SPEAKERS CONTENTS INSERTS
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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RESTORING RELIGIOUS FREEDOM
TUESDAY, JULY 22, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:15 a.m., in room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, Jerrold Nadler and Melvin L. Watt.
Also present: Kathryn Lehman, chief counsel; Melanie Sloan minority counsel; John Ladd, counsel; Keri Harrison, counsel; Michael Connolly, staff assistant; and Brett Shogren, staff assistant.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. This morning, the subcommittee once again convenes to consider a proposed constitutional amendment to allow school prayer and to remedy discrimination against religious expression by religious individuals and institutions.
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In the summer of 1995, the Subcommittee on the Constitution held a number of field hearings across the United States on the subject of religious liberty and the Bill of Rights. In the course of those hearings and during a hearing conducted in 1996, the subcommittee heard compelling testimony from individuals complaining that they had been singled out for adverse treatment because of their religion. A clear pattern of discriminatory treatment emerged. A pattern of discrimination based on ignorance and animosity toward men and women of faith.
In Harrisonburg, Virginia, we heard from Ellen Pearson and her daughter Audrey. Ms. Pearson took 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. Jason Nauman testified that while he was student council president, his classmates voted to have him deliver the keynote commencement address. 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.
In Tampa, Florida, we heard from students who were told they could not carry a Bible to school, could not mention God or prayer in their commencement address, and could not invite classmates to a church-sponsored harvest fest celebration that was being held as an alternative to Halloween trick or treating. Dr. Charles Spong, Director for Distance Education of the Southeastern College of the Assemblies of God testified that since 1989, the college had participated in a government program to provide U.S. military and their families non-traditional education leading to a bachelor of arts degree. In January 1995, the college was abruptly informed that it could no longer participate in the program because students enrolled in the program, like all students who attended the college were required to sign a statement of faith. As Dr. Spong testified, ''We agree that no member of the military should be forced to indicate adherence to specific religious tenets. At the same time, there is no defensible reason for precluding their voluntary affirmation of religious convictions.''
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At our hearing in New York City, His Eminence Cardinal O'Connor testified that confronted with many hostile Supreme Court rulings, we find local jurisdictions, executive, legislative and judicial and administrative, gravely and sometimes outrageously increasing the burden on the programs the archdiocese runs to serve the poor and disadvantaged of New York City.
During the hearing in Oklahoma City, we heard from Lyn Whittington, who filed suit in Federal court when as a public employee, she was forbidden by the Government from attending Bible studies during non-work hours. Last summer, we heard compelling testimony during a hearing here in Washington from Mrs. Anna Doyle, who told us how public school officials confiscated rosaries that her daughter Katherine had made for her friends. We also heard from Brother Bob Smith, the president of Messmer High School, a private Catholic school in Milwaukee, Wisconsin. His school sought to take advantage of a State voucher program to allow low income inner-city students to attend schools of their choice, but were denied because they were pervasively religious. Brother Bob pointed out that Milwaukee public schools had a dropout rate of 50 percent, with the average grade of graduates being a D+. In contrast, 98 percent of the students at Messmer graduate and 85 percent of those go onto college.
These are just a few examples of the problems that have been brought to the attention of this subcommittee. The record is compelling. Government entities are often hostile toward religious speech and expression, effectively censoring religious ideas and expression because of their content. In addition, qualified faith-based institutions are prevented from participating in programs to provide education or social services simply because of their religious character. These are matters that no one should belittle or dismiss. These are matters that this Congress can not ignore.
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H.J. Res. 78 introduced by Representative Ernest Istook seeks to address many of these problems. It states, and I quote the amendment in its entirety. ''To secure the people's right to acknowledge God according to the dictates of conscience, the people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The Government shall not require any person to join in prayer or other religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.''
I want to commend Representative Istook for his efforts and his commitment in addressing this issue. I appreciate the work that others have put into developing this amendment as well. We look forward to hearing the testimony from the proponents of the amendment as well as the others who are scheduled to testify with us this morning.
Representative Scott, you are recognized.
Mr. SCOTT. Thank you, Mr. Chairman. Here we are once again considering an amendment to the United States Constitution. I like the Constitution, but this is the seventh time in the 7 months of this Congress that we have considered an amendment to the United States Constitution. We have considered the balanced budget amendment constitutional amendment, the term limits constitutional amendment, campaign finance reform constitutional amendment, tax limitation constitutional amendment, victims rights constitutional amendment, flag constitutional amendment. Now in the seventh month of this Congress, the seventh constitutional amendment that we have considered, the Istook amendment. I hope that at one point in this Congress, we can agree that we like the Constitution and cease our attempts to amend it.
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The amendment we are now considering is touted by supporters as the restorer of religious freedom. Nothing could be further from the truth. First of all, we already have religious freedom. Freedom has existed for over 200 years in the form of the First Amendment to the United States Constitution and the Bill of Rights. Unfortunately, the words that protect us all from religious persecution are the words that our Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. That amendment is under attack by the so-called religious restoration amendment.
As a former member of the Virginia General Assembly, I take particular pride in Virginia's religious freedom tradition. This country's very first religious freedom statute was drafted by Thomas Jefferson and enacted by the Virginia General Assembly in response to a failed system of Government sanctioned religious practices, very similar to that which would occur if this amendment is ratified. The mistakes made and corrected in Virginia became the foundation for religious freedoms included in the United States Constitution, and it is because of these freedoms that we have enjoyed centuries of peace free from religious divisions that continue to mar the lives of millions of people across the globe.
If H.J. Res. 78 is ratified, it will recklessly disrupt the religious tranquility we have appreciated for hundreds of years. Language in the proposed amendment which ends the church-state separation by allowing religious groups to be directly funded by the Government is particularly troublesome. What happens when the Catholics must compete with the Baptists for limited school funding? How much safer as a society will we be if only people that practice certain religions are able to get treatment for drug addictions? Which religious groups would and would not be funded? How much better off would churches be once they become dependent on Government funding? I look forward to hearing the answers to some of these questions at today's hearing.
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In addition, I look forward to hearing today's witnesses shed some light on the legal state of school prayer. The problem with this amendment is that the amendment strips the individual of his or her right to pick his or her own prayer. No one should be forced against their will to submit to the religious belief of others simply because they attend a public school, visit a courthouse or work for a Government agency. We should be very wary of disrupting the complex and delicate balance established with regard to school prayer. Despite the assertions of the amendment's proponents, school prayer is alive and well. In fact, a broad coalition of religious and civil liberties groups, including both proponents and opponents of the Istook amendment prepared a document entitled Religion in Public Schools, a Joint Statement of Current Law, to make it clear that religious expression is permitted in schools. In addition, the U.S. Department of Education has issued guidelines on religious expression that have been mailed to 15,000 school districts. So once again, we may be seeking to solve a problem that does not exist.
So I look forward to hearing from all of the witnesses at today's hearing. To the witnesses, your time and effort is greatly appreciated.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman. I don't have a prepared statement. I really didn't intend to talk, on the premise that I never learn anything while I am talking. But I do want to respond to the remarks of my good friend, Mr. Scott, who perfectly expressed a point of view with which I have many disagreements.
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We all like the Constitution. We love the Constitution. We don't worship it, but we love it. But it is the interpretation of the Constitution by the U.S. Supreme Court with which we quarrel. Fortunately or unfortunately, their decisions are a part of the Constitution. To sit in Congress and watch decision after decision go past, which we in our consciences, in our minds, believe to be a distortion of the intent of the founding fathers, a distortion of the intent of those who ratify the Constitution and the amendments, is to abandon our responsibility. Dred Scott, Roe v. Wade, Planned Parenthood v. Casey, there is a litany of cases with which many of us take comprehensive disagreement with. So that's why we have to sometimes consider amendments to the Constitution. Not that we didn't like or don't like the text, but it is the interpretation of the Constitution that bothers us. So fortunately, the Constitution permits amendments.
So we avail ourselves of that opportunity, not to actually amend the Constitution, but at least to bring to the fore debates on these issues, which is what we are doing now. Many constitutional amendments are filed. Very few ever get passed, and we know that too. But we think it is a worthwhile exercise to debate these issues, hoping that somebody on the court may pay attention.
What I want, is a Government that is scrupulously neutral as between faith groups, not relentlessly hostile, which is what we have now, and which I believe to be an absolute distortion of our founding fathers' intention and those who ratified it. God is mentioned four times in the Declaration of Independence. Our inalienable rights are an endowment from the creator. That must really disturb the ACLU and some of the groups I see represented. They must walk by the Archives grinding their teeth. God. Imagine mentioning God in the birth certificate of our country. How gauche. Well, there it is, Reverend Lynn, there it is, for all to see, but not to forget.
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So in any event, these are important hearings. I commend the chairman for having them. I commend Mr. Scott for articulating his point of view so well. Thank you.
Mr. CANADY. Thank you, Mr. Chairman. I will now move to our first panel, which is composed of Members. Representative Ernest Istook was scheduled to be with us. I still hope that he will be here to testify. We are expecting him momentarily. I understand that his flight this morning was delayed. I will go ahead and introduce him. Representative Istook has served the Fifth Congressional District of Oklahoma since 1993, and is a member of the House Appropriations Committee. He is the author of H.J. Res. 78, the proposed constitutional amendment to restore religious freedom.
On our first panel this morning, we also have with us Representative Chet Edwards. Congressman Edwards has served the 11th Congressional District of Texas since 1991, and is a member of the House Appropriations Committee. He is one of four chief deputy whips in the Democratic leadership.
We will also hear from Representative Tom Campbell. Congressman Campbell served the 12th Congressional District of California from 1989 to 1992, and has since represented the 15th District during the period from 1995 to the present. He is a member of the Committee on Banking and Financial Services and the Committee on International Relations.
Following Congressman Campbell will be Representative Walter Capps. Congressman Capps is serving the 22nd District of California in his first term. He is a member of the Committee on International Relations and the Committee on Science. Before his recent election, Congressman Capps was a professor of religious studies at the University of California Santa Barbara for over 30 years.
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Our final witness on the first panel will be Representative Sanford Bishop. Congressman Bishop has served the Second Congressional District of Georgia since 1993, and is a member of the Committees on Agriculture and Veterans Affairs, as well as the Permanent Select Committee on Intelligence. Congressman Bishop also retains the position of Democratic whip at large. I would also point out that Congressman Bishop is the lead cosponsor of Representative Istook's constitutional amendment.
I want to thank each of you for being with us this morning. We appreciate your input at this hearing. Without objection, your full written statements will be made a part of the permanent record of the hearing. We would ask that you do your best to summarize your spoken statement in no more than 5 minutes, although we probably won't strictly enforce the 5 minute rule. But the light will be on, so you might use that as a guide. Again, we thank you and we'll proceed now to Congressman Edwards.
STATEMENT OF HON. CHET EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. EDWARDS. Mr. Chairman, America already has a religious freedom amendment. It is called the First Amendment to the U.S. Constitution. It is the first pillar of the Bill of Rights. It is the sacred foundation of all our freedoms. The First Amendment begins, as Mr. Scott said, with these cherished words, ''Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.''
For over two centuries, that simple but profound statement has been the guardian of religious liberty, which is perhaps the greatest single contribution of American democracy. To tamper with the First Amendment of our Bill of Rights has profound implications. In the name of furthering religion, the Istook amendment could harm religion. In the name of protecting religious liberty, it could damage religious freedom.
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If history has taught us nothing else, it has taught us that the best way to ruin religion is to politicize it. Our founding fathers deleted the mentioning of God in our constitution, not out of disrespect, but out of total reverence. It is that same sense of reverence that should move us to protect the First Amendment to our constitution, not dismantle it.
Mr. Chairman, I believe there should be an enormous, enormous burden of proof placed upon anyone wanting to amend the first words, not just any amendment, but an amendment to amend the first words of the First Amendment of our Bill of Rights. This cherished document has not been amended even a single time since its adoption over two centuries ago. There can be no more sacred freedom than the freedom of religion. To tamper with it is a grave, grave undertaking.
I would hope, Mr. Chairman, that prior to any vote on amending the Bill of Rights, you would have hearings more extensive than any others, past or present, in the U.S. Congress. Regardless of one's views on the Istook amendment, to have a vote to change the Bill of Rights with less review than that of Whitewater, campaign finance, or even the Branch Davidian hearings would be an injustice to the Bill of Rights, our founding fathers, and all who cherish religious liberty. It would be tragic to set a precedent that amending the Bill of Rights deserves a less careful review than any other issue before this Congress or any Congress.
Mr. Chairman, those who would suggest that the Istook amendment is necessary because in some of their words, God has been taken out of public places, must not share my belief that no one, no one has the power to remove an all-powerful ever-present god from any place on this earth.
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As Mr. Istook and his supporters try to meet their burden of proof in arguing that the Bill of Rights is flawed, I hope they will be cognizant of the Ninth Commandment. Some of the published stories of school children being given F's for writing about Christ or the Ellen Pearson story of being prohibited from carrying Bibles on school buses have at times been inaccurate at best, and misleading at worst. For example, on the Ellen Pearson school bus story, what has not been mentioned was that that problem was resolved with one if not several phone calls to school administrators in 1989, hardly a convincing reason to amend the Bill of Rights in 1997.
Mr. Chairman, I would like to close with a prayer. I am a born Satanist. I am a happy little blob of custard, and you can't nail me to any wall. In fact, I will pull those nails out and aim them at you. Tell me how negative I am. Tell me how I am filled with hate. You are not stupid, you are wrong. Dracula loved his bride. Dr. Frankenstein loved his monster. My Satanic love burns fiercely. It's perfect and uncompromising.
Mr. Chairman, I absolutely do not want my two young sons some day exposed to this satanic devotional prayer or witchcraft, or Branch Davidian prayers in my hometown in central Texas. Therein lies the unanswered dilemma of the Istook amendment that allows student initiated prayer. Either you expose young impressionable children in a public classroom to Satanic and all other prayers from thousands of religious sects and cults or you allow 10-year-old, third and fourth grade children in elementary schools to be censors and selectors of permissible prayers and the guardians of America's religious rights. Would 10-year-olds set up prayer selection committees? Would 10-year-olds create prayer appeals committees? Would 10-year-olds be expected to balance majority views with minority rights as enumerated in our constitution?
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What if one's religion involves animal sacrifices? Would that be allowed in the classroom or on courthouse steps as part of a prayer ritual? Which 10-year-olds would be allowed to make that decision, Mr. Chairman? Could school administrators be allowed to override that student's decision on animal sacrifice ritual prayers in the public schools of America? If so, where do we then draw the line on Government officials reviewing what is and is not a permissible prayer.
Mr. Chairman, until these and hundreds of other questions, unanswered questions concerning the Istook amendment are answered, I would suggest we would do well to follow the wisdom of Jefferson, Madison, and our founding fathers and protect, not dismantle the first amendment of our Bill of Rights. Thank you, Mr. Chairman, and Members.
[The prepared statement of Mr. Edwards follows:]
PREPARED STATEMENT OF HON. CHET EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, there are several specific points I would like to make:
First, there should be an enormous burden of proof placed upon anyone wanting to amend the first words of the first amendment of our Bill of Rights.
This cherished document has not been amended even a single time since its adoption over two centuries ago. There can be no more sacred freedom than the freedom of religion—to tamper with it is a grave undertaking—I would hope that prior to any vote on amending the Bill of Rights, you would have hearings more extensive than any others past or present, in the U.S. Congress.
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Regardless of one's view on the Istook amendment, to have a vote changing the Bill of Rights with less review than Whitewater, campaign finance, or the Branch Davidian hearings would be an injustice to the Bill of Rights, our founding fathers, and all who cherish religious liberty.
It would be tragic to set a precedent that amending the Bill of Rights deserves a less careful review that any other issue before this Congress, or any Congress.
Mr. Chairman, those who would suggest that the Istook Amendment is necessary because, as they say, ''God has been taken out of public places'', must not share my belief that no one has the power to remove an all-powerful, ever-present God from any place on this Earth.
As Mr. Istook and his supporters try to meet their burden of proof in arguing that the Bill of Rights is flawed, I hope they will follow the Ninth Commandment. For example, they fail to point out that the Ellen Pearson school bus story was solved with one phone call to a school principal in 1989—hardly a convincing reason to amend the Bill of Rights in 1997.
Mr. Chairman, I would like to close with a prayer:
''I'm a born Satanist. I'm a happy little blob of' custard and you can't nail me to any wall; in fact, I'd pull those nails out and aim them at you. Tell me how negative I am; tell me how I'm filled with hate- You're not just stupid-you're wrong. Dracula loved his bride. Dr. Frankenstein loved his monster. My Satanic love burns fiercely; it's perfect and uncompromising . . .
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I absolutely do not want my two young sons some day exposed to witchcraft, or satanic, or Branch Davidian prayer in the public schools of Waco, Texas.
Therein lies the unanswered dilemma of the Istook Amendment that allows student initiated prayer. Either you expose young, impressionable children in a public classroom to satanic and all other prayers from thousands of religious sects and cults, or you allow 10 year old children in elementary schools to be the censors and selectors of permissible prayers and the guardians of America's religious rights.
Would 10 year olds set up prayer selection committees? Would 10 year olds create prayer appeals committees? Would 10 year olds be expected to balance majority views with minority rights as written in our Constitution?
What if one's religion involves animal sacrifices? Would that he allowed in the classroom as part of a prayer ritual? Which 10 year olds would be allowed to make that decision? Could school administrators be allowed to override the students decision? If so, where do we then draw the line on government officials reviewing what is and what is not a permissible prayer?
Mr. Chairman, until these and hundreds of other questions are answered concerning the Istook Amendment, I would suggest we would do well to follow the wisdom of Jefferson, Madison, and our founding fathers and protect, not dismantle, the First Amendment to our Bill of Rights.
