as a vote on school prayer than as a vote
to kill the measure to which the school prayer amendment was attached--
the Equal Rights Amendment.
\23\ In every Congress from the 93rd through the 103rd, proposals
were introduced to strip the federal courts of all jurisdiction over
cases involving the school prayer issue. Several hearings were held on
the proposals, and the Senate voted in favor of such a measure in 1979.
Subsequently, however, the Senate rejected such proposals by
increasingly wide margins in 1982, 1985, and 1988.
\24\ The Supreme Court's 1981 decision in Widmar v. Vincent, gave
impetus to Congressional proposals to ensure the student-initiated
religious groups at the high school level the same extracurricular
rights and privileges as non-religious student groups. 454 U.S. 263
(1981). Several hearings were held on the subject, and in 1984 Congress
enacted into law the ``Equal Access Act.'' Pub. L. 98-377, Title VIII
(AUG. 11, 1984); 98 Stat. 1302-04; 20 U.S.C. Sec. 4071-74 (1997).
\25\ Beginning in 1980 efforts were made to attach riders to the
appropriations acts for the Department of Education barring the use of
funds to prevent the implementation of programs of voluntary prayer and
meditation in the public schools. Neither the House nor the Senate has
ever taken a recorded vote on the matter, but the rider (known as the
Walker amendment) has been included in all of the measures funding the
Department of Education since fiscal 1981.
\26\ Since 1984 both the House and Senate have voted on amendments
to cut off federal education funds from any state or local educational
agency that prevents individuals from participating in voluntary
prayer. Such proposals have been approved twice in both the House (in
1989 and 1994) and the Senate (both in 1994), and rejected once in each
body (in 1984 in the house, in 1994 in the Senate.) A limited version
of the proposal--the Kassebaum amendment--was enacted into law in 1994
as part of the ``Improving America's Schools Act of 1994.'' Pub. L.
103-382, Title XIV, Sec. 14510 (Oct. 20, 1994); 108 Stat. 3518; 20
U.S.C. Sec. 8900.
\27\ A number of resolutions have been introduced since Engel, that
would express Congress' view on what devotional activities in the
public schools remain permissible under the Court's decisions. The
resolutions have sometimes been perceived as an alternative to a
constitutional amendment, but they have not won extensive support. The
Senate rejected two such proposals in 1966 while adopting one in 1994,
but the latter proposal was deleted in conference.
\28\ P.L. 103-227, Title X, Sec. 1011 (March 31, 1994); 108 Stat.
265; 20 U.S.C. Sec. 6061.
Although able to avoid a constitutional amendment or the
elimination of federal court jurisdiction over the issue of school
prayer, Congress has not been able to avoid any legislation on this
issue. Congress has enacted (1) a requirement that public secondary
schools which receive federal financial assistance afford student-
initiated religious, philosophical, and political groups the same
opportunity to meet during the school day as is afforded other student-
initiated extracurricular groups (the Equal Access Act, 20 U.S.C.
Sec. 4071-74); (2) a prophylactic rider to the appropriations acts for
the Department of Education, added since fiscal 1981, providing that
none of the funds may be used to prevent the implementation of programs
of voluntary prayer and meditation in the public schools; (3) an
amendment to the ``Goals 2000: Educate America Act'' barring state and
local educational agencies from using funds under the Act to adopt
policies that prevent voluntary prayer and meditation in public
schools; and (4) an amendment to the ``Improving America's Schools Act
of 1994'' cutting off federal education funds to any state or local
education agency that refuses to abide by a court decision holding it
in violation of the constitutional right of a student with respect to
prayer in the public schools.
---------------------------------------------------------------------------
The Senate has voted only four times on constitutional
amendments concerning school prayer: in 1966,\29\ 1970 \30\ and
twice in 1984.\31\ Only the 1970 constitutional amendment
garnered the two-thirds majority necessary for adoption and
that vote was considered less as a vote on school prayer than
as a vote to kill the measure to which the amendment was
attached--the Equal Rights Amendment.\32\
---------------------------------------------------------------------------
\29\ In the 89th Congress (1965-1966), the Senate was forced to
vote on a constitutional amendment to reverse the Supreme Court's
holding in Engle v. Vitale, 370 U.S. 421 (1962), banning school
sponsored prayer. 112 Cong. Rec. 23556 (Sept. 21, 1966).
\30\ 116 Cong. Rec. 36478-36505 (Oct. 13, 1970).
\31\ 130 Cong. Rec. 5733 (March 15, 1984); 130 Cong. Rec. 5619
(March 20, 1984).
\32\ See supra note 30.