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Mr. CANADY. Thank you, Congressman Edwards. Congressman Campbell.
STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAMPBELL. Thank you, Mr. Chairman. The proposed Istook amendment deals with the people's right to pray, not the right to perform animal sacrifice. The First Amendment has been amended many times, many times. The difference is, it's been amended by courts. What we propose to do in the Istook amendment is to amend it the way the Constitution provides it may be amended, after deliberation by two-thirds of each house, and then ratification by three-quarters of the States.
When people say that the First Amendment can never be touched, I think they err in their understanding of history. Just from a quick review, the Supreme Court has created exceptions to the First Amendment for commercial speech, for obscenity, for offensive and not yet obscene speech if it's on the radio, for imminent incitement to lawless action, for group libel, for fighting words, for slander. Each of these created by the Supreme Court from the language of the first amendment.
What we propose today in the Istook amendment is to create an interpretation that should have been interpreted by the Supreme Court itself, but was not, and to overcome what I consider an erroneous interpretation by the Supreme Court, a contamination rule. The contamination rule being that speech that would otherwise be protected and expression of religion that would otherwise be allowed is not permitted, is not allowed if it happens to occur on public property. I call it a contamination rule.
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I think most of us, and certainly members of the Judiciary Committee are familiar with the Supreme Court cases in this subject area, the Christmas crib cases, particularly. The way the Supreme Court has now come down is that a crib may appear on public property only if it is surrounded with so many secular trappings so that it does not stand out. An unusual interpretation, which has been pushed by subsequent interpretation by lower courts to what I consider absurd results. A valedictorian who submits her speech to the high school principal in advance and is instructed she may not give it because there are too many references to Christ. It has to be surrounded by secular images as well, just like the crib on public property or the teacher who, during a time when his class is doing an assigned reading, chooses to read the Bible and is told that that is not acceptable.
The present rule under which the courts are operating is given by the Supreme Court through their interpretation/amendment of the First Amendment. It is entirely appropriate for this committee and for this Congress to follow the constitutional means of setting about to clarify the Constitution, noting that we will thereby be able to bind the Federal Government and the States, but only with the approval of two-thirds of the representatives of the people in the Federal Government and three-quarters of the States.
I note that the Istook language is very carefully crafted. It is consistent with free exercise, and yet it does not force anyone to participate in any particular speech, any particular prayer. Nor may any government discriminate, neither as to a religion, nor as to religion in general.
Under the present system, Mr. Chairman, agnosticism wins. On public property, no expression of religion is allowed unless it is so surrounded with secular symbols as to be meaningless. I think the rule ought to be tolerance wins; that everyone may be free to express his or her religion or fail to express his or her religion. That rule I think is more consistent with the First Amendment. By amending the Constitution in that manner, we uphold what I consider its strong original intent.
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This particular draft, the Istook amendment, is not even a ''moment of silence'' amendment. It does not even go that far as I would read it. It does not go as far as the Religious Freedom Act, wherein States were obliged to accommodate to the maximum extent possible the expression of religion. All it does is reverse the contamination rule that the expression of religion otherwise permissible not be permitted if on public property.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Congressman Campbell.
Congressman Capps.
STATEMENT OF HON. WALTER CAPPS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAPPS. Thank you, Mr. Chairman, for the opportunity to speak before the Committee on an issue that means a great deal to me personally and is of paramount importance to our Nation.
I come here today, as you have already mentioned, as someone who has thought about religion, someone who is a friend of religion. For some 30 years, I have taught the subject at the University of California at Santa Barbara, where I chaired the department, was director the Institute of Religious Studies, and for a while was chair of an international council on the study of religion. I have written textbooks on the study of religion. At the same time, I am an active member of a local church, Grace Lutheran Church in Santa Barbara. Almost every Sunday morning finds me in church. I am also a person who attends worship in synagogues, who is an advocate of faiths and religious orientations other than the one in which I was born and raised. I am very privileged to call his Holiness the Dalai Lama, my friend. A number of students whom I have taught belong to the Muslim, as well as to the Buddhist and Hindu traditions.
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I believe I understand the motives of those who are sponsoring the so-called Religious Freedom Amendment. They do not wish to see our cherished society become secularized. They believe in religious values. They are believers in God, and they want such beliefs to be protected and nurtured.
I want to tell them that I share this rationale with them, but I truly believe that the amendment they propose is not the way to achieve these objectives. In fact, I believe it runs counter to the protection of the understanding of religion that is already inscribed in our cherished Bill of Rights.
First, the amendment is not necessary. We already have religious freedom in this country. When I taught my classes, there were absolutely no restrictions on what we could study or we could say about religions we study, or what we could say about God. The only restriction was that we not proselytize in the public school, that we not use the study of religion as a vehicle to advance the cause of one religion or another. Religion is already properly protected in the United States.
Second, the fact that so many national churches and religious organizations oppose this amendment is compelling. I know that more than 60 religious groups, from the American Baptist Churches to the Mennonites, to Unitarians, to the American Jewish community, to the Episcopal church, the Lutheran church, the Muslim Public Affairs Council, to numerous inter-faith organizations oppose this amendment.
The framers of the amendment must take this overwhelming response seriously. Why are all of these people opposed? Every one of them believes in the First Amendment. Every one of them is an advocate of religious liberty. Every one of them espouses separation of church and state. Every one of them depends upon the climate of religious freedom that we already enjoy in this Nation. Every one of them is opposed to the amendment.
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The only conclusion to which I can come is that the proposed amendment is a sectarian document, reflective of the sentiment of a portion of the American religious community, but in no sense reflective of the ideals that continue to make this country as Alexis de Tocqueville discovered more than a century ago, the environment in which religion flourishes. Why do I call it sectarian? Because built into the amendment is the form and mode of religion that is being promoted.
I wish to go further. Not only is the amendment unnecessary, it is also harmful. What does it mean to say that ''the people's right to pray and recognize their religious belief on public property including schools shall not be infringed.'' What does it mean to say that ''the Government shall not deny equal access to a benefit on account of religion.'' How would the courts interpret such an amendment? What would all of this require of teachers who are somehow obligated to try to accommodate all of the religions and faiths that are represented in our society? How will the country escape the implication that religion is not only protected, but is actually being legislated, that Government is being used as a force to promote religion? How can we ever safeguard the dictates of religious freedom in a climate like this?
Do the framers of the amendment really know how a society escapes falling into a secular abyss? My own suggestion is that we increase respect for religion through education. That is, by providing opportunities for students in our schools to learn about the religions of the world and the impact they have on the cultures with which they are associated, and the lives that they inform. The corollary is that we will increase religious freedom to the extent that we honor religious pluralism. In fact, Alexis de Toqueville also affirmed that the best way to ensure religious vitality in America is to endorse and safeguard religious pluralism. The proposed amendment does not serve these aspirations. Rather by invoking distinctions between majority and minority religious points of view, it comes dangerously close to destroying the constitutional fabric on which dictates regarding the freedom to worship or not to worship most fundamentally depend.
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I believe I understand what the framers of this amendment have in mind, but I truly believe that the consequences of what this amendment does will place religion not in freedom, but in bondage and under greater threats. If we imperil religion in this country, we undermine indispensable articles in faith. Indeed, we commit grave injustices to the life of the human spirit.
I thank the Committee for giving me the opportunity to speak today. I look forward to continuing this important conversation.
[The prepared statement of Mr. Capps follows:]
PREPARED STATEMENT OF HON. WALTER CAPPS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you, Mr. Chairman, for the opportunity to speak before your subcommittee on an issue that means a great deal to me personally, and that is of paramount importance to our nation.
I come here today as a scholar and a friend of religion. For more than thirty years I taught religion at the University of California in Santa Barbara. I chaired the Department of Religious Studies and I have written numerous textbooks on religion. I have been an active member of the Grace Lutheran Church in Santa Barbara for thirty years.
I believe that I have a unique and hopefully relevant perspective to add to today's hearing on Representative Istook's Religious Freedom Amendment. While I agree with the sponsors of the amendment that we must foster respect for religion, I have grave reservations about this legislation and the impact it would have on the lives of many Americans.
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First, this amendment is not necessary. If it were, I would be the first to support it. However, in thirty years of teaching and researching religious issues, I have never encountered an obstacle that prevented me from using my First Amendment right to talk about God, write about God, or express my faith. Furthermore, the people I represent, the many students that I have had the pleasure of teaching, and the religious communities that I have worked with throughout my career do not want this amendment. Why? Because they already enjoy the protection that the First Amendment has guaranteed them for over 200 years.
Second, the Istook Amendment would endanger the religious freedoms that have protected my work and my faith for most of my life. While I deeply respect my colleagues' desire to ensure religious freedom, this amendment has the potential to do just the opposite. If passed, the amendment could lead to government endorsement of particular religions at the expense of others.
I have serious reservations about letting the government endorse religion or any particular religious community. Giving the federal, state, and local governments the ability to choose one religion over another will not serve to protect religious freedom, but could alienate anyone who does not believe in the majority religion. Does this amendment, then, promote the protection of religion? No. It demeans the right of minority religions. If we truly want to celebrate religious freedom for all peoples, we cannot allow religion to be coercive or subject to majority rule. This amendment could do that. I came to Congress to create a common ground between Washington and the people of the 22nd District of California and to represent those who are a part of the majority and the minority. I could not support this amendment and stay true to that mission.
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If we want greater awareness and respect for religion in this country, we must educate people, especially young people, about all religions. I have been doing it for thirty years and have witnessed the change that this knowledge can make in people's lives. It increases their respect for Legislating religion would not lead more people to accept religion in their hearts—it will only threaten what they know and cherish as sacred.
Again, Mr. Chairman, I thank you and the members of the subcommittee for this opportunity, and I look forward to continuing this important conversation.
Mr. CANADY. Thank you, Congressman Capps.
Congressman Bishop.
STATEMENT OF HON. SANFORD BISHOP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. BISHOP. Thank you very much, Chairman Canady, and my good friend and the ranking Member Bobby Scott, for your courtesy in allowing me to give testimony before the subcommittee today. I would also like to thank Chairman Hyde and the other Members of the subcommittee for your interest in the religious freedom debate which will impact profoundly the way that Americans for years to come will be able to recognize and acknowledge their religious beliefs, their heritage and their traditions.
Moreover, the leadership of this body in re-establishing by constitutional authority, the right of Americans to pray on public property, including schools, without undue infringement, and to be secure in their right to freedom of religion according to the dictates of conscience in public and in private, is needed now more than ever before.
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Over the past 30 years, there has been an alarming separation of the people of this country from the longstanding religious heritage that had been woven into the fabric of our history. Ironically, the founding fathers who had the tyranny of a national religion fresh on their minds probably would never have envisioned a time in history like today when religious expression and exercise of any kind in public places is shunned so adamantly by Government. They were running from a government too involved in religion. Today we now have a government that discriminates against religion.
With the succession of cases upholding the wall of separation between church and State, the Supreme Court step by step in interpreting the Establishment and Free Exercise Clauses of the First Amendment moved us to the point where there is now more constitutional protection for nude art than there is for public religious expression. That is why I have joined with Mr. Istook of Oklahoma in support of a constitutional amendment, H.J. Res. 78, the Religious Freedom Amendment, which reads as follows, ''To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage and traditions shall not be infringed. The Government shall not 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.''
I am pleased that over 140 of our colleagues have joined as cosponsors thus far as we seek to correct instances where the Constitution has been misinterpreted in ways which in fact deny the people their religious freedom. I would like for the Committee to please note that I am not wedded to this particular language. I believe that this committee has the expertise and the political skills to craft language that will accomplish the goal of protecting prayer and religious expression in public places, including schools.
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For example, critics say that this Istook language would introduce the word ''God'' into the Constitution for the very first time. Unlike the Declaration of Independence, our constitution makes no mention of a deity. Article Six forbids a religious test for public office. The First Amendment bars Government from making any law respecting an establishment of religion or prohibiting the free exercise thereof. But the Constitution is otherwise silent on the subject of religion. Whether the term ''God'' is general or specific is arguably not very clear. It is a common term that's used in Western religious discourse to refer to a deity, but other religious faiths use other terms, Vishnu, Shiva, Brahma in Hinduism, Kami in Shintoism, or are not centered around a deity at all, such as in Taoism. For this reason, I would support the Committee if the language of the first clause of the first sentence were changed to delete the words ''to acknowledge God'' and instead said, ''to secure the people's right to freedom of religion according to the dictates of conscience.''
The next sentence in the amendment gets to the essence of the amendment. ''The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools shall not be infringed.'' This establishes a right to pray in public places to include schools and out loud, subject, of course, to reasonable limitations of time and circumstances while preserving the people's right to recognize their religious heritage.
The scope of what might be appropriate here can be gleaned from current case law, where the Supreme Court has upheld the practice of opening legislative sessions with prayers by a paid chaplain, the inclusion of a nativity scene in a Christmas display in a downtown park; invocations of divine guidance in deliberations and pronouncements of the founding fathers; the opening sessions of Congress every day with prayer by a paid chaplain, the inclusion of ''In God we Trust'' as a national motto on coins and currency, the inclusion of the language ''One Nation Under God'' in the pledge of allegiance, congressional directive that the president designate a national day of prayer each year; The presidential proclamations commemorating such religious events as Jewish Heritage Week and Jewish High Holy Days.
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Again, I note that the amendment is not perfect. The last sentence prohibits the Government from requiring any person to join in prayer other religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion. All but the last clause is a restatement of current law. The last clause of denial of equal access to a benefit is cited by critics as creating a possibility that this proposal could be construed to allow Government an affirmative role with respect to religious expression. Moreover, the non-discrimination mandate raises questions about the extent to which secular activities by Government would necessitate religious activities as well. These are questions in my opinion, that it would be better not to create and for this reason the Committee in its wisdom might choose to delete this language. For that reason, I hope that the Committee in its wisdom might choose to delete that particular language.
If during your consideration of H.J. Res. 78, you are willing to craft some alternative language, I would like to recommend the following. ''To secure the people's right to freedom of religion according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The Government shall not require any person to join in prayer or other religious activity, initiate or designate school prayers, nor otherwise compel or discriminate against religion.''
This is a very important issue. Support for restoration of the constitutional protections by religious freedoms is growing every day. I urge this committee to go forward and to make sure that this amendment in some form passes this House, goes to the other body, and then to the States for ratification. Thank you for allowing me to be heard on this matter. I certainly will stand willing to work with you in any way that I can.
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[The prepared statement of Mr. Bishop follows:]
PREPARED STATEMENT OF HON. SANFORD BISHOP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Thank you Chairman Canady, and my good friend and the Ranking Member, Bobby Scott for your courtesy in allowing me to give testimony before the subcommittee today. I would also like to thank Chairman Hyde and the other members of the subcommittee for your interest in the religious freedom debate which will impact profoundly the way Americans for years to come will be able to recognize and acknowledge their religious beliefs, heritage, and traditions. Moreover, the leadership of this body in reestablishing by constitutional authority, the right of Americans to pray on public property, including schools, without undue infringement and to be secure in their fight to freedom of religion according to the dictates of conscience in public and in private, is needed now more than ever before.
Over the past thirty years there has been an alarming separation of the people of this country from the longstanding religious heritage that had been woven into the fabric of our history. Ironically, the founding fathers, who had the tyranny of a national religion fresh on their minds, probably would never have envisioned a time in history like today, when religious expression and exercise of any kind in public places is shunned so adamantly by government. They were running from a government too involved in religion. Today, we now have a government that discriminates against religion!
With the succession of cases upholding the ''wall of separation'' between church and state, the Supreme Court, step by step, in interpreting the ''establishment'' and ''free exercise'' clauses of the First Amendment moved us to the point where there is now more constitutional protection for nude art than there is for public religious expression.
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That is why I have joined with Mr. Istook of Oklahoma in support of a constitutional amendment, H. J. Res., 78, the Religious Freedom Amendment which reads as follows:
''To secure the people's fight to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage and traditions shall not be infringed. The Government shall not 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.''
I am pleased that over 140 of our colleagues have joined as co-sponsors thus far as we seek to correct instances where the Constitution has been misinterpreted in ways which in fact deny the people their religious freedom.
Please note that I am not wedded to this particular language. I believe that this committee has the expertise and the political skills to craft language that will accomplish the goal of protecting prayer and religious expression in public places, including schools. For example, critics say that this language would introduce the word ''God'' into the Constitution for the very first time. Unlike the Declaration of Independence, the Constitution makes no mention of a deity. Article VI forbids a religious test for public office, and the First Amendment bars government from making ''any law respecting an establishment of religion, or prohibiting the free exercise thereof...'' But the Constitution is otherwise silent on the subject of religion.
Whether the term ''God'' is general or specific is arguably not clear. It is a common term used in Western religious discourse to refer to a deity but other religious faiths use other terms—Vishnu, Shiva, and Brahma (Hinduism): Kami (Shintoism)—or are not centered about a deity (Taoism). For this reason I would support the Committee if the language of the first clause of the first sentence were changed to delete the words ''to acknowledge God'' and instead said: ''To secure the people's right to freedom of religion according to the dictates of conscience.''
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The next sentence gets to the essence of the amendment:
''. . . The people's right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed . . .''
This establishes a fight to pray in public places to include schools and out loud, subject to reasonable limitations of time and circumstances, while preserving the people's right to recognize their religious heritage. The scope of what might be appropriate here can be gleaned from current case law where the Supreme Court has upheld the practice of opening legislative sessions with prayers by a paid chaplain; the inclusion of a nativity scene in a Christmas display in a downtown park; invocations of Divine guidance in deliberations and pronouncements of the Founding Fathers; the opening of sessions of Congress with prayer by a paid chaplain; the inclusion of ''In God We Trust'' as the national motto on coins and currency; the inclusion of the language ''One nation under God'' in the Pledge of Allegiance; Congressional directive that the President designate a National Day of Prayer each year; and presidential proclamations commemorating such religious events as Jewish Heritage Week and the Jewish High Holy Days.
Again, I note that the amendment is not perfect. The last sentence prohibits the Government from requiring any person to join in prayer or other religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion. All but the last clause is a restatement of current law. That last clause on denial of ''equal access to a benefit . . .'' is cited by critics as creating a possibility that this proposal could be construed to allow government an affirmative role with respect to religious expression. Moreover, the nondiscrimination mandate raises questions about the extent to which secular activities by government would necessitate religious activities as well. These are questions it would be better not to create and for that reason the Committee in its wisdom might choose to delete this language.
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If during your consideration of H. J. Res. 78 you are willing to craft some alternative language, I would recommend the following:
''To secure the people's right to freedom of religion according to The dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed. The Government shall not require any person to join in prayer or other religious activity, initiate or designate school prayers, nor otherwise compel or discriminate against religion.''
This is a very important issue. Support for restoration of the Constitutional protections for our religious freedoms is growing every day. I urge this committee to go forward and make sure that this amendment in some form passes this House, goes to the other body, and then to the States for ratification.
Thank you for allowing me to be heard on this matter.
Mr. CANADY. Thank you, Congressman Bishop.
Congressman Istook.
STATEMENT OF HON. ERNEST ISTOOK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA
Mr. ISTOOK. Thank you, Mr. Chairman. I think you were made aware before, I was stranded last night in Chicago and got the first flight possible this morning. I very much appreciate the opportunity for this hearing on the proposed Religious Freedom Amendment and the testimony of other Members of Congress and those that are to follow.
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The proposed constitutional amendment that you have before you is the product not only of work, research, and effort, but also itself is the product of prayer. It represents a consensus by those who share the public's belief that our courts too often have become hostile to religion, placing barriers to religious expression which do not exist for other forms of free speech. In other settings, I have discussed the problems with court decisions that harm religious freedom in America. Today I want to focus on the solution.
Over 140 Members of this House so far are cosponsoring the RFA because like millions of Americans, we believe it is necessary to correct 35 years of adverse court decisions. It is supported by a broad coalition that includes not only Christian groups, but also Jewish groups and Muslim groups. Support ranges from America's largest black denomination, the National Baptists, to the Salvation Army, Youth for Christ, the country's largest Protestant group, the Southern Baptists, plus many more. We seek a constitutional amendment because the courts have left us no other choice.
The Supreme Court rulings on school prayer and other religious issues have provoked broad public outrage since 1962. Throughout the last 35 years, public opinion polls typically have shown 75 percent of the American public want a constitutional amendment supporting prayer in public schools. Not since 1971 has such a constitutional amendment been voted upon in the House of Representatives. The Senate conducted votes in 1966, 1970, and 1984. There have been related approaches not involving a constitutional amendment. Those have ranged from limiting jurisdiction of the Federal courts, to equal access proposals, to appropriations riders.
Earlier this year, the House approved legislation to promote display of the ten commandments on public property, despite Supreme Court rulings to the contrary. That prevailed by 295 to 125, significantly a margin of 70 percent. It is time for the House to end its 26 years of inaction by approving the Religious Freedom Amendment, and thus adding this language to our constitution. ''To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property including schools, shall not be infringed. The Government shall not require any person to join in prayer or other religious activity, prescribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.''
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Mr. Chairman, I hope that you and the other Members will note a slight revision from the original text of H.J. Res. 78. It simply substitutes the word ''prescribe'' where the introduced version said ''initiate or designate.''
H.J. Res. 78 also includes the normal protocol for submitting this text to the States for ratification with a 7-year limit on the process.
I would like to review the Religious Freedom Amendment portion by portion. The preamble, ''To secure the people's right to acknowledge God according to the dictates of conscience.'' It has a purpose. As former Chief Justice Story described the purpose of a preamble, it's true office is to expound the nature and extent and application of the powers actually conferred by the Constitution and not substantively to create them. So the preamble principally serves to indicate intent, to assist in interpretation of the substantive provisions. This particular preamble in its concept, I would like to attribute chiefly to Forest Montgomery, the legal counsel for the National Association of Evangelicals.
But, Mr. Chairman, contrary to what some may think, there is absolutely nothing unique or unusual to have constitutional language in this country which expressly mentions God. In fact, such language is a rule not the exception in the constitutions of the states. If you look at those 50 constitutions, you will find that the people of this country very readily and frequently have embraced attitudes different from those expressed by the U.S. Supreme Court. Forty five of the 50 States have adopted express and explicit mentions of God in their constitutions or the preambles to those constitutions. For example, in Alaska, the constitution states that its citizens are ''grateful to God and to those who founded our Nation in order to secure and transmit to succeeding generations our heritage of political, civil and religious liberty.''
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In Colorado, theirs reads ''with profound reverence for the supreme ruler of the universe.'' Idaho's states ''grateful to almighty God for our freedom.'' That is the identical phrase also used in California and Nebraska and New York and Ohio and Wisconsin. Pennsylvania phrases it as ''grateful to Almighty God for the blessings of civil and religious liberty and humbly invoking his guidance.''
Some States go even farther. Maryland, in its Article 36 declares ''the duty of every man to worship God.'' Further—in the Maryland constitution, it states that nothing in it shall prohibit reverences to God or prayer in any governmental or public document, proceeding, activity, ceremony, school, institution or place, and declares that such conduct and mentions are not considered to be an establishment of religion.'' These are typical of the State constitutions. Explicit references to God are absent only from the State constitutions of New Hampshire, Oregon, Tennessee, Vermont, and Virginia.
The Religious Freedom Amendment also applies a phrase common to many of the original State constitutions, the term and phrase ''according to the dictates of conscience.'' Virginia used it in 1776 as part of its declaration of rights proclaiming, ''all men are equally entitled to the free exercise of religions according to the dictates of conscience.'' With slight variations, it appears in the original constitutions of Delaware and New Jersey, North Carolina, Vermont, Massachusetts, and New Hampshire. Today, this ''phrase according to the dictates of conscience'' is echoed in the constitutions of 28 States around this country.
So the preamble's inclusion of this phrase is the first of multiple protections within the Religious Freedom Amendment to safeguard the rights of conscience and of religious minorities. The Religious Freedom Amendment's preamble stresses our shared belief that Government should accommodate and protect religious freedom, but it simultaneously stresses that Government should not and must not dictate in regard to religion.
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The next portion stating ''The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed'' is the first of two portions intended directly to correct adverse court decisions. I should state that the Religious Freedom Amendment is intended to preserve and protect the precedential value of two positive Supreme Court decisions favorable to religious freedom and to even-handed treatment, those being the cases of Marsh v. Chambers and Rosenberger v. Rector and Visitors of the University of Virginia. Marsh upholds the founding fathers' original intent protecting traditional practices, which obviously they considered fully consistent with the establishment clause, such as prayer in legislative bodies and others enumerated in that decision. Rosenberger directly upholds Government neutrality toward religious speech rather than the veiled hostility that too often we have seen.
H.J. Res. 78 does not seek simply to protect religious rights by restricting Government, but by affirmatively proclaiming the right of the people themselves. Again, it tracks other portions of our Constitution which take both approaches. Public property as used in the RFA is synonymous with Government property. It's not limited to real estate. In a proper case, for example, it can address public property such as a city seal, which contains a depiction of a community's heritage, traditions or belief. There has been much litigation lately trying to strip religious emblems or references from city seals.
The test of course is that the role of Government does not go beyond recognizing religious belief, heritage or tradition and avoids becoming a promotion of any religion. It does not repeal the Establishment Clause of the First Amendment, but it interacts with it to restore the original balance between the Establishment Clause and the Free Exercise Clause of the First Amendment.
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How would it change the outcome of different cases from the last 35 years? The threshold case of Engel v. Vitale held that Government may not compose an official prayer or compel joining in prayer. This portion of Engel would remain intact. However, the portion of Engel which precluded students from engaging in group classroom prayer, even on a voluntary basis, would be corrected by the Religious Freedom Amendment. Abington School District v. Schemp, to the extent that it prohibited the composition or imposition of prayer by an entity of Government would of course remain, but to the extent that Abington broadly permitted the Establishment Clause to supersede the Free Exercise Clause, it would yield to the standard of the Religious Freedom Amendment and instead would track—the standard that was enunciated by Justice Potter Stewart in his dissent in the Abington case.
Prohibition on silent prayer in public schools, incorporated into the case of Wallace v. Jaffree, would be corrected by the RFA. Silent as well as vocal prayer would be legitimized again, so long as there was no Government dictate either to compel that it occur or to compel any student to participate.
Graduation prayers, so long as not prescribed by Government, would be freed of the prohibition that came with the case of Lee v. Weisman. Justice Kennedy in that case wrote that a normal expectation of respectful silence, which of course is expected for so many other school programs, became coercion when a rabbi offered a graduation prayer. Justice Kennedy proclaimed that it created pressure, though subtle and indirect, as real as any overt compulsion. The court never explained how that is worse than expecting courtesy and civility for non-religious school presentations. So prayer was held to violate the principle of neutrality in Lee v. Weisman, even though seeking respect for non-religious speech was normal and permitted.
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Lee v. Weisman transmuted simple listening into participation. That is why the Religious Freedom Amendment applies a common sense standard that no person can be compelled to join in prayer, in an active act. It does not equate hearing speech with which a listener may disagree with participation. That standard is not applied, Mr. Chairman, to any other free speech. In no other case is the fact that someone else says something supposedly an indication that we ourselves are participating in its presentation.
The ability to post the Ten Commandments on public property as an expression of religious belief, heritage or tradition was prohibited by Stone v. Graham. But under the Religious Freedom Amendment, it would be protected although there would neither be a mandate nor guarantee that it would be proper under all circumstances. But the automatic prohibition of Stone v. Graham would be ended.
The people's right of course is a right held both by individuals and collectively by the body of the people. 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.
Lemon v. Kurtzman, and its subjective three-pronged test, have often been used by the court to achieve a desired result rather than to guide its analysis. The Lemon test would necessarily be revised because a purely secular objective would no longer be compulsory under the express terms of the Religious Freedom amendment. Recognition of religious heritage, tradition or belief as opposed to promotion would be a proper objective.
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The case of County of Allegheny v. ACLU would be brought back into line with the case of Lynch v. Donnelly. The so-called plastic reindeer test for holiday symbols on public property would no longer be decisive. Lynch permitted display of a Government-owned nativity scene, whereas Allegheny restricted the display of a private creche on public property, saying there was a need for better visual balance with secular emblems.
Mr. Chairman, I submit that it is no more necessary to balance religious emblems with secular emblems than it would be required to balance secular emblems with religious emblems. If our goal is the concept of neutrality, a truer test would consider whether symbols of differing faiths were afforded similar opportunity for display during their special seasons. The proper test would be whether government sought to establish an official religion rather than to try to outlaw traditions from our public forums.
Of course the Religious Freedom Amendment specifies that Government shall not require any person to join in prayer or other religious activity or prescribe school prayers. Mr. Chairman, that repeats protections that have been phrased in different court decisions and it's very important, we feel, to protect not only the rights of individual conscience, but of minorities. No school prayer nor any religious activity could ever be mandatory. The Religious Freedom Amendment explicitly makes that clear. Effectively, it follows and endorses the standard that was applied by the Supreme Court in West Virginia State Board of Education v. Barnette. There, the court correctly ruled that no student could or should be compelled to say the Pledge of Allegiance. However, the court did not create a right for an objecting student to prohibit their classmates from saying the Pledge. I believe that is the correct standard and it is the philosophical basis of the Religious Freedom Amendment.
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Finally of course, it provides equal protection, stating ''The Government shall not discriminate against religion or deny equal access to a benefit on account of religion.'' Today, religious symbols and religious behavior are automatically suspect when they occur on public property. But even offensive non-religious emblems are routinely accepted by the courts. For example, the United States Supreme Court has held that a ''hate law'' statute outlawing burning of crosses and outlawing Nazi swastikas ran afoul of the First Amendment. Those, of course, are expressions intended to be expressions of hate rather than expressions of hope. But they are constitutionally protected and upheld, whereas the courts routinely challenge anything that has a positive or religious character to it. The Congressional Research Service has reported there are 51 Federal statutes and regulations which disqualify religious organizations or religious adherents from neutral participation in generalized government programs; the RFA would correct that.
There's a growing recognition that faith-based programs can succeed even when other programs cannot to combat crime and violence, teen pregnancy, welfare dependency, recidivism, and other social programs. To disqualify them because of their religious component violates the notion of neutrality. The benefits language does not guarantee any benefit to any person or group. It assures only equal access if and when some benefit is made available. For example, the RFA does not create a program of vouchers for schools. If and when a unit of Government chose to create such a program, the amendment would simply assure that individuals and private entities are afforded equal access to them. This is the identical standard already utilized in Federal student loan programs and in the GI bill. Private institutions including those affiliated with churches, should be permitted to participate under the same standards as others. Neither Notre Dame nor Boston College are disqualified from Federal education programs for being Catholic, nor is any other school on the basis of religion. That is the concept of neutrality which the Religious Freedom Amendment endorses.
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Finally, Mr. Chairman, should this body wish to do so, the amendment provides the opportunity for a constitutional enactment to reestablish the Religious Freedom Restoration Act which recently was struck down by the U.S. Supreme Court. I'm well aware, of course, that you're looking at possible statutory remedies, but it is possible in very simple form, with an additional sentence or section, to add explicit protections to the Religious Freedom Amendment to guarantee support for the Religious Freedom Restoration Act.
Mr. Chairman, I thank you and the members of the committee for your time and your attention. As I mentioned before, it's been 26 years since this House has acted upon the necessary constitutional amendment to correct this, and in the interim the 75 percent public support for such action has not diminished. I believe it is time for us to proceed, and I thank you for your time and your attention.
[The prepared statement of Mr. Istook follows:]
PREPARED STATEMENT OF HON. ERNEST ISTOOK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA
Chairman Hyde, Chairman Canady, and Members of the Committee, I thank you for the opportunity to discuss the Religious Freedom Amendment, House Joint Resolution 78.
The proposed constitutional amendment you have before you is the product not only of work, research and effort, but also of prayer. It represents a consensus by those who share the public's belief that our courts have often become hostile to religion, placing barriers to religious expression which do not exist for other forms of free speech.
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In other settings, I've discussed the problems with court decisions which harm religious freedom in America. Today, I want to focus on the solution, the Religious Freedom Amendment. Over 140 Members of this House so far are co-sponsoring it, because like millions of Americans we believe it is necessary to correct 35 years of adverse court decisions. It is supported by a broad coalition that includes Christian groups, and Jewish groups, and Muslim groups. Support ranges from America's largest black denomination, the National Baptists, to the Salvation Army, Youth for Christ, and the country's largest Protestant group, the Southern Baptists, plus many more. We seek a constitutional amendment because the courts have left us no other choice.
Supreme Court rulings on school prayer and other religious issues have provoked broad public outrage since 1962. Throughout the last 35 years, public opinion polls typically have shown 75% of the American public want a constitutional amendment supporting prayer in public schools.
Not since 1971 has such a constitutional amendment been voted upon in the House of Representatives.1\ The Senate conducted votes in 1966,2\ 1970,3\ and 1984.4\ Obviously, none of those succeeded. Additionally, there have been related approaches not involving a constitutional amendment, ranging from limiting the jurisdiction of the federal courts, to equal access proposals, to appropriations riders. (These are described in detail in a 1996 report by the Congressional Research Service.5\) Earlier this year, the House approved legislation to promote display of the Ten Commandments on public property, despite Supreme Court rulings to the contrary. It prevailed by 295–125, a 70% margin.
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It is time for the House to end its 26 years of inaction, by approving the Religious Freedom Amendment, and thus adding to our Constitution this language:
''To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The government shall not require any person to join in prayer or other religious activity, prescribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.''
Please note a slight revision from the original text of H.J. Res. 78. It is simply substituting the ''prescribe'' where the introduced version said ''initiate or designate.'' This clarification follows consultation with many supporters. I request that this subcommittee or the full committee make this adjustment at mark-up.
H.J. Res. 78 also includes the normal protocol for submitting this text to the states for ratification, with a seven-year limit on that process.
Let me now review the Religious Freedom Amendment, portion-by-portion:
Preamble of the Religious Freedom Amendment: ''To secure the people's right to acknowledge God according to the dictates of conscience: . . .''
The preamble has a purpose. As former Chief Justice Story described the nature of a constitutional preamble, ''Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them.'' 6 The preamble to H.J. Res. 78 serves principally to indicate intent, to assist in interpreting the substantive provisions.
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The concept of this particular preamble I attribute chiefly to Forest Montgomery, legal counsel for the National Association of Evangelicals. But there is nothing unique or unusual to have constitutional language which expressly mentions God. Such language is the rule, and not the exception, in our state constitutions.
I invite critics of the Religious Freedom Amendment to review the constitutions of our 50 states. Through these, the American people have freely embraced attitudes very different from those expressed by the U.S. Supreme Court.
Forty-five states have adopted express and explicit mentions of God in their constitutions or preambles.
In Alaska, the constitution states that its citizens are ''grateful to God and to those who founded our nation . . ., in order to secure and transmit to succeeding generations our heritage of political, civil and religious liberty''. In Colorado, theirs reads, ''with profound reverence for the Supreme Ruler of the Universe.'' Idaho states, ''grateful to Almighty God for our freedom,'' which is the identical phrase used by California, and Nebraska, and New York, and Ohio, and Wisconsin. Pennsylvania phrases it as ''grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance.''