---------------------------------------------------------------------------
Last Congress, the Constitution Subcommittee held 6
separate hearings on religious liberty and the bill of rights.
These hearings concerned the general question of religious
liberty with the last of those hearings, on July 26, 1996,
focusing on a constitutional amendment proposed by Congressman
Armey. Congressmen Hyde and Istook also introduced
Constitutional Amendments related to religious rights. None of
these proposals were ever marked up in Committee and, in fact,
the only House floor vote related to school prayer was over 25
years ago in 1971.\33\
---------------------------------------------------------------------------
\33\ 117 Cong. Rec. 39886-39958 (April 5, 1979).
---------------------------------------------------------------------------
IV. Current Law Allows Wide Toleration of Religious Practices
Present jurisprudence with respect to the Establishment
Clause and Free Exercise Clause already include a carefully
balanced set of rules to try to settle the tension between a
religious (or nonreligious) people's need to express their
religion, and at the same time be free from a Government which
seeks to compel religion, either religion generally or a
particular religion. Supporters of the Congressman Istook's
approach to amending the Constitution have repeatedly told
stories of ordinary citizens who have been victimized by a
state authority: bibles taken, religious expression squelched,
songs altered, pamphlets torn up and the like. The supporters
have used these examples as indicative of the need for an
amendment to the Constitution that will stop such alleged
violations.
To the extent problems may exist in the implementation of
what is admittedly complex jurisprudence, the answer to the
supporters stated concerns is not another amendment to the
Constitution, which guarantees more litigation, but rather more
education about what the existing rules permit. Careful
reflection upon existing rules reveals that significant
religious activity is already permitted in this nation, both in
and out of schools.
In an effort to make clear what is and what is not
permitted in the public schools, numerous religious groups
worked together to craft Religion in the Public Schools: A
Joint Statement of Current Law.\34\ The pamphlet explains what
student prayers and what graduation prayers are permissible. It
also explains that teachers may not engage in religious
activities with their students, and explains that students may
be taught about religion without being taught religion itself.
The pamphlet also covers homework and religion, the
distribution of religious literature, religious persuasion
versus religious harassment, religious holidays, the excusal of
students from religiously objectionable lessons, religious
attire, moral values and the Equal Access Act.
---------------------------------------------------------------------------
\34\ This pamphlet was drafted by the American Jewish Congress,
American Civil Liberties Union, American Jewish Committee, American
Muslim Council, Anti-Defamation League, Baptist Joint Committee,
Christian Legal Society, General Conference of Seventh-day Adventists,
National Association of Evangelicals, National Council of Churches,
People for the American Way, and the union of Hebrew Congregations. In
addition, the following organizations have endorsed the pamphlet:
American Ethical Union, American Humanist Association, Americans for
Religious Liberty, Americans United for Separation of Church and State,
B Nai Brith International, Christian Science Church, Church of the
Brethren Washington Office, Church of Scientology International,
Evangelical Lutheran Church in America, Federation of Reconstructionist
Congregations and Havurot, Friends Committee on National Legislation,
Guru Gobind Singh Foundation, Hadassah, Interfaith Alliance, Interfaith
Impact for Justice and Peace, National Council of Jewish Women,
National Jewish Community Relations Advisory Council, National
Ministries--American Baptist Churches U.S.A., National Sikh Center,
North American Council for Muslim Women, Presbyterian Church (USA),
Reorganized Church of Jesus Christ of Latter Day Saints, Unitarian
Universalist Association of Congregations, United Church of Christ.
---------------------------------------------------------------------------
Based on this pamphlet, on August 10, 1995, United States
Department of Education Secretary Richard W. Riley sent out a
``statement of principles'' to the nation's school
superintendents. This statement provides school officials with
guidance, describing the extent to which religious expression
and activities are permitted in public schools. The statement
goes into depth explaining that schools may not forbid students
who act on their own from expressing personal religious views
or beliefs solely because they are of a religious nature, and
that schools may not endorse religious activity or doctrine,
nor may they coerce participation in religious activities.\35\
---------------------------------------------------------------------------
\35\ Memorandum from Richard W. Riley, Secretary, U.S. Dept. Of
Education, Religion in Public Schools (August 10, 1995) (on file with
Committee).
---------------------------------------------------------------------------
A. Religion/Prayer in School
The Supreme Court has addressed the issue of school prayer
numerous times, effectively holding that the Establishment
Clause \36\ prohibits government from using the public schools
directly or indirectly to inculcate religious beliefs. At the
same time the Court has been careful to permit free religious
expression and protect religious freedom. Starting with Engel
v. Vitale \37\ in 1962 the Court struck a New York School
Board's requirement that students join in prayer composed by
the Regents. The Court stated that ``[g]overnment must maintain
strict neutrality, neither aiding nor opposing religion'' and
``it is no part of the business of government to compose
official prayers for any group of the American people to recite
as part of a religious program carried on by government.'' \38\
---------------------------------------------------------------------------
\36\ Relying mostly on the Lemon test: to pass muster under the
establishment clause, government action involving religious must be
shown to have a primarily secular purpose, to have a primary effect
other than the advancement of religion, and not to lead to excessive
entanglement between government and religion. Lemon v. Kurtzman, 403
U.S. 202 (1971).
\37\ 370 U.S. 421 (1962).
\38\ 370 U.S. at 425.
---------------------------------------------------------------------------
Neither may the government sponsor or promote devotional
exercises, teach or inculcate the precepts or prohibitions of
any particular sect or dogma, or permit outside parties to give
religious instruction to students during the school day on the
public school premises. In Abingdon School District v.
Schemp,\39\ the Court specifically disallowed State sponsorship
of daily devotions, which involve oral readings from the Bible
and the unison recital of the Lord's Prayer, notwithstanding
that students who objected could be excused from participating
and that the practices were claimed not to promote religion but
to inculcate morality.\40\
---------------------------------------------------------------------------
\39\ 374 U.S. 203 (1963).
\40\ 374 U.S. at 223.
---------------------------------------------------------------------------
Wallace v. Jaffree \41\ held the government may give
objective instruction about religion in the public schools and
provide for religiously neutral moments of silence, permit
students to engage in private non-disruptive prayer during the
school day, and pose no barrier to organized student-initiated
religious clubs under the Equal Access Act.\42\
---------------------------------------------------------------------------
\41\ The Court struck an Alabama statute providing for a moment of
silence at the beginning of each school day for purposes of
``meditation or voluntary prayer.'' The Court did not strike moments of
silence en toto. Alabama had another law permitting a moment of silence
for ``meditation,'' so this law, to the Court, was ``for the sole
purpose of expressing the State's endorsement of prayer activities for
one minute at the beginning of each school day.'' ``The legislative
intent to return prayer to the public schools is, of course, quite
different from merely protecting every student's right to engage in
voluntary prayer during an appropriate moment of silence during the
schooldays. The 1978 statute already protected that right. . . .'' 472
U.S. 28, 49 (1985).
\42\ Widmar v. Vincent, 454 U.S. 263 (1981) (The Court has
permitted student initiated and student led groups to use school
facilities for religious purposes (students at public university have
free speech right to use campus facilities for religious meetings on
same basis as other students).); Board of Education of Westide
Community Schools v. Mergens, 496 U.S. 226 (1990) (extension of Widmar
principle to federally assisted secondary schools in the Equal Access
Act is constitutional. ``There is a crucial difference between
government speech endorsing religion and private speech endorsing
religion. We think that secondary school students are mature enough and
are likely to understand that a school does not endorse or support
student speech that it merely permits on a nondiscriminatory basis,''
Id. at 242).
---------------------------------------------------------------------------
In addition, the Court has declined certiorari in Jones v.
Clear Creek Independent School District,\43\ in which the 5th
Circuit upheld as constitutional a school policy that permitted
the graduating senior class to choose volunteers from among
themselves to give ``nonsectarian, nonproselytizing invocations
at their graduation ceremonies.'' The 5th Circuit said the
purpose and primary effect of the policy was ``to solemnize
graduation ceremonies'', not to advance religion.\44\ The
policy did not endorse prayer, the court said, but merely
passively permitted it.\45\
---------------------------------------------------------------------------
\43\ 977 F.2d 963 (5th Cir. 1992), cert. den., 61 U.S.L.W. 3819
(1993). However, the Court has held unconstitutional the inclusion of a
clergy-led invocation and benediction in a public school's graduation
ceremony, Lee v. Weisman, 505 U.S. 577 (1992), finding that ``at a
minimum, the Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise, the
prayer exercises in this case are especially improper because the State
has in every practical sense compelled attendance and participation in
an explicit religious exercise at an event of singular importance to
every student.'' Id. at 587.
\44\ 977 F.2d at 967.
\45\ The Ninth Circuit had a contrary result in Harris v. Joint
School District No. 241, 41 F.3d 447 (9th Cir. 1994), in which the
court struck down a school policy that permitted the graduating class
to determine whether or not to have an invocation and benediction and
to choose who would deliver them, stating, ``when the senior class is
given plenary power over a state-sponsored, state controlled event such
as high school graduation, it is just as constrained by the
Constitution as the state would be.'' Id. at 455. Harris was dismissed
on technical grounds by the Supreme Court, and remanded to the Ninth
Circuit with directions to dismiss as moot. Joint School District No.