Some go even farther. Maryland's Article 36 declares ''the duty of every man to worship God.'' Maryland's constitution further states that nothing in it shall prohibit references to God or prayer ''in any governmental or public document, proceeding, activity, ceremony, school, institution, or place'' and declares that those things are not considered to be an establishment of religion.
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These are typical of our state constitutions. Explicit references to God are absent only from those of New Hampshire, Oregon, Tennessee, Vermont and Virginia.
Just as America adopted ''In God We Trust'' as our national motto, the states have mottoes, often incorporated on their state seals. Arizona's seal states, ''Ditat Deus'', meaning ''God Enriches.'' Florida's seal states, ''In God We Trust.'' Ohio doesn't put it on a seal, but proclaims its motto, ''With God, All Things Are Possible.''
The Religious Freedom Amendment echoes the philosophy found in our state constitutions, namely that faith guided the creation of America's common principles and ideals, and faith is at the core of preserving them. It tracks the essence of the Declaration of Independence, wherein our Founding Fathers proclaimed that our rights come not from government, but from God, declaring, ''We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men.''
The Religious Freedom Amendment also applies a phrase common to many of the original state constitutions: ''according to the dictates of conscience''. Virginia used it in 1776 as part of its Declaration of Rights, proclaiming, ''all men are equally entitled to the free exercise of religions, according to the dictates of conscience.'' It appeared with slight variations in the original constitutions of Delaware, New Jersey and North Carolina (all 1776), Vermont (1777), Massachusetts (1780) and New Hampshire (1784). Today, this phrase is echoed in the constitutions of 28 states Arkansas, Connecticut, Delaware, Georgia, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin.
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The preamble's inclusion of the phrase, ''according to the dictates of conscience,'' is the first of multiple protections within the Religious Freedom Amendment to safeguard the rights of religious minorities.
(The term ''according to the dictates of conscience'' does not, however, protect lewd behavior under the claim or pretense of religion. Although worded in absolutist fashion, the First Amendment nevertheless yields when necessary to avoid ''substantial threat to public safety, peace, or order''.7\ The courts determined that free exercise of religion is not a license to disregard general statutes on behavior, such as outlawing polygamy,8\ use of illegal drugs,9\ prostitution,10 and even snake-handling.11 The right to free speech does not permit shouting ''Fire!'' in a public theater, or wanton and intentional libel and slander. It does not give students a right to interrupt and usurp class time to speak whenever they want about whatever they want. Nor would the Religious Freedom Amendment sanction disruptions by those wishing to pray or to speak about religion.)
The Religious Freedom Amendment's preamble stresses our shared belief that government should accommodate and protect religious freedom, but it simultaneously stresses that government should not and must not dictate in regard to religion. By concluding with the safeguard of ''according to the dictates of conscience,'' the RFA provides assurance that, even as it protects religious expression in public places, it cannot be used to dictate how any person chooses to express or not express his or her beliefs, nor can it be used to favor one religious faith over another.
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Protecting religious expression: ''. . . The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. . . .''
This is the first of two portions of the Amendment intended directly to correct adverse court decisions. (The second is the portion dealing with non-discrimination.)
The Religious Freedom Amendment is also intended to preserve and protect the precedential value of two Supreme Court decisions favorable to religious freedom and to even-handed treatment of religion, namely Marsh v. Chambers 12 and Rosenberger v. Rector and Visitors of the University of Virginia.13 Marsh upholds the original intent of the Founding Fathers, protecting traditional practices which they obviously considered fully consistent with the Establishment Clause.14 Rosenberger directly upholds true government neutrality toward religious speech, rather than the veiled hostility found in some other cases.
H.J. Res. 78 does not seek to protect religious rights simply by restricting the power of government; it instead speaks also proclaims an affirmative right of the people themselves. The Bill of Rights and other Constitutional amendments have likewise used both approaches to establish and protect rights of the people.15 The Religious Freedom Amendment expressly declares the rights of the people themselves, to make its intent even clearer to the courts. (But, as previously noted, the absolutist statement of an affirmative right does not impede reasonable requirements for the time, place and manner of speech. For example, the RFA does not give a student any right to disrupt class by spontaneously offering a prayer, just as the First Amendment does not give them any right to disrupt class by spontaneously launching into any other form of speech.)
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''Public property'' as used in the RFA is synonymous with ''government property'', but is not limited to real estate. In a proper case, it can for example address public property such as a city seal which contains a depiction of a community's heritage, traditions or beliefs. Thus, the test is to assure that any role of government does not go beyond recognizing religious belief, heritage or tradition, and avoids becoming the promoting of any religion. The RFA does not repeal the Establishment Clause of the First Amendment, but interacts with it, restoring the former balance between the Establishment Clause and the Free Exercise Clause. Use of public property to go beyond the Equal Access Act, to go beyond recognition and into promotion of a religion would continue to run afoul of the Establishment Clause of the First Amendment.
How will the RFA change the outcome of some Supreme Court decisions of the past 35 years?
—The threshold case of Engel v. Vitale 16 held that government may not compose any official prayer or compel joining in prayer. This portion of Engel would remain intact. However, that portion of Engel which precluded students from engaging in group classroom prayer even on a voluntary basis would be corrected by the RFA.17
—Abington School District v. Schemp,18 to the extent that it prohibited the composition or imposition of prayer by an entity of government, would remain the law under the RFA. But to the extent that Abington broadly permits the Establishment Clause to supersede the Free Exercise Clause, it would yield to the standard enunciated in Justice Stewart's dissent:
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''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.''
—The prohibition on silent prayer in public schools, incorporated into Wallace v. Jaffree,19 would be corrected by the RFA. Silent prayer (as well as vocal prayer) would be legitimized, so long as there was no government dictate either to compel that it occur, or to compel any student to participate. In Justice Potter Stewart's dissent from Abington, he found permitting school prayer is a necessary element of diversity:
''. . . the duty laid upon government in connection with religious exercises in the public schools is that of refraining from so structuring the school environment as to put any kind of pressure on a child to participate in those exercises; it is not that of providing an atmosphere in which children are kept scrupulously insulated from any awareness that some of their fellows may want to open the school day with prayer, or of the fact that there exist in our pluralistic society differences of religious belief.''
—Graduation prayers (so long as not prescribed by government) would be freed of the Lee v. Weisman 20 prohibition. Justice Kennedy wrote in that case that the normal expectation of respectful silence (which is expected for so many other school programs), became coercion when a rabbi offered a graduation prayer, because it creates ''pressure, though subtle and indirect, . . . as real as any overt compulsion.''
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The Court never explained how this is worse than expecting courtesy and quiet for non-religious school presentations. It violated neutrality by holding thatseeking courtesy and tolerance is coercive, even though seeking respect for non-religious speech was normal and permitted. But because Lee v. Wiseman transmuted simple listening into ''participation'', the Religious Freedom Amendment instead applies a common-sense standard that no person can be compelled ''to join in prayer''. The RFA makes prayer an expressly-permitted activity, so long as actual joining-in and or prescribing of prayer are not required.
The standard of Lee v. Weisman has been dangerous, because it declares that simple exposure to religious speech (like exposure to pornography) is so inherently damaging that people must be protected from it. Even pornography is granted a chance to be measured against prevailing community standards. But Lee v. Weisman's subjective standard permits a lone ''offended'' individual to silence all others in a public place, thereby censoring their religious expressions. The effect creates the dangerous notion of a new ''freedom from hearing'' right which is superior to others' express rights under the First Amendment. This is especially insidious and chilling when it is used for prior restraint of religious speech.
Under the pretense of promoting tolerance, our courts have thus been used to promote censorship. The RFA corrects this, protecting the rights of both minorities and majorities. The Constitution and the Bill of Rights were intended to protect each and every one of us, not merely some of us.
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—The ability to post the Ten Commandments on public property (as an expression of religious beliefs, heritage or traditions of the people), prohibited by Stone v. Graham,21 becomes protected under the RFA, although there would be neither a mandate nor a guarantee that it would be proper under all circumstances. But Stone v. Graham's automatic prohibition would be ended.
''The people's right'' is a right held both by individuals and as a collective group. The RFA does not, however, create a mechanism for government officials to begin dictating wholesale inclusion of religious symbols for constant or incessant display on public property, because they would remain bound by the First Amendment's prohibition 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. The RFA would correct the trend of using the Establishment Clause to run roughshod over the Free Exercise Clause. The First Amendment consciously established a tension by stating not only what government could not do, but also stating what the people could do. Our courts have instead halted voluntary religious expressions by citizens, individually and collectively, whenever government has some connection.
Because the scope and intrusiveness of government has grown so rapidly, it has become all-pervasive, making it a rare occasion when there is no presence of government. Accordingly, the judicially-created ''wall of separation'' has become a moving wall. As the presence of government constantly expands, this standard crowds out opportunities for religion to be present and to flourish. As shown by the recent ruling in City of Boerne v. Flores, Archbishop 22 even a church's ability to seat its worshippers is subjected to government control. This was never the intention of our Founding Fathers.
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—Lemon v. Kurtzman 23 and its subjective three-pronged test have often been used to achieve a desired result rather than to guide an analysis. The Lemon test would necessarily be revised, because a ''purely secular'' objective would no longer be compulsory. Recognition of religious heritage, tradition or belief would be a proper objective, so long as it did not rise to the level of promoting a particular faith.
—The case of County of Allegheny v. ACLU, Greater Pittsburgh Chapter,24 would be brought back into line with Lynch v. Donnelly.25 The so-called ''plastic reindeer'' test for holiday symbols on public property would no longer be decisive. Lynch permitted display of a government-owned Nativity scene, whereas Allegheny restricted the display of a private creche on public property, citing a need for better visual ''balance'' with secular emblems. It would be no more compulsory to add secular items to a religious display than to require adding religious symbols to ''balance'' purely secular displays.
A truer test would consider whether symbols of differing faiths were afforded similar opportunity for display during their special seasons. The proper test would be whether government sought to establish an official religion, rather than outlawing traditions from a public forum.
The Religious Freedom Amendment would correct the bias that secular symbols, regardless of how perverse, are constitutionally-protected for public display,26 whereas religious symbols are considered suspect. The intent of the RFA is to re-establish true neutrality, by affording religious expression the same equal protection as other expression, rather than the pretense of neutrality that too often exists in name only.27
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The carryover of true neutrality would extend to other aspects of once-common but now-suppressed reflections of beliefs, heritage and traditions. School holiday programs would not feel the pressure to limit songs to ''Frosty the Snowman'' or ''Rudolph the Red-Nosed Reindeer''. The carols of Christmas, the hymns of Thanksgiving, the songs or Hanukkah, and those of other faiths would be welcome. Tolerance and understanding would be promoted, rather than avoided. The standard would be that reflections of faith, meaning minority faiths as well as majority faiths, are clearly permitted, so long as it does not progress into advocating or promoting any particular faith.
Protecting individual conscience and minorities: ''. . . The government shall not require any person to join in prayer or other religious activity, [or] prescribe school prayers . . .''
The RFA does not overturn the First Amendment's prohibition on establishing an official religion, neither expressly nor impliedly. Nevertheless, it contains this protective language as an extra safeguard to assure this.
No school prayer (nor any religious activity) could ever be mandatory; the RFA explicitly makes this clear. It demonstrates an abundance of caution and concern for religious freedom for all, in particular for any who may be in a minority in their area. It does not permit a large group to muzzle or suppress a small group; it does not permit a small group to muzzle or censor a large group. Nor does it permit anyone to compel prayer or other religious conduct by those who do not wish to participate.
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Government could not prescribe prayer, under either principal definition of that term. It could not ''prescribe'', in the sense that it could not direct that they occur. Under the RFA, that initiative properly comes from students. Nor could government ''prescribe,'' in the sense that it could not dictate the content of prayer.
This language reinforces the ''according to the dictates of conscience'' protection of the RFA's preamble.
The RFA effectively endorses and follows the standard applied by the Supreme Court in West Virginia State Board of Education v. Barnette.28 There, the Court correctly ruled that no child could or should be compelled to say the Pledge of Allegiance. However, the Court did not create a right for an objecting student to prohibit their classmates from saying the Pledge.
Providing equal protection: ''. . . [The government shall not] . . . discriminate against religion, or deny equal access to a benefit on account of religion.''
Religious symbols and religious behavior currently are automatically suspect when they occur on public property, or in association with a government activity or program. But unlike the standard on religion, secular symbols, behavior, or activity are not pre-burdened. This discriminatory dual standard is prohibited by the RFA. The amendment does not prohibit positive accommodation of religion, such as non-profit tax treatment, but focuses instead to bar discrimination against religion.
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The Congressional Research Service reported last year on 30 instances of federal statutes and regulations which assure that government does not subsidize religious practices of receiving organizations. But CRS also found an additional 51 federal statutes and regulations which disqualify religious organizations or adherents from neutral participation in generalized government programs.29 This needs correction.
There is a growing recognition that faith-based programs can succeed results even when other programs cannot, to combat crime and violence, teen pregnancy, welfare dependency, recidivism, and other social problems. To disqualify them because of their religious component not only violates the notion of neutrality, but denies the most effective assistance that is needed by many Americans.
The ''benefits'' language does not guarantee any benefit to any person or group. Instead, it assures ''equal access'' if and when some benefit is made available. For example, the RFA does not create a program of vouchers for education. If and when a unit of government chose to create them, however, the RFA would simply assure that all individuals and private entities are afforded equal access to them. This is the identical standard already utilized in federal student loan programs and the G–I Bill. Private institutions, including those affiliated with churches, should be permitted to participate under the same standards as public institutions. Neither Notre Dame nor Boston College are disqualified from federal education programs for being Catholic, nor is any other school disqualified on the basis of religion. This is a proper standard which has proven workable, and which should be applied uniformly.
This Amendment Provides The Opportunity to Re-Establish the Religious Freedom Restoration Act
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As this committee is well-aware, the Religious Freedom Amendment also provides the opportunity to buttress the Religious Freedom Restoration Act recently overturned by the Supreme Court.30 I am well-aware that review is still underway regarding possible statutory approaches to this, perhaps linked to federal authority over spending, or perhaps to the commerce clause.
Although some can make a case that the current language of this amendment provides a new constitutional basis for RFRA, it would not difficult to add a brief additional section to the amendment which is specific and direct in re-establishing RFRA. This could easily track RFRA's brief language requiring that government establish both a compelling interest, and use the least restrictive means of furthering that interest. This would mesh well with the intent, purpose, and simplicity of the Religious Freedom Amendment.
Conclusion
Mr. Chairman, I thank you and the Members of the Committee for your time and attention. The American people have never accepted the Supreme Court's extra burdens levied against school prayer and against religious freedoms during the past 35 years. As I mentioned before, it is 26 years since this House has acted upon the necessary constitutional amendment to correct this, and the time to remedy that is now.
INSERT OFFSET RING FOLIOS 1 TO 3 HERE
Mr. CANADY. Thank you, Mr. Istook.
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Mr. Scott's recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. First, Mr. Bishop, did I understand your testimony to reflect your opposition to the last phrase in the amendment, ''deny equal access to a benefit on account of religion?'' You don't support that part of it.
Mr. BISHOP. I indicated not an opposition to it, but a willingness, if the committee in its wisdom felt that in order to pull a good workable, well-crafted document together, that that language needed to be deleted, then I would accede to it for the very reasons that some of the opponents of the amendment have raised.
Mr. SCOTT. Well, would it be a good idea or a bad idea to delete that last phrase?
Mr. BISHOP. I think in the interest of arriving at a consensus, in the interest of trying to get some language that would have fewer opponents, it would certainly, I think, improve its chances if it were deleted.
Mr. SCOTT. Let me ask——
Mr. BISHOP. I think that that raises some additional questions that we probably don't have to raise if we want to really get at the religious freedoms that we're talking about.
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Mr. SCOTT. Mr. Istook, let me ask a couple of questions on the wording itself. Where you say ''the people's right''—we go back and forth on this in other parts of the Constitution, like the right to bear arms, whether that's a collective right or an individual's right. What do you mean in this amendment?
Mr. ISTOOK. As I indicated in my testimony, Mr. Scott, I believe it conveys an individual and a collective right which, again, is consistent with other language in several portions of the Constitution, the Bill of Rights, and the amendments there, too.
Mr. SCOTT. And if it's a collective right, does that mean that majority can rule to determine which beliefs will be expressed?
Mr. ISTOOK. No, that is not what it means. The ability to express one belief is not the same as the ability to exclude another belief.
Mr. SCOTT. Okay, well, let me ask a more specific question.
Mr. ISTOOK. Sure.
Mr. SCOTT. You're talking about putting religious symbols on public property. How does a religion get its stuff onto the public property?
Mr. ISTOOK. For example, go across the Potomac River to Arlington National Cemetery; see the crosses and the Stars of David which are the chosen method of marking the graves; yet, you have court decisions, for example, that have said that a cemetery planter on public property in the shape of a cross was not permitted. This is why I mentioned the standard of Marsh v. Chambers which the U.S. Supreme Court had ruled applies to——
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Mr. SCOTT. I only have 5 minutes, now.
Mr. ISTOOK. Let me just finish the point—this is why I mention that we are doing nothing more than preserving this standard of Marsh v. Chambers and the various types of activities which are expressly enumerated in it.
Mr. SCOTT. Well, my question, I guess, more directly was, if you are of a minority religion, do you have the right to get your religious symbols onto the public park along with the symbols of the majority religions? Are all religions entitled to be represented?
Mr. ISTOOK. We believe in the right of equal access. Again, as I indicated in my testimony, the same opportunity has to be afforded to different faiths.
Mr. SCOTT. All religions.
Mr. ISTOOK. Certainly.
Mr. SCOTT. So, if you have—is there any minimum threshold in terms of population? If one person is the only person in a large city that believes in a certain religion—satanism, for example—that they can put their stuff right up beside a nativity scene?