241 v. Harris, 515 U.S. 1154 (1995).
---------------------------------------------------------------------------
In sum the case law indicates that the right of students to
pray is protected. The majority would have us focus on a few
isolated cases in an effort to demonstrate the need for a
Constitutional Amendment allowing school prayer. A review of
those cases is instructive.
Often cited is the case of Kelley DeNooyer. In December
1990, DeNooyer's parents sued officials at McKinley Elementary
School in Livonia, Michigan after DeNooyer's teacher refused to
allow the second grader to show a tape of herself singing a
religious song, as part of a verbal presentation about herself.
The teacher rejected the tape because she felt the tape would
undermine the point of the exercise, which was to make to
students feel comfortable giving speeches. She also said that
the school has a policy requiring that all tapes be reviewed
before being used in class. Finally, she felt the tape's
religious content was inappropriate. The Sixth Circuit Court of
Appeals ruled that public school teachers and administrators,
not students, are the proper agents to determine classroom
content and assignments.\46\ Thus, the case was more about
teacher control of the classroom than religious freedom.
---------------------------------------------------------------------------
\46\ DeNooyer v. Merinelli, 1993 U.S. App. LEXIS 30084, reh'g en
banc denied, 1993 U.S. App. LEXIS 36723 (6th Cir. 1993), cert. denied,
511 U.S. 1031 (1994).
---------------------------------------------------------------------------
Another case to which the majority has sometimes referred
is that of Brittney Settle Gossett. In 1991, Settle (now
Gossett) sued the Dickson County Tennessee School Board after
she was given a failing grade on a report she had written about
Jesus Christ. The teacher had assigned each student in the
ninth grade class to write a research paper on an unfamiliar
topic, using four outside sources. Settle initially told the
teacher she would do her paper on drama, but later asked to
switch to the life of Christ. The teacher rejected the new
topic saying Settle knew too much about it. Settle wrote the
paper anyway and received a zero for ignoring the teacher's
instructions. Both the federal district court and the Sixth
Circuit Court of Appeals examined the facts and ruled in favor
of the school, noting that Settle had no constitutional right
to ``do something other than [the teacher's] assignment and
receive credit for it.'' The Supreme Court denied
certiorari.\47\
---------------------------------------------------------------------------
\47\ Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir.
1995), cert. denied, 516 U.S. 989 (1995).
---------------------------------------------------------------------------
Brad Hicks, a former police officer in Newton, North
Carolina was fired in April 1996 after he disobeyed the police
chief's order to stop handing out gospel tracts while on duty.
The police chief first learned of the problem when a woman whom
Hicks had pulled over for speeding complained. Before being
terminated, Hicks was placed on suspension and told he could
keep his job if he stopped proselytizing while on duty; he
refused.\48\
---------------------------------------------------------------------------
\48\ Officer Who Gave Gospel Tracts to Speeders Fired, Kingston
Free Press, April 12, 1996.
---------------------------------------------------------------------------
Perhaps the only case to which the majority might even
reasonably point as a case in which someone's rights were
initially violated is a1989 incident in which Audrey Pearson's
mother contacted the conservative legal group, the Rutherford
Institute, after her daughter was told to stop reading a Bible
on a public school bus in Prince William County, Virginia. The
principal had not understood that students are permitted to
bring religious material to school for their personal use and
the decision was reversed when the Institute contacted the
school. The matter never went to court. Thus, this matter was
easily resolved by a simple phone call. A Constitutional
Amendment appears to be overkill when a simple phone call can
suffice to remedy a problem.
B. Benefits
Generally, governments may not provide financial assistance
to religious institutions. However, there are many exceptions
to this rule, most of which follow the Lemon test that any
statute that has the incidental effect of aiding religion must:
(a) have a secular purpose; (b) have a principle or primary
effect that does not advance or inhibit religion; and (c) not
give rise to an excessive entanglement between government and
religion.\49\ For example:
---------------------------------------------------------------------------
\49\ Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
---------------------------------------------------------------------------
Public funds may be used to: (1) transport children to
religious schools; \50\ (2) buy textbooks for kids in sectarian
schools, if the books are purely secular and approved by public
school authorities; \51\ (3) pay for psychological and speech
diagnostic services by state personnel in private schools (a
``public health service'' that has ``little or no educational
content''), and therapeutic and remedial education services by
state employees off the site of the religious school; \52\ (4)
pay for a signing interpreter to work with an eligible hearing
impaired student at a sectarian school under the Education of
All Handicapped Children Act, although it was important to the
Court that the interpreter did nothing more than report what
was said by others; \53\ and (5) construct buildings and other
facilities at church related colleges, if it is clear that the
construction is for facilities that will not be used for
sectarian instruction or for religious worship.\54\
---------------------------------------------------------------------------
\50\ Everson v. Board of Education, 330 U.S. 1 (1947).
\51\ Board of Education v. Allen, 392 U.S. 236 (1968).
\52\ Wolman v. Walter, 433 U.S. 229 (1977).
\53\ Zobrest v. Catalina Foothills School District, 113 S. Ct. 2462
(1993).
\54\ Tilton v. Richardson, 403 U.S. 672 (1971).
---------------------------------------------------------------------------
Public funds may not be used to (1) subsidize the teaching
of secular subjects in religious schools (as opposed to the
sign interpreting, for example),\55\ or (2) provide
unrestricted maintenance and repair grants to religious
elementary and secondary schools.\56\
---------------------------------------------------------------------------
\55\ Lemon v. Kurtzman, 403 U.S. 602.
\56\ Pearl v. Nyquist, 413 U.S. 756 (1973).
---------------------------------------------------------------------------
The Court at one time had also prohibited the remedial
instruction of special needs students (with Title I funds) in
religious schools.\57\ This precedent, however, was overruled
this past term by Agostini v. Felton,\58\ which held that
federally paid public school teachers may offer remedial
education inside parochial schools. Agostini declared Title I
Services permissible in private religious schools because the
instruction offered is secular in nature and is oversee by
public school personnel.
---------------------------------------------------------------------------
\57\ Aguilar v. Felton, 473 U.S. 402 (1973).
\58\ 1997 U.S. LEXIS 4000 (June 23, 1997).
---------------------------------------------------------------------------
V. H.J. Res. 78 Would Unsettle the Law and Unbalance the First
Amendment
Contrary to majority's view that H.J. Res. 78 will clarify
and protect religious freedom, it seems far more likely to
unsettle the law, cause confusion and result in greater numbers
of violations of religious rights.
A major problem with the Amendment is that it is so poorly
drafted that no one is certain as to what it actually does.
Even conservative Christian organizations and professors have
voiced concerns over the language of this Amendment. In a
letter to Chairmen Canady and Hyde, a well-known and highly
respected conservative law professor from the University of
Utah, Michael McConnell, recommended against adopting this
Amendment, pointing out that it is ``questionable that a
constitutional amendment is needed in order to achieve the
legitimate objectives of the proposed Amendment.'' Professor
McConnell also pointed out that ``there are serious problems
with the drafting of this particular proposal'' referring to
the proposal's ``confusion and ambiguity.'' \59\ The main
question is whether or not the Amendment actually does
anything.\60\
---------------------------------------------------------------------------
\59\ Letter from Michael McConnell, Professor, University of Utah
School of Law to Henry J. Hyde, Chairman of the Comm. on the Judiciary,
U.S. House of Rep., and Charles T. Canady, Chairman of Subcomm. on
Constitution, U.S. House of Rep. (July 21, 1997) (on file with the
Committee).
\60\ Professor McConnell points out three major problems with the
Amendment: (1) it is unclear to what ``the people's right to pray''
refers--whether this means the people collectively or as individuals or
private groups--if the latter it is irrelevant and if the former there
is a question as to what limits, if any, will be placed on the
government's right to ``recognize'' religion; (2) it appears that the
proposed protection is intended to create a right for religious speech
that is superior to any free speech right people already have on public
property, which would result in discrimination in favor of religious
speech over all other speech; and (3) the relevance of the proposed
amendment to prayer in public school is unclear--either the Amendment
simply recognizes the same free speech rights that already exist for
all speech or the Amendment will replicate all of the problems of
governmental power over the content of prayer and at the same time
allow significant classroom disruption. Id.
---------------------------------------------------------------------------
One possible interpretation of H.J. Res. 78 is that the
language which states that the right to pray shall not be
infringed upon may simply mean that no student may be
prohibited from praying during lunch. In this case, the
amendment is harmless (and meaningless) and merely ``codifies''
Supreme Court cases to the same effect. If the Amendment does
anything, however, and we must assume it is intended to change
the law in some way, its effects are clearly deleterious.
A. Effect on Prayer
Because H.J. Res. 78 authorizes prayers in captive audience
situations, it will interfere with the rights of parents to
raise their children according to their own religious faith.
Congressman Istook has claimed that if parents do not want
their children to listen to prayers over the intercom, they are
incorrectly assuming that the prayer is harmful. But that
depends on the religion of the child and the content of the
prayer. All prayers are not acceptable to all parents. Yet this
Amendment would require all children, regardless of faith to
recite a particular prayer.