Mr. ISTOOK. I think what you'll find is that the frequency of uses of different symbols will tend to reflect the frequency with which it occurs in the population.
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Mr. SCOTT. Do you have a right—does the person believing in satanism have the right to get their stuff right beside the nativity scene?
Mr. ISTOOK. Again, we're not talking about a right of juxtaposition; we're talking about a right of equal access. You're—let me finish.
Mr. SCOTT. Does the city council have to vote to decide who gets their stuff beside the nativity scene?
Mr. ISTOOK. Again, Mr. Scott, as I mention here, we're not talking about a right of which things have to be juxtaposed to each other. That is what the Supreme Court tried to do in the Allegheny case, saying that some things had to be butted up against each other for balance. The Lynch v. Donnelly case didn't——
Mr. SCOTT. How is the decision made?
Mr. ISTOOK. The decision is going to be——
Mr. SCOTT. By city council? You have to take a vote?
Mr. ISTOOK. It's going to depend upon the locality. For example, you don't have a city council making every decision of what happens in the city. You have decisions made upon who is going to rent different facilities——
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Mr. SCOTT. The city manager?
Mr. ISTOOK. It could be a city manager; it could be other level employees. I think the important thing is to recognize that you don't make a Federal case out of every time that someone wants that.
Mr. SCOTT. Let me ask another question before time runs out.
Mr. CANADY. Without objection, the gentleman will have two additional minutes.
Mr. SCOTT. Thank you.
Let me get to school prayer. You have in here that you ''shall not''—you had ''initiate or designate''; now you have ''prescribe school prayers.'' Does that suggest that you could prescribe things other than school prayers like Bible readings?
Mr. ISTOOK. No.
Mr. SCOTT. Then why do you have school prayers?
Mr. ISTOOK. Because that is the explicit ones that have been covered by the principal decisions. If you notice, of course, the language says not only that the government ''shall not require any person to join in prayer,'' but it also says, ''shall not require any person to join in other religious activity.'' So, we do——
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Mr. SCOTT. Well, you have ''prescribe school prayers,'' but that's——
Mr. ISTOOK. Again, that is an extra level of protection, frankly, because we want it to be clear——
Mr. SCOTT. Okay. Let me—I only have a little time—let me ask another question. In terms—when you get these school prayers going, is the language in this amendment where ''the rights shall not be infringed''—does that give religious speech more of a priority than any other kind of speech?
Mr. ISTOOK. No, because, for example, a child does have a right to stand up and——
Mr. SCOTT. No?
Mr. ISTOOK. No, not in the circumstance of which you mean, for example, in the school classroom.
Mr. SCOTT. And, so who would decide how long students could pray?
Mr. ISTOOK. You have, for example, any type of activity in a public school such as a devotional that may be something that's under an assigned advisor; it may be subject to a student council or whatever. The point is that the ability to regulate the time, manner, and place of free speech rights already exists in public schools even though the First Amendment is stated in absolutist terms. It would be no different——
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Mr. SCOTT. Well, let me see if I can get another one in real quick before it's over. If you're funding drug treatment programs, and some are religiously-oriented where participation in the religion is a condition for participation, and it's the only one funded, are you suggesting that participation in the religious activity as a condition of participating in the only drug treatment program—would that be allowed if this amendment passes?
Mr. ISTOOK. In your example, you said that would be the only one funded; that is not what we seek. We seek only fair and equal treatment in that fashion, not to have this be the exclusive type of program that would be funded.
Mr. CANADY. The gentleman's additional time has expired.
Mr. Hyde.
Mr. HYDE. I have no questions.
Mr. CANADY. Mr. Jenkins.
Mr. JENKINS. Thank you, Mr. Chairman. I don't have any questions at this time.
Mr. CANADY. Mr. Barr.
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Mr. BARR. Mr. Chairman, I very much appreciate the hearing today, and appreciate these witnesses, particularly, my good friend and colleague, Congressman Bishop from Georgia.
And while I appreciate the law school effort to engage in Socratic questioning here in all sorts of hypotheticals, and any one of us could probably come up with some convoluted hypothetical that would result in a result that might appear unusual on its face, the fact of the matter is that I think what Mr. Istook and the others have put forward here is a common-sense proposal that will result in more religious freedom. I think very consistent with the principles underlying our foundation, our founding as a country, and I think that what we will see if this is enacted is not a lot of Socratic questioning and convoluted hypotheticals, but a little more common sense brought into an arena that I think our Founding Fathers believed and anticipated would be handled with common sense. And that is not forcing religion on anybody, but allowing for communities in the exercise of their judgment, reflecting the will of the people, not satanism, but the will of the people with regard to legitimate religious practices and preferences to express those, and not to have their freedom to express their religious views through symbols, which are very important to religion, struck down by arcane readings of—and very tortured misinterpretation of—our Constitution. So, I think this is a very sound proposal. I'm very happy that it has been put forward.
I appreciate, Mr. Chairman, your bringing forward these hearings and look forward to hearing further on this and hopefully enacting—passing this important piece of legislation. I very much appreciate our colleagues being with us today.
Mr. HYDE. Mr. Chairman.
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Mr. CANADY. Mr. Hyde.
Mr. HYDE. I still don't have any questions, but I can't forebear commenting that we open every session of Congress with a prayer. I don't recall any satanic verses getting sneaked in up there on the podium. The Supreme Court opens with an utterance which I would classify in the prayer category. Many courts do, and I think the courts have functioned effectively, as Congress has, none the worse for the prayer. So, that's my comment.
And to Mr. Edwards, I just want to say that you included Frankenstein and Dracula; I want to thank you for omitting Dr. Jekyll and Mr. Hyde. [Laughter.]
Mr. EDWARDS. Very good. Mr. Chairman, would it be appropriate, since Mr. Hyde has responded and Mr. Campbell also responded to comments I made, to make a brief response to that?
Mr. CANADY. The time is Mr. Hyde's.
Mr. HYDE. Sure, I invite that.
Mr. EDWARDS. And I will be—try to be brief, but, Mr. Hyde, I have great respect for your respect for the Constitution, and as we deal with this constitutional issue—and it ought to be addressed with Socratic legal questions, because it is amending the first words of the First Amendment to the Bill of Rights—I've still found no one yet today answering the dilemma of: Either you have full censorship in student-initiated school prayers or you must allow all religions to have equal access to the public classroom for their prayers. And while perhaps it is not a pretty picture that some of us would agree with, the fact is there are religions with which animal sacrifice is a very important part of their prayer ritual.
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Last night on the airplane from Dallas to Washington, a couple handed me this book called, ''The Santeria Experience'' which was sitting in the back seat of their airplane from Missouri to Dallas before they came to Washington. This book was written by a woman who has a degree in anthropology from Columbia University, and she is a believer in this particular religion. She basically outlines in here a very explicit case as part of their prayer ritual where a priest in their religion, basically, with his fingers, cuts off the heads of two doves, and then begins to drink the blood of those doves. That is incredibly offensive probably to me and to most people in this room, but the question is, if we're to have equal access to all religions and not just a favored few, then the satanic prayer would have to be allowed, and there are satanic cults in America. The animal sacrifice prayer ritual would have to be allowed, I assume, on courthouse steps and in third grade classrooms, and I think those are important questions that should be addressed before this amendment is voted upon.
Mr. HYDE. Well, Mr. Edwards, why haven't we had a satanic prayer in opening Congress?
Mr. EDWARDS. Mr. Chairman—Mr. Hyde, I can't answer that question, but the key point——
Mr. HYDE. Well, I can, and that's because there's no support for it.
Mr. EDWARDS. Well, but the key point is—Mr. Istook said that all religions should have a right to equal access, and no one in this room would deny that there are believers in Satan in this country; no one could deny that there is a religion that's a very strong one in the Caribbean nations, now growing in the United States, called the Santeria experience, and these people, I assume would be given the same right to our public classroom and our third grade children and our courthouses as any other religious faith. If they're denied that opportunity, then we are breaking the principle of the Establishment Clause, and government is all of a sudden choosing between satanic prayers, Santeria religions, and other religions, and that's what I find very offensive in this constitutional amendment.
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Mr. HYDE. My rejoinder is simply that, theoretically, neutrality between all religions is the ideal, but common sense, practical support, or lack of support, would winnow down those——
Mr. NADLER. Would the gentleman yield? Would the gentleman yield?
Mr. HYDE [continuing]. That would actually enjoy that equal access. And, lastly, I don't know you could have equal access all at the same time. That would create a cacophony——
Mr. NADLER. Would the gentleman yield?
Mr. HYDE. I gather the gentleman wants me to yield, yes. [Laughter.]
Mr. NADLER. Yes, let me——
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.
Mr. NADLER. Thank you.
Let me just finish with the following question: Obviously, there's no support in Congress for a satanic opening prayer or for a Santeria cult which is a major—becoming a major religion in Florida and the Bronx.
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Mr. HYDE. Well, why is that? Why isn't there someone working——
Mr. NADLER. Because they haven't elected anybody yet. [Laughter.]
But that's in Congress where we have——
Mr. HYDE. It's because of the people.
Mr. NADLER. Let me just say this: The question is out in the country where it isn't the question of having elected someone to Congress—nobody's going to stand up on the floor of Congress and say, ''the satanic minister that I got to say the opening prayer this morning . . .,'' because there's no significant political support, significant enough to have elected someone to Congress yet. But, out in the country there are these people, and you say common sense would rule, but what you're really saying is that the majority would rule, and aren't you really saying that the majority which views certain religious expressions as antithetical to theirs or as obnoxious should prevail over the minority views, and aren't you setting up the majority religion against minority religions?
Mr. HYDE. Well, I don't think so at all, but I think equal access means equal access. If there's support for a faith or a practice—now, we had Timothy Leary, the League for Spiritual Development, trying to pass off the use of drugs, controlled substances, as a religious exercise. Of course, we're familiar with the peyote case, too, and what—yes, Mr. Istook?
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Mr. ISTOOK. If I might mention something to this particular discussion—I find it very interesting to hear anyone argue that we should stop a child from praying and tell them that it's to protect them against satanism that we're stopping them from praying. I think that's kind of the argument that we're hearing, but, Mr. Chairman, you see, you're talking about a circumstance that already exists under the First Amendment.
The Religious Freedom Amendment does not create any new problem with the general issue of lewd or ludicrous behavior occurring in the name of religion. There are a number of court decisions which already deal with that. I mention several of them in a portion of my statement which I did not read, but, for example, the courts have determined that free exercise of religion is not a license to disregard general statutes on behavior, such as outlawing polygamy; the use of illegal drugs; prostitution, and even snake-handling.
I'm sure, Mr. Chairman, you and other members of this subcommittee, are familiar with the Supreme Court decision in the City of Hialeah v. Babalu, where they held that a community could not adopt certain ordinances, ostensibly to protect animals that were in fact aimed at the Santeria cult and its practices. There, you're not talking about anything that's created by the Religious Freedom Amendment; you're talking about something that has always been there under First Amendment rights in this country, and as the chairman correctly pointed out, it has never been a serious problem. Why? Because you're talking about something that numerically is but a tiny fraction compared to the positive exercises and influence of religion.
So, I would submit, Mr. Chairman, that I don't think some people really mean it when they say, ''We ought to stop prayers by students in order to protect them against satanism.'' I don't think that's really their objective.
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Mr. HYDE. Thank you, Mr. Chairman.
Mr. CANADY. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you.
Mr. Istook, since I only have a few minutes, I'd ask you to answer briefly, please, not with long discourses, because I have a number of questions.
First of all, you say faith-based programs should not be disqualified. So, do you mean to say that under your amendment—because I read your amendment this way—that government—that in a given community if I were entitled to some benefit, let's say, a free lunch or food—well, not food stamps, but a free lunch program; the government were running a free lunch program through a church, that I should be required, as a condition to getting a free lunch, to listen to a religious lecture saying that I should—well, because, let's say that the city council decided that the only place in that town to get the free lunch was going to be through some church, which decided as a condition of giving out the free lunches were to give religious indoctrination in their sect. That would be okay under your amendment, would it not?
Mr. ISTOOK. I don't think that's what the amendment specifies at all, because you're talking about a program for which the purpose is to feed people.
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Mr. NADLER. That's right.
Mr. ISTOOK. That's distinct from a program, for example, that may be designed to rehabilitate people; to help them to improve their——
Mr. NADLER. Well, you can't—excuse me—you can't deny access, sir, you can't deny equal access to a benefit on account of religion. The benefit is running this program for distributing free lunches. Let's say the city council chooses to do it at a church that decides that, if you're going to get the free lunch, you're going to hear a religious lecture. How—since you cannot deny the equal access on account of religion, why would that not be constitutionally-permitted?
Mr. ISTOOK. Again, as I was saying, if the purpose of the program is to feed people a free lunch; it is not part of any rehabilitative or character-building process, and if you told someone that they could not receive a government-paid free lunch except if they received a religious lecture at the same time, then you would be violating the terms of the Religious Freedom Amendment, because you would be requiring them to engage in a religious activity in order to receive a benefit.
So, we need to distinguish what we are talking about on faith-based programs. The faith-based programs are not ones such as you described that may be, for example, a soup kitchen. You're talking about someone being required to receive a sermon in order to receive a government-paid lunch. That is distinct from something that is trying to help someone to build character, to get on their feet, for drug rehabilitation——
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Mr. NADLER. All right, well, let's go into that then. Could a court sentence someone and say, ''You must go to—you have a choice between going to jail or going to the drug rehab program,'' and the drug rehab program is in a Lutheran church which indoctrinates people in Lutheranism?
Mr. ISTOOK. Well, again, I——
Mr. NADLER. Could they or could they not under your amendment?
Mr. ISTOOK. The fact that something is held in a church—I mean, they have voting polls——
Mr. NADLER. I didn't say in church; I said a situation where the program is in order to rehab this person, we try to make them a religious Lutheran, or whatever. Under your amendment that would be permissible for the court to do, would it not?
Mr. ISTOOK. No, I——
Mr. NADLER. Yes or no?
Mr. ISTOOK. I think that if the court were offering an option only of a faith-based program, that would not be proper; that would not be authorized under this amendment——
Mr. NADLER. Because?
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Mr. ISTOOK [continuing]. But, if that were one of the options——
Mr. NADLER. Because—why wouldn't it be?
Mr. ISTOOK. If that were one of the options that——
Mr. NADLER. Why wouldn't that be proper, sir, under your amendment?
Mr. ISTOOK. Because, the amendment specifies that no person is compelled to join in any sort of religious activity. That is explicit; that is expressed in the First Amendment.
Mr. NADLER. You can go to jail is the other option.
Okay. Let me ask you a different question. Let's assume that—now, the government can't promote, can't write a prayer. The government can't write a prayer under your amendment, obviously.
Mr. ISTOOK. No, no the government cannot.
Mr. NADLER. I just said that, ''cannot.''
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Mr. ISTOOK. Oh, I'm sorry. I didn't hear the——
Mr. NADLER. The government can't write a prayer, fine. But, a group could organize, and a class could by majority vote decide to say a prayer every day, and the minority members could walk out? That's what you're thinking?
Mr. ISTOOK. Okay, are we talking about composition or are you talking about listening? If someone doesn't want to listen to a prayer——
Mr. NADLER. But, who would decide to make this prayer? The class would vote on it?
Mr. ISTOOK. Again, there are different mechanisms whereby a decision may be made. It could be a class-level decision; it could be a student council decision; it could be a——
Mr. NADLER. All right, but some organized body?
Mr. ISTOOK. The point is they have the freedom to make the decisions, yes, as you say; some would have the freedom to walk out.
Mr. NADLER. Okay.
Mr. ISTOOK. That happens right now with some kids that walk out on——
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Mr. NADLER. All right—sir, answer the question, please. Now, would anything stop the student government or the majority of the class from composing a prayer—now, don't tell me that this is ancient doctrine, because I'm using it to illustrate a point—composing a prayer in one county that talked about saving the souls of the dammed Papists or in another county talked about saving the souls of the heretic Protestants or in a third county talked about saving the souls of the perfidious Jews, in other words, wrote into the prayer that people had to participate in or walk out of a very sectarian doctrine?
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.
Mr. NADLER. Thank you.
Mr. ISTOOK. I think you misconceive the notion here. We're not talking about any group getting together to approve or put a stamp on saying, ''This is the prayer.'' The example that you cite where somebody may offer a prayer that contains something that offends someone else is common to all sorts of expression. It is not unique to prayer. It happens every day in public schools that children say something——
Mr. NADLER. We don't force——
Mr. ISTOOK [continuing]. That others disagree with ardently; that's a part of life.
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Mr. NADLER. Excuse me, sir, but we allow people—people can discuss things, but when you're having a group prayer, albeit, someone has the right to walk out of it, that's giving the group imprimatur to that view, whatever it is.
Mr. ISTOOK. Mr. Nadler, the amendment expressly says, ''We are not imposing the content of a proscribed—''
Mr. NADLER. No, but you're allowing a majority, whether in the student council or a majority in the classroom, to do so. Correct?
Mr. ISTOOK. I allow people the freedom of assembly and of association. If, collectively, they wish to say things that are different, they have the ability. If, collectively, they wish to say something——
Mr. NADLER. Excuse me, sir, under the current law——
Mr. ISTOOK [continuing]. That is free speech.
Mr. NADLER. Under the current law, if a group wants to get together in school at three o'clock, they can get together and have the Protestant association or the Jewish association, the Satanist association, the Catholic—whatever they want, and say whatever prayer they want in school under current law. No one can stop them; that's the current law. What you're saying——
Mr. ISTOOK. It's not the current law, but go ahead.