Moreover, the language of the proposed Amendment does not
specify the time or place of the prayer. This could mean
schools will be required to allow prayers whenever and wherever
a student so desires. This may mean that if a student decides,
on his or her own initiative, during the middle of history
class, to begin praying aloud and asks others to join him or
her, the teacher is prohibited from stopping this. In addition,
students could be permitted to read sectarian prayers over the
intercom system and teachers might proselytize during class
time.
Further, since H.J. Res. 78 is not limited to schools but
applies to all public property, anyone would conceivably have a
right to interrupt proceedings in connection with government
activities such as a debate on the floor of the House of
Representatives, an ongoing court case, or a police training
class by praying audibly.
The greatest problem, however, will be one of coercion. The
Amendment clearly authorizes coercive practices. If a public
school teacher can lead her class in a prayer before a test or
a football player feels pressured to join in a team prayer
before a game, that is coercion. Yet these activities are
authorized by the Amendment. If H.J. Res. 78 becomes the law of
the land, we can expect to see more of egregious cases like
these:
(1) Fellow students called a Salt Lake City sophomore
a ``Dirty Jew'' and ``Jew Bitch'' when she objected to
having to sing Christian songs in her public high
school choir class and at the school's graduation
ceremony.\61\
---------------------------------------------------------------------------
\61\ Bauchman v. Wes High School, Civil Action No. 95-4084 (1995).
---------------------------------------------------------------------------
(2) A mother in Pontotoc County, Mississippi objected
to her five children being subjected to school prayer
over the intercom and in classroom and Bible classes in
their public school. When her eleven year old left his
classroom prior to religious Bible class, his teacher
stated aloud words to the effect that ``David doesn't
believe in God. People who believe in God go to Bible
class--those who don't, don't go to Bible class.''
Another son's teacher made him wear headphones during
the school's organized prayers. His classmates called
him ``football head'' and ``baseball head.'' \62\
---------------------------------------------------------------------------
\62\ Herdahl v. Pontotoc County School Dist., Civil Action No.
3:94CV188-B-A (1994) (intercom and classroom prayers enjoined April 18,
1995).
---------------------------------------------------------------------------
(3) An eleven year old Jewish student was reprimanded
by a teacher for not praying during a moment of
silence. The teacher told the student he ``should be
praying all the time,'' and if he did so, he might ``go
to heaven with all the Christians'' instead of ``going
[to Hell] with all the other Jews'' if he didn't pray.
Other students told the boy his religion was ``stupid''
and another asked why they were even talking to the boy
since ``the Jews weren't worth saving because they had
killed Christ.'' \63\
---------------------------------------------------------------------------
\63\ Walter v. West Virginia Bd. Of Educ., 610 F. Spp. 1169, 1172
(D. W.VA. 1985).
---------------------------------------------------------------------------
(4) Two Oklahoma students who did not attend
religious meetings on school campus were labeled
``nonbelievers'' by some of their classmates. After a
lawsuit, their family received threatening letters and
the children were called ``devil worshipers.'' The
family's house was also destroyed by a fire of
suspicious origins.\64\
---------------------------------------------------------------------------
\64\ Bell v. Little Axe Independent School District No. 70, 766
F.2d 1391, 1396-97 (10th Cir. 1985).
---------------------------------------------------------------------------
(5) A thirteen year-old Jewish girl said she was
``threatened and jostled by classmates'' after she
complained about Christmas decorations and religious
caroling at her school in Concord, New Hampshire. One
classmate told her ``Christmas is about peace and
love'' before shoving her into a locker.\65\
---------------------------------------------------------------------------
\65\ Jewish Student Reports Threats After Complaint over Christmas,
N.Y. Times, December 25, 1993, at A3.
---------------------------------------------------------------------------
(6) A Native American member of a high school
marching band objected to the practice of pre-game
invocations delivered at home football games. The band
director proceeded to lecture him on Christianity.\66\
---------------------------------------------------------------------------
\66\ Jager v. Douglas County School District, 862 F.2d 824, 826
(11th Cir. 1989).
---------------------------------------------------------------------------
It appears that the demise of public education and the
creation of a ``Christian nation'' are exactly what the
religious right has in mind when advocating this Constitutional
Amendment. Pat Robertson has spoken in favor of ending public
education. He has stated ``[f]or all we've been getting for our
tax dollars out of the public schools, they should have
disappeared years ago.'' So long as we have standards that
ensure that our goals of quality education are achieved, then
the very idea of maintaining an antiquated and ineffective
public education system is absurd.\67\ In fact Mr. Robertson
has gone on to declare that because the public schools ``take
your tax money and insist on forcing your children to learn a
philosophy that is contrary to what you believe very deeply . .
. then the public schools are illegal nationwide . . .'' \68\
---------------------------------------------------------------------------
\67\ Pat Robertson, The Turning Tide 239 (1993).
\68\ Pat Robertson, The 700 Club, (The Family Channel television
broadcast, Nov. 23, 1982).
---------------------------------------------------------------------------
Others on the religious right agree. Reverend Jerry Falwell
said: ``I hope to see the day when, as in the early days of our
country, we won't have any public schools. The churches will
have taken them over again and Christians will be running
them.'' \69\ Randall Terry has claimed that he is ``in full
support of Christian teachers being missionaries in public
schools, living and testifying to Christ. However, we should
keep our children out and ultimately seek to sink the current
public education fiasco and replace it with voucher, parent
choice education.'' \70\
---------------------------------------------------------------------------
\69\ Rev. Jerry Falwell, America Can be Saved 52-53 (1979).
\70\ Randall Terry, Why Does a Nice Guy Like Me Keep Getting Thrown
in Jail? 169 (1993).
---------------------------------------------------------------------------
B. Effect on Benefits
Another problem with H.J. Res. 78 is that the language
prohibiting the government from ``deny[ing] equal access to a
benefit on account of religion'' undercuts the Establishment
clause entirely and would allow the government to fund
programs, even programs with a non-secular bent, sponsored by
religious organizations. In other words, so long as the
government is funding an organization or activity, religious
organizations or individuals would be entitled to receive the
same benefits. This means that if a public school received
taxpayer funds, so too would religious schools be entitled to
public funds. Similarly, if a secular social service agency
contracted with the government to perform certain counseling
services, then a house of worship that runs a religiously-based
counseling service would also be entitled to receive a
government contract.
In a March 24, 1997 press release, Congressman Istook cites
examples of the kinds of court decisions his Amendment would
reverse. Most are cases where governments (not private citizens
or churches) were endorsing one religion over another, such as
placing a city-owned cross in a park. Even religious
conservatives have expressed concerns that this amendment would
allow the government to slide from neutral acknowledgment to
religious favoritism.\71\ Under the pretext of acknowledgment,
not only could a city place a nativity scene in a courthouse,
it could also post photos of the Dalai Lama in every classroom
or require New Age philosophy to be taught at all grade levels.
It would also follow, therefore, that in California, if members
of the Wiccan religion, which practices witchcraft, proposed to
open a pre-school, they too would be eligible to receive
taxpayer money to run their school. In fact, in 1993, before
the unsuccessful voter referendum on school tuition vouchers,
one such group had already announced its intention to seek such
support.\72\
---------------------------------------------------------------------------
\71\ McConnell letter, supra note 59; Memorandum from Steven T.
McFarland, Director, Center for Law and Religious Freedom (June 27,
1997) (on file with Committee).
\72\ Hearing on H.J. Res. 78: ``Religious Freedom Amendment''
Before the Constitution Subcommittee, 105th Congress (July 22, 1997)
(statement of Rev. W. Barry Lynn, Executive Director of Americans
United for Separation of Church and State).
---------------------------------------------------------------------------
Similarly, two years ago, the Department of Housing and
Urban Development used federal funds to hire Nation of Islam
Security, Inc. to patrol public housing projects. At the time,
several members of Congress expressed concern that federal tax
dollars were being used to subsidize religious proselytizing by
the Nation of Islam guards.\73\ H.J. Res. 78, however, actually
requires the government to contract with the Nation of Islam if
HUD grants are available to other groups.
---------------------------------------------------------------------------
\73\ Republican Congressmen Peter King and Rick Lazio as well as
then-Senate majority leader Senator Bob Dole all attacked the Clinton
Administration for allowing Nation of Islam affiliated groups to
contract with the Department of Housing and Urban Development. Charles
v. Zehren, Farrakhan Units Probed by HUD, Newsday, January 19, 1995 at
A8.
---------------------------------------------------------------------------
In addition, religious organizations are sometimes exempted
from laws that apply to others. For example, religious
institutions can make discriminatory decisions about whom to
hire on the basis of religion; other businesses may not.\74\
While restaurants and hotels have to comply with the Americans
with Disabilities Act, churches do not.\75\ If all access is to
be equal, then the special dispensations we allow religious
organizations may be called into question, even nullified.
---------------------------------------------------------------------------
\74\ 42 U.S.C. 2000e-1(a).
\75\ 42 U.S.C. 12113(c) (exempting religious corporations from 42
U.S.C. 12182-the public accommodations portion of the American with
Disabilities Act).