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Mr. NADLER. That is the current law, and the Supreme Court decisions have said so, and if some administrators are mistaken, they should be corrected, but that's the current law. What you're saying is that in homeroom classes—I remember, I went through this when I was a kid—in homeroom classes a majority may force the minority to participate, either to participate in a prayer obnoxious to their belief or to get up, to declare themselves a minority, and walk out.
Mr. ISTOOK. Not under this amendment, Mr. Nadler. The amendment has nothing that compels anyone to join in prayer——
Mr. NADLER. Or to walk out, I said.
Mr. ISTOOK. Mr. Nadler, no. You see, some people have the notion that if you don't like what somebody else is saying, you have to make a demonstration, and make a big case, and walk out of it and not listen to something with which you may disagree. As Justice Potter Stewart wrote in dissents in these cases, ''Why, if we believe in diversity, do we try to silence people—''
Mr. NADLER. I got your point. Let me ask——
Mr. ISTOOK. Mr. Nadler, you asked me a question; I'm trying to respond to it.
Mr. NADLER. Sir, let me ask—please don't filibuster—let me ask you the last question.
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Mr. CANADY. The gentleman's time has expired.
Mr. NADLER. I'll ask for unanimous consent for one additional minute.
Mr. CANADY. Without objection, the gentleman will have one additional minute.
Mr. NADLER. Thank you.
Let's assume that there are 20 people in a classroom who have one belief and 10 who have another. Under your amendment, can those 20 people force the recitation of a prayer expressing their belief every morning, and giving no opportunity to the other 10 people to have the public expression of their prayer?
Mr. ISTOOK. No.
Mr. NADLER. No? And, if—let me just finish——
Mr. ISTOOK. I've already answered.
Mr. NADLER. Would they alternate with the other 10 people every morning? I mean, how would that work? And, why not under your amendment? Show me where they can't.
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Mr. ISTOOK. Well, again, if you read the language of the amendment, there is nothing that authorizes imposition of joining in prayer; in fact, it is expressly prohibited that anyone would be——
Mr. NADLER. Well, you misunderstood my question. Those 20 people——
Mr. ISTOOK. No, I didn't. I understood your question.
Mr. NADLER. No, it was those 20—you deliberately misunderstood my question, I think.
Mr. ISTOOK. No, Mr. Nadler, I understood your question, believe me.
Mr. NADLER. Those 20 people would have the right to, themselves, get up and aloud recite this prayer every day, correct?
Mr. CANADY. The gentleman's time has expired.
Mr. NADLER. Correct.
Mr. ISTOOK. I don't even know which group you're talking about now.
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Mr. NADLER. The majority group.
Mr. CANADY. The gentleman's additional, additional time has expired. [Laughter.]
The gentlelady from California.
Ms. WATERS. Thank you very much, Mr. Chairman.
As I have read this amendment, in essence, it's a restatement of what is guaranteed to us in the Constitution. One of the very, very profound and basic principles on which this country was founded had to do with freedom of religion. Now, if this amendment is intended to stop people from litigating, I don't think that's going to be the case. We would all like it if we didn't have so much litigation, if there were not so many challenges; however, this is not going to stop challenges, and in the final analysis it all reverts back to the Constitution of the United States that guarantees us religion freedom.
What is it, Congressman, that this amendment would do that the Constitution does not already do?
Mr. ISTOOK. Ms. Waters, I certainly agree with you that this amendment does what so many of us believe the Constitution is intended to do, and until 35 years ago effectively was doing under the court decisions. We wish an amendment weren't necessary, but when you have to bring the courts back into line with what you're talking about, there's no other choice.
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I know you say that there will still be litigation; there's always going to be litigation, but, Ms. Waters, perhaps sometimes if some of the people who litigate to push their intolerance to silence religious expression, perhaps if they started losing instead of winning those cases, maybe there wouldn't be as much litigation, and there wouldn't be as much intolerance either.
Ms. WATERS. Congressman, let me just say this: When I talk about litigation, I'm talking about it from both sides, from all sides. The courts are made up of human beings, of individuals. Sometimes we have a Supreme Court that I can embrace who interprets the Constitution in the same manner that I would interpret it, but that's going to change with appointments. It's going to change with the various minds and the philosophies that are appointed to that court. No law is going to block litigation from any side. There will be times when you will support what the Constitution decides—or what the Supreme Court decides; there will be times when you will not support it. So, if this is intended to make everybody who's appointed to the Supreme Court, or any other court, think the same way, Mr. Istook, this does not do it.
As a matter of fact, you should be very comfortable that, despite some imperfections in the Constitution as it was originally adopted—and thank God for the ability to strengthen it in places that it needs to be strengthened—that this one portion of it has held us all in good stead. Your amendment can't do more than the Constitution has guaranteed us: freedom of speech. And, again, if you're trying to decide what every court is going to decide, that's impossible. You're going to have litigation from all sides as long as we have democracy. Of course, that's what democracy is all about.
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So I don't understand what you intend to do. What is it you're trying to do? I know what's been stated, but let me, again, just lay my point of view out: You can't do better than the Supreme Court and the—well, the Constitution that's guaranteed us freedom of religion. You can't decide what any given court will be like. There will be appointments by Presidents of imperfect human beings who will sometimes vote one way and other courts who will vote another way. So, what do you hope to do with this amendment?
Mr. ISTOOK. Well, Ms. Waters, I think your argument there is basically saying that no Constitution means anything and no law means anything, because if you expect the courts to follow it, you're trying to impose on them in some way.
Ms. WATERS. No, I didn't say that.
Mr. ISTOOK. I don't think we're trying to impose any uniformity of thought or uniformity of belief. We're trying to protect the rights of people; we're trying to take a Constitution which obviously you revere, and I revere, which was not a challenge to the courts in interpretation of this area until approximately 35 years ago. So, when you say, ''What are we trying to do?''—we're trying to correct errors that 75 percent of the American people believe have been made by the Supreme Court——
Ms. WATERS. Don't you think that's better done on a case-by-case basis, Mr. Istook?
Mr. ISTOOK. That it's done on a case-by-case basis?
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Ms. WATERS. Yes.
Mr. ISTOOK. Well, that's why this does not take a case-by-case basis, Ms. Waters——
Ms. WATERS. Don't you think that's better?
Mr. ISTOOK. This is talking about—well, if you take it case by case——
Mr. CANADY. The gentlelady's time has expired. Without objection, the gentlelady will have two additional minutes.
Ms. WATERS. Thank you.
Mr. ISTOOK. If you take it only case by case without the principles, without the guidelines of a Constitution, of a system of statutes as well, of the rule of law, if it's just case by case, then you're really saying that judges have nothing to guide them except their own personal——
Ms. WATERS. Mr. Istook, the Constitution is your guideline; it doesn't go away.
Mr. ISTOOK. That's the point. That's why it's not just done case by case.
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Ms. WATERS. It doesn't escape—we can't escape, and we don't want to escape the Constitution; that's the guide. It guarantees us freedom of religion. There are going to be cases where someone believes his or her freedom of religion has been denied under some circumstance. They will evolve in this democracy from time to time, whether you have your amendment or not. The members of the Supreme Court will always have the Constitution to refer to. I mean, that's the basis of the decision. It doesn't matter whether your amendment is in place or any other amendment; the Constitution doesn't go away. That is what they use to frame their decisions with. Sometimes you will agree; sometimes you will disagree. So what is it you hope this amendment will do? It will not stop the appointees to the Supreme Court or any other court from making decisions you may or may not like.
Mr. ISTOOK. I don't think we can have it both ways, Ms. Waters. We cannot promote the fact of saying that judges are going to make their own decision no matter what the Constitution says——
Ms. WATERS. We didn't say that.
Mr. ISTOOK [continuing]. And on the other hand say that the Constitution is their guide. It's because, Ms. Waters, the vast majority of the American people—as I say, about 75 percent—believe that the Court has gone off-track, has misinterpreted the Constitution, and despite changes in the Court, because of the principles of res judicata and stare decisis, has stayed on that track for 35 years. This is the mechanism established by the Constitution for correcting it.
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Ms. WATERS. If I may—so, you think that your amendment will stop these human beings from misinterpretation? Is that what you think?
Mr. ISTOOK. I think it's going to make it much more difficult for them to misinterpret this area of the Constitution.
Ms. WATERS. Well, but, do you think it's going to stop them from misinterpreting the Constitution? Now——
Mr. ISTOOK. As I said in my testimony, I went through a number of Supreme Court cases of the last 35 years, and I specified how I believe this would change the results.
Ms. WATERS. But that——
Mr. CANADY. The gentlelady's time has expired.
Ms. WATERS. Unanimous consent for one more minute.
Mr. CANADY. Without objection, the gentlelady will have one additional minute.
Ms. WATERS. You have gone through 35 cases that perhaps you disagree with, and you think your amendment would have, had it been in place, caused a different interpretation by those who sat at that time? Is that what you think?
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Mr. ISTOOK. Ms. Waters, if you believe that people on the Supreme Court, as you say, are committed to follow the Constitution, and when the Constitution changes—and it has changed, of course, on a number of occasions—then certainly I think that you would have to believe that their decisions would change in line with the change in the Constitution.
Ms. WATERS. Mr. Istook, there has been nothing to change the Constitution that guarantees us freedom of religion—nothing. Nothing, nothing, nothing has changed.
Mr. ISTOOK. The interpretation is what has changed.
Ms. WATERS. Mr. Istook, interpretations will be interpretations. If I had my way, I would get rid of most of the members of the Supreme Court today, but I don't have my way, and I won't have my way next year, the year after that. There have been times when I have agreed——
Mr. CANADY. The gentlelady's additional time has expired.
Ms. WATERS. Thank you, Mr. Chairman.
Mr. CANADY. Mr. Jenkins.
Mr. JENKINS. Mr. Chairman, in my newness, I still have a tendency to look not to the rhetoric that we hear in this committee, but to the words of each document that we have before us, and I see in this joint resolution two simple sentences. I believe the language of those two sentences is language that an overwhelming majority of the people in the First Congressional District of Tennessee would agree with. I really believe that an overwhelming majority of the people across this land would agree with these. They've been characterized as restatements, and I think that's a correct characterization of these two sentences in this resolution, and I don't think any harm's going to be done if we restate what the Founders meant for us to have in this committee, in the House of Representatives, in the Congress. If we restate it once or if we restate it a dozen times, I don't think any harm will come to our Nation. I don't think any individual will be harmed. I think our Nation will be strengthened, and I intend to support this resolution in this committee and in the House of Representatives.
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And I yield whatever time I left to the chairman, Mr. Canady.
Mr. CANADY. Thank you, Mr. Jenkins.
Mr. Istook, let me ask you to respond to the suggested changes in the amendment advanced by Congressman Bishop. Now, there was a question earlier about one aspect of those changes, but there were really—if I understood Congressman Bishop correctly, he was suggesting that there be two changes in the language of the amendment. The first change being in the first sentence where, if I understood correctly, Congressman Bishop would remove the words, ''to acknowledge God,'' and substitute for those words, ''freedom of religion.'' So, the amendment would read in the first sentence; ''to secure the people's right to freedom of religion according to the dictates of conscience.'' And, then, in the latter part of the amendment, the language beginning on line 17, ''through the end would discriminate''; ''through the end'' would be eliminated, and inserted instead of that language would be, ''not otherwise compel or discriminate against religion.'' What do you think about those changes, Representative Istook?
Mr. ISTOOK. Let me address them in the order that you did. Mr. Chairman, I think although there is not perhaps much legal distinction between saying, ''to guarantee freedom of religion'' rather than ''the ability to acknowledge God,'' there is a great difference in the resonance. That is why I pointed out in my testimony that 45 of the 50 State constitutions expressly mentioned God. Now one or two of those say ''Supreme Ruler of the Universe,'' but almost all of them say ''God'' or ''Almighty God.''
Mr. CANADY. So, from that, I would conclude that you would not be supportive of that first change——
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Mr. ISTOOK. That's correct.
Mr. CANADY [continuing]. In the amendment.
Mr. ISTOOK. That's correct.
Mr. CANADY. Congressman Bishop.
Mr. ISTOOK. On the——
Mr. CANADY. I think Congressman Bishop wants to say something.
Mr. ISTOOK. Certainly. Then we'll get to the second one.
Mr. BISHOP. I think all of us have had an opportunity have the benefits of research, and of course the American Law Division of the Congressional Reserve Service pointed out, and I think correctly so, that the use of the word ''God'' can mean different things to different people, particularly in the context that we're dealing with.
And it seems to me that we are opening ourselves up for extensive litigation if we put something in there that's going to be viewed in so many different ways by so many different people. In order to eliminate that and to try to really get to the heart of what I think Mr. Istook and so many of us feel the benefit of this amendment would be, and that is to allow prayer on public property, given the limitations, I think that it would improve, I think, the amendment a great deal to substitute that language.
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Mr. CANADY. Mr. Istook, what about the second change in the amendment suggested by Congressman Bishop?
Mr. ISTOOK. Certainly. The second change—and I'll be as candid as I can—philosophically, I believe that it is absolutely imperative to say that there is even-handed treatment of religion. Being even-handed is the only way to be neutral, even though the courts have skewed the notion of neutrality. So I believe that it is important to keep with the benefits language.
I, however, recognize—and Mr. Bishop has made this point—that it does bring into play some different political arguments that relate to this particular amendment. As you're aware, Mr. Chairman, the particular language here is crafted out of a couple of years' worth of effort in trying to take divergent viewpoints and priorities and combine them. And I have certainly pledged myself to those who have participated in that effort, to be true to the product with which we eventually arrived. But I certainly am not blind to the fact that, to some people, the mention of benefits is a kind of a red flag, even though all the amendment does, is to elevate the principle of neutrality and of even-handed treatment.
Mr. CANADY. The gentleman's time has expired. The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman.
Let me say at the outset that I have—and maybe I will surprise some people on the committee by saying this—I have the utmost respect for Mr. Istook. He has been consistent ever since I have been a Member of this Congress in pursuing this objective. I have never gotten the feeling that he had political motivations for it, which is not always the case when people offer constitutional amendments or other proposals for us to consider. I want to start by expressing my utmost respect for his efforts, even though I have some real concerns about this amendment, as I would about any constitutional amendment. I have been consistent in my opposition to constitutional amendments, and I won't have any different opinion on this one, but it's not because I don't respect your motivations and your sincerity in what you believe is important to be achieved.
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Having said that, let me ask just two questions, and hopefully, unless you spend a lot of time expounding on these questions, I'll yield back the balance of my time. I take it that this proposed amendment, first of all, is in addition to the language in the First Amendment to the Constitution, not in substitution for the language that is in the First Amendment; is that correct?
Mr. ISTOOK. Yes, it's intended to interact with it, but absolutely not to replace it.
Mr. WATT. Okay. And that brings me to this dilemma: You, in your opening statement, recited a litany of cases that would be decided or would have been decided differently had this amendment been in place than those cases were decided under the existing First Amendment. So it's obvious that we can't start our assumptions here by saying that this amendment does nothing; it does a lot, because—I mean, you think it does a lot because it would have substantially different outcome in a number of these cases, which leads me to ask the question: How can this proposed amendment peacefully coexist with the First Amendment, when the Supreme Court is called upon to address these same issues that you have said this changes, and it has interpreted the First Amendment to say what it does, and the First Amendment is still there, not substituted by this amendment, but still there in place? What criteria would the Supreme Court apply in deciding these cases that would not put the Supreme Court in a heck of a dilemma trying to decide what provision of the Constitution takes precedence?
Mr. ISTOOK. I think, Mr. Watt—and I very much appreciate your comments and the tenor of them—I don't think that you create a problem that is irreconcilable for the Supreme Court. They constantly have to deal with changes, for example, in the law with Congress. They have a case that goes one way; Congress changes the law, and then the Court says, ''Oops, now we're going to do a 180,'' because the underlying law is changed. Judges deal with that——
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Mr. WATT. But you change the underlying law there; you're leaving in place the underlying law here, which is the First Amendment. You've left it in place. The first question I asked was, Are you overruling—are you substituting for the First Amendment or are you——
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.
Mr. ISTOOK. I think the important thing——
Mr. WATT. I won't interrupt you again.
Mr. ISTOOK. Okay.
Mr. WATT. Go ahead. I'm sorry.
Mr. ISTOOK. I think the important thing is that when you change the underlying law, you can have a statute perhaps that's 20 pages of law, and you may change one paragraph. You've changed the underlying law, but the court still is working within the framework of that particular statute or program, as the case may be. Here, when there is any constitutional amendment, the court is still working within the same framework and the same constitutional principles, but yet now they have some additional factors to consider. It will change some results, but it doesn't change the broad scope of the interaction. They have to do that constantly, of course—compare different parts of the Constitution and how they may interact with one another.
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So even though, frankly, we all know that different judges will have different personal opinions, and the best of them, of course, are able to set those aside, there may be Justices on the Supreme Court that would agree with this amendment; there may be those that would disagree. We have to expect them, however, to follow the rule of law the same as in any other case.
So, again, it is not a unique circumstance to say that the courts have been going in one direction, and then either because the Constitution is changed or sometimes simply by statutory change, their decisions achieve different outcomes. There's nothing unique at all about that.
Mr. WATT. Mr. Chairman, I yield back the balance of my time.
Mr. BISHOP. Will the gentleman yield?
Mr. WATT. Oh, I didn't mean to exclude you from responding, if you wanted to respond. Go right ahead.
Mr. BISHOP. I'd just like to take a stab at it. I think, under the circumstances where the Court would have to apply the rules of construction, which they generally apply in all of the cases, they try to reconcile any differences to the best of their ability without canceling out one provision or the other, without overriding one or the other. The same kind of situation I think that you have with the due process clauses of the 14th and the 5th Amendments—you've got two due process clauses, and they're approached in ways and interpreted in ways, so that they can be construed not to be inconsistent. I think that by having the second amendment, it would allow the Court some more flexibility in trying to render a decision consistent with the free exercise and the freedom of expression, which is what the whole purpose of our effort is.
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Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
The Chair will now recognize himself for 5 minutes.
Mr. Istook, let me ask you this: If your amendment is adopted, would it allow a city to erect and maintain a nativity scene or a menorah at taxpayer expense in a city park during the month of December without including secular symbols or objects in the display?
Mr. ISTOOK. Mr. Chairman, as you know, the case of Lynch v. Donnelly has already determined, the Supreme Court determined, that the fact of ownership——
Mr. CANADY. I just—I don't want to cut you short here.
Mr. ISTOOK. Sure.
Mr. CANADY. But my question isn't about the case of Lynch v. Donnelly. My question is about the impact of your amendment.
Mr. ISTOOK. Again, Mr. Chairman, I don't think the amendment changes what was already established in that particular case. Your question is whether we could have it——
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Mr. CANADY. Let me——
Mr. ISTOOK [continuing]. Absent secular symbols.
Mr. CANADY. Yes, let me repeat it, and just so I can make sure I understand——
Mr. ISTOOK. Okay.
Mr. CANADY [continuing]. Because I think this goes to the heart of the amendment.
Mr. ISTOOK. Certainly.
Mr. CANADY. And just to make certain we're on the same wave length and we understand the impact of it—would the amendment allow a city to erect and maintain a nativity scene or menorah at taxpayer expense in a city park during the month of December without including secular symbols or objects in the display?
Mr. ISTOOK. Okay. Again, addressing now, you know, whether secular objects, and so forth, would need to be included, and I think I said this in my testimony, but since the amendment says it is a permitted activity to have something that recognizes the religious heritage or traditions or beliefs of the people, there would—it removes the need for a secular balance in those displays. Now it does not remove the need for equal treatment and opportunity for different faiths that also may wish to enjoy that same ability.
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Mr. CANADY. But what you're saying is the taxpayers could pay to display simply a cross in the public park, and if others wanted to display other religious objects, they would be allowed to do so, but that would not be at public expense; they'd paid for it themselves? Am I understanding you correctly?
Mr. ISTOOK. Okay. Again, Mr. Chairman, I don't think this law creates that, because the Lynch v. Donnelly case has created it. I will tell you, certainly, I think the better practice is that any such displays ought to be privately-financed and the government should be accommodating the display rather than financing it.
Mr. CANADY. Well, let me——
Mr. ISTOOK. But here what we're trying to do, when we say the people have the right to do these things, that is one reason why the word ''people'' was inserted in there, to——
Mr. CANADY. Yes, and I've heard what you've said about people; I'm not sure I understand it, because you say it means individual but also collective. And when you talk about the people collectively, I think you're talking about government. So I—that's what I'm struggling with a little here.
Now in some places crosses have been displayed on public buildings——
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Mr. ISTOOK. Certainly.
Mr. CANADY [continuing]. At certain times of the year. Under your amendment, would—this is just a variation on the other question—are you saying the government could put up a cross on the public building, but they'd have to allow other people to put similar things up on the building as well, or other religious symbols on the building?
Mr. ISTOOK. I think if—because they are not permitted, under this amendment, to promote any particular faith or to establish it as an official religion, they would have to provide an opportunity, you know, having opened the door, as I think you're kind of referring to, they would have to provide an opportunity for some other faith to be illustrated or demonstrated or recognized.
Mr. CANADY. But they're going to pay for the expression of one faith and not pay for the expression of the other faith?
Mr. ISTOOK. This, Mr. Chairman, is the dilemma, of course, that's been recognized in cases such as Marsh v. Chambers. It's the situation that comes up when you're talking having legislative chaplains, when you have a verse of ''The Star-Spangled Banner'' talking about ''In God we trust,'' and we have ''In God we trust'' on the coinage. There is—and Justice Stewart discussed this in some of his dissents—there is an interrelationship that always has been there in this country, and always will be there, and that is why we have to say the standard is you don't promote a particular faith. ''In God we trust'' does not say, you know, in a Baptist faith or a Jewish faith or a Buddhist faith we trust. God is used generically in that way.
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Mr. NADLER. Would the gentleman yield?
Mr. CANADY. I'd be happy to yield.
Mr. NADLER. Thank you.
I just—following up on the question you were asking, it seems to me there's a fundamental question here. When you say—when the amendment says the people's right to do various things, are you talking—either that word ''people'' is understood as individual or collective or both?
Mr. ISTOOK. Both.
Mr. CANADY. Reclaiming my time, obviously, that's it;, the subject of my question has been addressed throughout the testimony, but what we're trying to grapple with here is exactly how that gets applied in various circumstances.
Mr. NADLER. I understand that. If it is understood collectively, then what Mr. Istook said a moment ago does not quite follow. If it is the people's right collectively to recognize their religious heritage on public property, then the government, which is the people collectively, can establish, as the chairman suggested, a particular religious symbol, whatever the majority wants; it does not say the minority must be afforded the same opportunity. It says the government shall not require any person to——
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Mr. CANADY. My time has expired. Without objection, I will have two additional minutes.
Mr. NADLER. Thank you. It says the government shall not require any person to do various things. It does not say that the people collectively must grant to an individual person the right to display some other religious symbol. So, under this amendment as I read it—and tell me why I'm wrong, please—the people collectively, through government, could decide to display a particular religious symbol for a particular creed, a very narrow creed, for example, the Mormon Church, as a particular creed, and anyone who wasn't a Mormon would have no right—he could petition, but he would have no right to display a different symbol on government land; correct?
Mr. ISTOOK. Okay. First, let me mention, for example, I think you'll find there's nothing narrow about Mormon creed, speaking——
Mr. NADLER. I don't mean—Mr. Istook——
Mr. ISTOOK. I understand that——
Mr. NADLER. I meant not generally accepted as one of the major——
Mr. ISTOOK. When you have—in fact, it's—what?—I think one of the top 10 in size in the country, but that's not your point. Your point——
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Mr. NADLER. No, it was not.
Mr. ISTOOK. Sure. I think the answer to your question, and to the chairman's question, is what I tried to stress in my testimony. The prohibition on establishment of religion remains; it should remain, and that is what prevents, even if it's a collective action through government, as does occur, that is what prevents it from going as far as you were describing, Mr. Nadler. It is what prevents anyone else, when they try to get into promoting a particular faith or a particular creed; we've gone beyond recognition and we've gotten into promotion. The protection arises not from the terms of the Religious Freedom Amendment, but from the interaction of it with the Establishment Clause.
Mr. CANADY. On that point, let me ask, How is the term ''to recognize'' different from the term ''to acknowledge?''
Mr. ISTOOK. If you look at the dictionary, Mr. Chairman, you'll find the words are considered interchangeable, and, frankly, ''recognize'' is used rather than ''acknowledge'' because it's more commonly-used.
Mr. CANADY. Well, it just struck me as a little bit of a strange construction, because I don't usually think of myself as recognizing my own beliefs. I might acknowledge them in some way, think of that as being something—I might recognize the belief of someone else. It just struck me as a little strange. So if the meaning—what you're saying is, essentially, you see those terms as interchangeable?
Mr. ISTOOK. Yes, Mr. Chairman. So, frankly, it has to do with how it, you know, the feel of it as opposed to the impact of it.
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Mr. CANADY. Well, the only point on that, I would say, is sometimes acknowledge specifically——
Mr. SCOTT. Mr. Chairman? Mr. Chairman, I ask unanimous consent that you be given two additional minutes.
Mr. CANADY. Thank you. Without objection. [Laughter.]
The term ''acknowledge'' can have a pretty broad signification. I'm talk about acknowledging—Christians in the Apostle's Creed acknowledge the Creator and the articles of the Christian faith, and that is—and that's true in other religions as well. So that, if you mean by ''recognize'' something as broad as ''acknowledge,'' and if the people here can be equated with the government, that concerns me a little bit. And, you know, I've expressed those concerns about earlier versions of the amendment, but I just wanted to be candid about that.
Let me say, in conclusion, that I want to commend you for all the work that you have put into this. As you know, I believe that there are significant problems that we need address, and I think you have made a very commendable effort, and in a difficult area, to address the issues in a responsible way that respects the rights of all Americans, and I thank you for what you've done, and we will look forward to continuing to work with you on this issue.
I want to thank Congressman Capps for being with us as well today. You've been very patient. And if you have something you'd like to say, I'll recognize you——
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Mr. CAPPS. Well, I just thought the last question that you asked was very, instructive. If you had a display, a public display in the month of December, and I didn't quite get the answer to that question. If there's a cross and a menorah. Would that be paid for out of public budget? And I think the answer to that was yes. Now if that's the case, what about the other objects in that display which would be the secular? First of all, I don't know what they would be; I don't know how the word ''secular'' is being defined here, but I think it's a real turnabout——
Mr. CANADY. They were talking about reindeer and such things.
Mr. CAPPS. Well, I don't know if that's secular—or Christmas trees, or anything, but it would seem very strange that the government would be paying for the specifically-religious symbols, and then out of private funds we pay for the other things. I mean, that tells me what this amendment is really about, and that's actually why I oppose it so strenuously.
Mr. CANADY. Well, my time has expired. Again, I want to thank all of you for being with us. Congressman Bishop, we appreciate your contribution as well. We will look forward to continuing to work with all of you on this important issue.
Now I'd like to ask the members of our next panel to come forward. While the second panel is assembling, the subcommittee will stand in recess for 5 minutes, but don't go far away because we're going to begin in 5 minutes.
[Recess.]
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Mr. CANADY. The subcommittee will be in order.
I want to thank the members of our second panel for being with us here today. On our second panel, we will begin with Craig Parshall, special legal counsel to Concerned Women for America. Mr. Parshall's recent church-state cases include two successful appeals before the second circuit court of appeals in 1996 and 1997, where the free exercise rights of orthodox Jewish believers prevailed over local zoning laws.
Our next panelist is the Reverend Barry W. Lynn, executive director of Americans United for the Separation of Church and State. Reverend Lynn formerly worked as legislative counsel for the Washington office of the American Civil Liberties Union. He is also coauthor of The Right to Religious Liberty, the basic ACLU guide to religious rights, and writes frequently on First Amendment issues for national publications.
Following Reverend Lynn is Jim Henderson, senior counsel with the American Center for Law and Justice. Since 1987, he has represented numerous public school students nationwide who have experienced trouble in public schools over freedom of religious expression. Mr. Henderson has also served as co-counsel in several Supreme Court cases addressing religious liberties.
Next, we will hear from Dr. Derek Davis, director of the J.M. Dawson Institute of Church/State Studies at Baylor University. Dr. Davis is the editor of The Journal of Church and State and the author of Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations.
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The final witness on our second panel will be Professor Mark Scarberry. Professor Scarberry teaches at Pepperdine University School of Law, where he focuses on constitutional issues.
I want to thank each of you for testifying today. We ask that you do your best to summarize your testimony in no more than 5 minutes, and the red light will guide you in that regard. Without objection, of course, your full, written statements will be made a part of the permanent record of this hearing.
Mr. Parshall.
STATEMENT OF CRAIG PARSHALL, SPECIAL LEGAL COUNSEL, CONCERNED WOMEN FOR AMERICA
Mr. PARSHALL. Mr. Chairman and members of the subcommittee, I'm pleased to testify before this subcommittee as special legal counsel to Concerned Women for America in its support for H.J. Res. 78, the Religious Freedom Amendment. There really can be no greater task for America than to complete the vision of the Founding Fathers to secure liberty, and, of course, among those liberties to which they pledged their lives, their fortunes, and their sacred honor, there is no greater liberty than that, of course, religious liberty.
The problem that cries out for the remedy that this amendment provides is not the inadequacy of the language of the First Amendment itself, nor in the vision of the Founding Fathers. The problem, quite frankly, is the inability of the Federal judiciary as a whole to breathe life into the words ''Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.'' In fact, instead of giving life to that promise of liberty, over the last 50 years, by and large, the courts have placed the free exercise of religion into the confines of a legalistic iron lung constructed of bad history and secularistic presumptions.
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Starting with the misguided theory of the wall of separation of church and state that was to be ''high and impregnable,'' in its 1947 decision, the Supreme Court has, within the last 35 years, banned prayer in public school, Bible reading in public school, posting of Ten Commandments on public school walls, a moment of silence or prayer in public school, a nativity scene at Christmas inside a government building, the prayer of a rabbi at a public high school graduation ceremony, and a school district designed to accommodate a religious minority, even though the education provided was to be entirely secular. The lower Federal courts, unfortunately, have followed suit and expanded on this concept, and I have in my printed remarks listed some 14 cases over the last few years which I felt exemplified this type of official hostility, which the judiciary feels is its—should be its official function.
The settled law regarding the breadth and scope of protection for political speech, in contrast, and other nonreligious forms of expression in America, has been arbitrarily denied religious expression, even though the Founders felt that religious practice and expression deserves its own separate listing from speech, press, and assembly, and that's why they constructed it the way they did.
The reason given, supposedly, for this separate, but unequal treatment of religion really lies, I think, in the wrong-headed idea that somehow the establishment clause ought to exist to guarantee the right to be free from seeing or hearing anything of a religious nature with which we might disagree. In summary, the First Amendment has been wrongly interpreted to create a constitutional right to be mentally comfortable, and as a result, it places an intolerable burden on the rights of the religious majority to be silent. It is the most perverse example of what First Amendment scholars usually call the ''hecklers' veto.''
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Unfortunately, because the law functions not only to proscribe conduct in the specific sense, but it also is normative in the types of values that it teaches our citizens and the types of values with which it infuses our Federal, State, and local agencies, bureaucrats of all stripe, color, and kind may not know much about constitutional law, but they certainly know the mantra of the high and impregnable wall of separation between church and state, and they use it rather regularly.
Lawyers like myself who spend a great deal of time dealing with religious freedom cases have seen over the years the constant flood tide of religious freedom violations in public school, in public employment, in public forums of almost every kind—school students banned from wearing religious T-shirts or apparel; school students told they can't bring Bibles into their classes; students prohibited from infusing their sincerely-held religious belief in classroom assignments, even though appropriate, or using religious artifacts in art projects; members of the military being told they can't use religious communications on their email; public employees told that they cannot have Bible studies on their own time during lunch break.
Now those who oppose H.J. Res. 78 often say that these are but a few isolated anomalies. However, I fear that no number of violations of religious freedom will ever convince those. Another popular attack is to trivialize the degree of violations; in effect, to say that these are really not outright persecution; they're mere trifles, as it were, that the faithful should be willing to endure, and that Congress and the American people should not have to bother remedying.
Well, my argument to that is this: It supposes that we are religiously free in America as long as tanks are not rolling over the bodies of religious dissidents or we're not taking the religious faithful and lining them up in front of firing squads. Now if that is the stick of our measurement for religious freedom, we are following a very crooked stick, indeed. I think it's time to reaffirm the common sense of the Founders, which I believe H.J. Res. 78 does. The Supreme Court itself has criticized its own lack of logic and consistency for the last 20 years in church/state law; it is chaos, and not order. It is time for us, the people, to establish order in the realm.
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Lastly, I would call on the words in 1777 of Thomas Jefferson, who write his often-quoted belief that ''Almighty God has created the mind free.'' The time has come now to test whether we as a people shall remain free to be able to express that belief in all the public venues of American life. Thank you.
[The prepared statement of Mr. Parshall follows:]
INSERT OFFSET RING FOLIOS 4 TO 9 HERE
Mr. CANADY. Thank you, Mr. Parshall.
Reverend Lynn.
STATEMENT OF BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND STATE
Mr. LYNN. Thank you very much.
Mr. Chairman, in many ways we don't really need to speculate about the consequences of Mr. Istook's amendment because the results are as plain as the text itself. Let me touch today on just three of the direct, inevitable—and, Mr. Barr—common-sense consequences, each one I think antithetical to basic American values.
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First, the amendment provides for official government recognition of majority faiths. By allowing the people to ''recognize their religious beliefs, heritage, or traditions on public property,'' we would unquestionably permit citizen majorities and government officials to endorse religious, a practice that could make millions of Americans feel like outsiders in their own communities. Publicly-sponsored displays of religious symbols would become the norm, as religious groups vie for government space, blessing, and approval of crosses, menorahs, or scriptural injunctions on courthouse lawns and courthouse walls.
Official declarations of the religious character of geographical areas would be inevitable. If you look behind me at this map of the United States designating the majority religion of each individual county, I ask you this question: Do we really want to encourage Dane County, Wisconsin to declare itself a Catholic county and next door, Dodge County, to proclaim itself a Lutheran county? I hope not. And, in addition, I would not like to see a roadside like this [indicating] posted at the border of any State—not one that recognizes the State of Alabama or any other State as a ''Christian'' place.
The diversity in this country is precious to us, and I think that this amendment encourages a balkanized America, fundamentally at odds with our notions of equality and a decent respect for the over 2,000 religions that coexist here today and to the millions of Americans who have chosen no spiritual path at all.
Today governments cannot deny use of public spaces to religious groups if they are open to secular ones, and we should reject this major leap beyond, as Mr. Istook is presenting it, which permits government itself to own, construct, display, and promote its favorite religious symbols or messages.
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Second, the prohibition of government in denying ''equal access'' to a benefit on account of religion creates a constitutional right for religious groups to demand any benefit a secular group receives. If there are public schools, we would need to finance alternative religious schools. If there is a drug rehabilitation counseling center now done in a secular setting, we would, under this amendment, need to equally fund religious-based counseling at taxpayer expense.
I've spoken to wiccans, practitioners of witchcraft, who want to receive government funds to run preschools. Nation of Islam Security, Incorporated, would love to begin to receive Federal HUD grants again, after losing them under pressure for your colleague, Peter King and others, just last year. They would all be entitled under this amendment.