---------------------------------------------------------------------------
Finally, once government starts funding religion, people
will reasonably want public accountability as to how the funds
are spent. With government funding of a school or welfare
program run by a religious institution will come government
entanglement and scrutiny that religious organizations are
unlikely to welcome. Furthermore, religions will be competing
against one another for scarce government resources.
Governments will be forced to fund more than 2,000 religious
denominations that exist in this country or pick and choose
among religions, creating competition and animosity between
religious groups.
VI. Relevance of Religious Freedom Restoration Act
Although not directly relevant, this past term the Supreme
Court also decided the case of Boerne v. Flores,\76\ which held
the Religious Freedom Restoration Act (``RFRA'')
unconstitutional. In Boerne, the Court held that Congress
exceeded the scope of its enforcement power under section 5 of
the Fourteenth Amendment when it created RFRA in response to a
previous Supreme Court case,\77\ to prevent neutral laws from
burdening religion without compelling justification.
Congressman Istook has claimed that his amendment would remedy
the Court's Boerne decision.
---------------------------------------------------------------------------
\76\ ____ U.S. ____,117 S.Ct. 2157 (1997).
\77\ Employment Div. Dept. Of Human Resources of Ore. v. Smith, 494
U.S. 872 (1990).
---------------------------------------------------------------------------
There are at least two responses to this argument. First,
the Boerne decision is best remedied by statute. If Congress
had demonstrated the ``congruence and proportionality between
the injury to be prevented or remedied and the means adopted to
that end,'' \78\ RFRA might not have been held
unconstitutional. A new statute might also rely on Congress'
spending, commerce or treaty power. Moreover, Congressmen Hyde
and Canady are currently working on a statutory solution to the
Boerne decision and they have previously stated that they
believe a Constitutional amendment is premature.\79\
---------------------------------------------------------------------------
\78\ ____ U.S. at ____, 117 S.Ct. at 2157.
\79\ Hearing on Protecting Religious Freedom after Boerne v. Flores
Before the Subcomm. on Constitution of the House Comm. On Judiciary,
105th Cong. 42, 61 (1997) (statements of Subcommittee Chairman Canady
and Committee Chairman Hyde).
---------------------------------------------------------------------------
Second, Boerne does not involve the Establishment Clause
(it relied on the Free Exercise Clause), which is the section
that would be most affected by the Istook amendment. The
solution to solving the Court's ``attack'' on the Free Exercise
Clause in Boerne can hardly be to undermine the protections
afforded to religious liberty in the Establishment Clause as
the Istook language clearly does.
Conclusion
H.J. Res. 78 is poor policy and poorly conceived. We would
expect that when undertaking something as serious and
consequential as amending the Constitution of the United
States, at the very least the drafters would understand the
effects of that proposed Amendment and would ensure that the
Amendment was clear and unambiguous. We are dismayed that the
Committee could adopt a Constitutional Amendment that the
majority's own experts deride as ``unacceptable'' \80\ in light
of the Amendment's glaring ambiguities and inconsistencies.
---------------------------------------------------------------------------
\80\ McConnell Letter, supra note 59.
---------------------------------------------------------------------------
Moreover, we are deeply troubled over the notion of
amending the First Amendment, which has stood as a bulwark of
our democratic system of government. The freedom of religion
established by the First Amendment is one of the fundamentals
on which our country was founded. Religious freedom separates
our country from all others and has worked to protect our
citizens' freedom for over 200 years. Now is not the time to
alter the constitutional structure which underlies this
freedom.
John Conyers, Jr.
Charles E. Schumer.
Robert C. Scott.
Maxine Waters.
William D. Delahunt.
Steven R. Rothman.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
Robert Wexler.
Additional Dissenting Views OF Congresswoman Zoe Lofgren
For over 200 years, the First Amendment has guaranteed
Americans the freedom to practice their various religious
beliefs, free from both government establishment of religion
and government interference in its free exercise. The current
proposal tampers with those freedoms, with unpredictable
consequences.
Our current system has given us a country that leads the
world in religious freedom. The First Amendment originated as
part of the great American experiment in democracy. It has been
successful beyond the dreams of the founders. Far from needing
modification, the First Amendment deserves our continuing
support.
The First Amendment to the United States Constitution ranks
with the Magna Carta, the Declaration of Independence, and
other major documents through which mankind has attempted to
govern itself. It is remarkable that some apparently believe
that we can better the works of the founding fathers of this
country and the tested wisdom of 200 years of freedom, and
craft a better First Amendment that the one that currently
graces our Constitution and our nation.
I pray that the United States Congress will have the good
sense not to interfere with our successful scheme of religious
freedom under law.
Zoe Lofgren.