America made a fundamental decision 200 years ago that even the good works—even the good works—of religious organizations would not be subsidized with tax dollars, but would thrive with voluntary contributions, and that since government would not fund them, they would have the authority to operate without government strings that might strangle the vitality of their missions. This amendment reverses all of that, to the ultimate detriment of faith and of freedom.
Opening up the government's coffers to religious groups demands either represents an unfunded mandate of literally biblical proportions or an invitation to interreligious strife, as various groups plead that their theology leads to better services and their denomination, therefore, requires more dollars.
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Third, this is all about returning organized religious activity to America's public schools. Mr. Istook has become a frequent television debating partner of mine, and he always talks to me about how religious expression is routinely stifled in public schools. So imagine my surprise on April the 18th, 1997, when I looked at this front cover of The New York Times and saw, in Public School 75, a student praying in full view of his fellow classmates and his teacher and even The New York Times. My staff called the New York Board of Education to see what harsh disciplinary measures might have been undertaken against this child, but, honestly, I was surprised at all to learn that no penalty was imposed, nor should it have been, nor that the system had not received a single complaint or even inquiry about this matter, the one except from the member of my staff.
Why? Because students already have the right to pray and read the Bible privately. They have the right to say grace before lunch, distribute religious materials to their friends, and, indeed, form Bible clubs in high schools before and after school. If Pat Robertson and Jerry Falwell and Congressman Istook and Craig and Jim would not spend so much time frightening people into believing that they have few religious rights today, religion would be flourishing at an even greater rate in our public spaces. The stories presented to this committee are either errors, readily resolved with a phone call, or incomplete stories or sometimes downright apocryphal—and, Craig, they are a few isolated anomalies.
This amendment interferes with parental rights to decide what, if any, religious expression their children will be exposed to. Prayer is not seen by most amendment critics as inherently harmful, as Congressman Istook has stated, or as a contaminant, as Mr. Campbell said this morning. It is, however, a powerfully-charged, participatory event between believers and their god—that no government agent should ever set the time, the place, the manner, or the content to accomplish. You don't listen to prayer like you listen to a political ad or a Wheaties commercial. If you believe, you participate in prayer; that's what makes it different.
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This gives an absolute right to religious expression throughout the school day by ''people''—that includes students, teachers, administrators, evangelists from the local Baptist church or the next Heaven's Gate. The flimsy language about not requiring students to participate is a hollow protection full of loopholes and inconsistencies.
Mr. Chairman and members of the committee, there is no constitutional crisis before us today, at least not unless you choose to send this hazardous, sweeping proposal, overturning over two dozen Supreme Court decisions in one fell swoop, out to the States for ratification. As I look at that portrait of Congressman Rodino, I remember that 25 years ago a man named John Dean came to this very committee and said that there was a cancer on the presidency. I believe that, notwithstanding the good intentions of many of its sponsors, this Istook amendment is a malignancy on the First Amendment which would do tremendous harm to the one real guarantor of religious freedom we have in America: the First Amendment as it exists today.
Thank you.
[The prepared statement of Mr. Lynn follows:]
INSERT OFFSET RING FOLIOS 10 TO 15 HERE
Mr. CANADY. Thank you, Reverend Lynn.
Mr. Henderson.
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STATEMENT OF JAMES MATTHEW HENDERSON, SR., SENIOR COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE
Mr. HENDERSON. Thank you, Mr. Chairman. I'll be brief.
I'd like to begin, because I think I heard a plea in the opening remarks for an expression of love for the Constitution as we have it, and I'd like to express my love for the Constitution. But at the same time I question whether anyone on the committee would express their love for this Constitution, the Constitution as it was in 1854, with only 12 amendments—no 13th amendment denying involuntary servitude, no 14th amendment requiring due process of law and equal protection of the law to all of the citizens of the United States, no right for women to vote, no end to the era of prohibition, no right for people under 21 to vote, and no limitation on the members of this body increasing their remuneration during the term in which they serve. The Constitution is a document that I love. It's also a document that guarantees to the members of this committee and all citizens the right to seek its amendment.
Regarding whether or not there is a problem, I would like to say, in response to Mr. Nadler's remarks, that the Equal Access Act is, in fact, Federal law, and it was enacted into law in 1984 and upheld in the Supreme Court of the United States in the case our organization brought in Mergens—Westside Community School v. Mergens. But in 1994, Emily Hsu, a student at the Long Island high school, Roslyn Union Free High School, was prevented from having a Bible club for 6 months prior to litigation, and then kept from having a Bible club until she graduated, without ever being able to have a Bible club, even though it had 10 years been the law that if the school district receives funds and allows other clubs to meet, and is a secondary school, it must, in fact, allow Bible clubs, political groups, and philosophical groups.
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I also represented Misty Newberry. Misty Newberry was arrested by Massac County Sheriff's Department and Metropolis, Illinois police and placed into a sheriff's county cruiser for the crime of praying in the morning before the first bell rang, when she had the right to be on campus, but was not required yet to be in the classroom, with a group of five other students, around a flag pole, during the National Day of Student Prayer. And while it is true that some cases are resolved favorably to the students' rights, and Misty's was, not all cases are resolved favorably to the students' rights.
In fact, it's not just about students, either. I also represent Reverend Pierre Bynum, who's the associate pastor of Waldorf Christian Assembly in Waldorf, Maryland. Reverend Bynum was threatened with arrest not 500 yards from here in the United States Capitol Building proper as he was conducting a private tour of the opened areas of the Capitol, and included in his tour, in his conduct of the tour, moments of quiet devotional reflection and prayer, and was told by not one, but two separate United States Capitol police officers that prayer was a form of prohibited demonstration, and if he continued it, he would be arrested and subjected to prosecution.
There is a problem. Our organization, the American Center for Law and Justice, in 2 years, beginning in July 1995 and ending in June 1997, obtained records or contacts from students and parents of: 20 instances of students being prevented from praying or being disciplined from praying in American public schools; 106 instances of students being disciplined or corrected for bringing a Bible or a religious book to campus, or for reading it on campus when they had no other obligation on them; 51 instances of students being disciplined or barred from distributing religious materials from students during times when it would not disrupt school order or discipline to do so; 130 instances of school officials barring the formation of student-led Bible clubs or prayer groups, or denying such groups equal access to school announcements, school fairs, the annual homecoming parade, et cetera; 65 instances of students being denied a grade or being required to redo an assignment because their work included reference to religion or their faith; 48 instances of students being denied the right to come into the school building or being compelled to leave because they wore religious emblems or because their T-shirts, which were generally permitted, contained religious messages which were prohibited; and 48 instances of students or student groups being denied the opportunity to participate in music shows and talent shows on campus because of the religious content in their performance.
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The Congress—the Confederate Congress of the United States, under the Articles of Confederation not the southern Confederate Congress, but the Congress of the Confederacy prior to the Constitution, enacted the Northwest Ordinance and reflected great wisdom in their recognition that ''religion, morality, and knowledge were necessary to good government and the happiness of mankind,'' and that the diffusion of religion, morality, and good government are intimately linked with schools and the means of education.
So while some public advocacy groups decry the need for Religious Freedom Amendment, under the apparent fear that too much religious freedom would harm us in our public life, this attorney knows how valuable and helpful the amendment proposed by H.J. Res. 78 would be. Thank you.
[The prepared statement of Mr. Henderson follows:]
PREPARED STATEMENT OF JAMES MATTHEW HENDERSON, SR., SENIOR COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE
The views expressed herein are those of the author alone.) I would like to thank the chairman and the Subcommittee for the courtesy of the invitation to testify today in support of the proposed Religious Freedom Amendment propounded in H.J. Res. 78. The task set for this body is to weigh the need for and wisdom of an amendment to the Constitution of the United States. Those who hereafter consider what this Congress does may wonder whether an amendment to the Constitution securing the religious liberties of the people is wanted or warranted today. House Joint Resolution 78, proposing a Religious Freedom Amendment, is welcome in the present climate of dispute over the role of religion in public life.
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The Religious Freedom Amendment proposed in H.J. Res. 78 states:
To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed. The Government shall not require any person to join in prayer or other religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.
H.J. Res. 78 proposes an amendment that builds upon and combines key provisions of two amendments proposed in the 104th Congress, one by Representative Istook and another by Representative Hyde.
The proposed amendment is needed to bring to an end a decades-long era of intolerance toward religious expression and practice. Undoubtedly some opponents of the amendment will be heard to question whether conditions presently prevailing warrant an amendment. For the constitutional agnostics, I would offer the subcommittee a few instances from the caseload of the American Center for Law and Justice that plumb the depths of the problem.
THE U.S. CAPITOL: NO PRAYING ALLOWED
I represent Reverend Pierre Bynum, Associate Pastor of Waldorf Christian Assembly in nearby Maryland. Last month, after more than six months of negotiations intended to avoid litigation, I filed suit on Reverend Bynum's behalf against the United States Capitol Police and its Board. That suit challenges the constitutionality of a policy of the Capitol police under which members of the public are prohibited from praying inside the Capitol building.
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In November 1996, Reverend Bynum led a small group from another local church on a private tour of the United States Capitol. That tour—intended to illuminate the religious history and heritage of our Nation and to guide the participants in obeying a scriptural mandate to pray for those in authority—included visits to several significant sites in the Capitol building, including the Washington cornerstone, Statuary Hall and the Rotunda. Each stop of the tour included both an interpretation of the historical religious significance of the site and a brief time of quiet devotional reflection and prayer.
The tour began with the Washington cornerstone. There, Reverend Bynum reflected on the mixture in the life of the Nation's first president of deep and abiding faith with participation in the cultic practices of freemasonry. Then the group quietly prayed that our Nation would be one of Washington's deep and abiding faith, and one delivered from the ill-effects of cultic practices such as freemasonry.
The next stop on the tour was Statuary Hall. As the group assembled there, Reverend Bynum was confronted by a uniformed Capitol police officer. The officer stated that the group had been observed praying, and that praying was prohibited in the Capitol. Ultimately, after questioning, the officer explained that there was not a rule that banned prayer as such. Rather, there was a rule banning demonstrations in the Capitol and the Capitol police, as a matter of practice and enforcement, interpreted prayer as a form of prohibited demonstration.
When Reverend Bynum asked the officer about the consequences of continued prayer, the officer stated that continuing prayer would result in arrest and prosecution. After the officer left the group, the tour participants and Reverend Bynum decided to attempt to continue their prayer tour. In order to avoid detection, they agreed among themselves to omit further folding of hands, bowing of heads, closing of eyes or other devotional affects. Instead of praying in the manner to which they were normally accustomed, they appeared to be in conversation with one another. Even though Capitol police officers followed them for the remainder of the trip, they escaped detection. Thus, through subterfuge and cunning, Reverend Bynum and his group avoided criminal prosecution for praying in our Nation's Capitol.
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If the Religious Freedom Amendment is adopted, such repressive conduct will be significantly reduced in frequency, or ended altogether. The language of the amendment, in its current form, guarantees the right of the people to acknowledge religious belief on public property. Such acknowledgment, no longer the crime for which punishment was threatened against Reverend Bynum, would be restored in dignity to the stature that our Founders contemplated for such activities.
THE NATIONAL DAY OF STUDENT PRAYER: ARREST YOU AT THE POLE
Metropolis, Illinois, fancies itself the hometown of that legendary man of steel, Superman. Located in Massac County, just atop the Illinois-Kentucky border, Metropolis became a key flash point in the struggle over the right of the people to acknowledge their religion and religious heritage in public school settings. In September, 1992, Misty Newberry was a senior at Massac County High School. No slouch, no troublemaker, Misty had excellent grades, a good reputation, and had received the school's recognition for her volunteer service in the school's administrative offices. But the clouded perception of public officials regarding the right of Misty and other students to join together in prayer before the school day began soon led to threats against her reputation and her honors, and to her arrest and confinement like an accused criminal in a police cruiser.
Early in September, Misty had learned about an event being conducted by students in schools across America. The event was the National Day of Student Prayer, sometimes called ''See You At The Pole.'' Misty's youth pastor had told her about the event and encouraged her to consider participating. With a small circle of friends, Misty joined in quiet prayer in the minutes prior to the ringing of the first bell at school. The students stood in a circle, hands joined, around the school's flagpole.
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Together and individually, the students prayed for each other, for their fellow students, for the school faculty and administration, and for their community. Only one thing went wrong for these students: they were seen praying by school officials, who called the City police who called the County Sheriff. Soon officers of the law were on campus with the purpose of breaking up the student prayer gathering.
When the students declined the officers' demand to discontinue their prayer, the officers sprang into action. Misty and a classmate were grabbed and placed under arrest and confined in a police cruiser. One officer who had menaced the students—while they prayed—with a can of mace entered the front seat of the cruiser in which Misty was confined and waved the can of mace around again. Misty and her fellow in prayer crime were confined to the cruiser for about fifteen to twenty minutes, and failed to report to class in accordance with the bells ringing on campus.
Finally, the principal of Misty's school concluded that she had probably learned her lesson and could be released. The administrator asked the police and sheriff's deputy to carry her around behind the school in the cruiser and then, out of sight of the student body, to release her. After she was allowed to return to school, Misty's nightmare had not ended. Soon school administrators revoked the honor given to Misty for her service to the school and threatened to jeopardize her good academic standing.
Fortunately for Misty and her friends, Misty's grandmother had heard about her granddaughter's plan to participate in the prayer event. So when Misty stood on campus praying with her friends, Misty's grandmother stood just off the campus videotaping the event. That fortunate fact made it possible to prove to the school board that the prayer event was not disruptive and that the actions of the school authorities and the police officials were a shocking counterpoint to the peaceful and lawful conduct of the students. Ultimately the school district apologized to Misty and she received a financial settlement from the police, but reparations and apologies do little to restore the broken trust of a student whose only offense was prayer. This and dozens of other ugly incidents should not be happening. The Religious Freedom Amendment is needed to insure that such incidents become a thing of the past.
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After Representative Istook introduced H.J. Res. 78, some public interest groups immediately began a program of disinformation to give the impression that there was no need for a Religious Freedom Amendment. People for the American Way, for example, published this statement on their worldwide web site:
[T]his Religious Coercion Amendment is not only unnecessary but also would be devastating to religious liberty in America by ushering in a new wave of divisive government-sponsored religious activity.
Americans United for Separation of Church and State, in their June 12, 1997, Federal Legislative Update stated:
This 'school prayer and public funding of religious institutions' amendment was introduced in the House with over 130 co-sponsors.
In Americans United's ''Talking Points on H.J.Res. 78,'' published at that group s worldwide web site, the claim is also made:
No new amendment is needed to guarantee a student's right to pray in public schools. H.J.Res. 78 is designed to permit coercive programs of group prayer in public schools.
And, not to be left behind in criticism of H.J.Res., the American Civil Liberties Union published a press release at its website. In that release, the ACLU stated:
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'A constitutional amendment is unnecessary. In truth . . . this proposed amendment is about permitting religious majorities to impose their beliefs and practices on minorities by using the public schools as a proselytizing platform.'
And yet, despite the coordinated rhetoric of these groups, Misty Newberry and Reverend Bynum have felt the sting of religiously-oriented suppression. It is cold comfort indeed for Misty and Pierre to know that Americans United, the ACLU, and People for the American Way hold their right to be free from suppression of their religion in high esteem. The constitutional amendment proposed in H.J.Res. 78 is not designed to protect religious liberties from private suppression. Rather, the amendment strips government agencies and actors of the wherewithal to suppress religion.
Beyond the anecdotal evidence provided by the stories of Pierre Bynum and Misty Newberry, there is other substantial evidence of a real and continuing problem over students' rights of religious freedom in the public schools. The American Center for Law and Justice, for which I work, recently surveyed its intake records for the period from July 1, 1995 through June 13, 1997, to take stock of the numbers and kinds of incidents in which students have suffered deprivation of religious liberties. That survey uncovered over 450 instances in which the religious content of student expression or activity prompted some school authority to restrict religious freedom.
Those incidents included:
20 instances of students being prevented from praying or being subjected to discipline for praying
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106 instances in which students were disciplined or corrected for bringing a bible or a religious book with them to school or reading their bibles or religious books on campus
51 instances of students disciplined for, or barred from, sharing religious writings with students
130 instances of school officials barring the formation of student-led bible clubs or prayer groups, or denying such groups equal access in accord with federal law
65 instances of students being denied a grade or being required to redo an assignment because of the inclusion of religious content in their work
48 instances of restricting or prohibiting the wearing of shirts, clothing or jewelry bearing religious messages
48 instances of students or student groups being denied the opportunity to participate in music or talent shows because of religious content in their performances
This summary of incidents suggests strongly that public school officials and their attorneys have forgotten something that the Congress well knew at the time of its adoption of the Northwest Ordinance. In the Ordinance, the Congress stated that ''[r]eligion, morality, and knowledge'' were ''necessary to good government and the happiness of mankind,'' and that the diffusion of ''[r]eligion, morality, and knowledge'' are intimately linked with ''schools and the means of education.'' And so, while some public advocacy groups decry the need for a Religious Freedom Amendment, under the apparent fear that too much religious freedom would do harm to our public life, this attorney knows how valuable and helpful the amendment proposed by H.J. Res. 78 would be.
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Mr. CANADY. Dr. Davis.
STATEMENT OF DEREK H. DAVIS, DIRECTOR, J.M. DAWSON INSTITUTE OF CHURCH/STATE STUDIES, BAYLOR UNIVERSITY
Mr. DAVIS. Thank you, Mr. Chairman. I have a number of concerns about the proposed amendment. In my allotted time, I'll share just a few.
To begin with, the proposed amendment is considerably more far-reaching in its effects than most American realize, and if passed and ratified, would overturn more than two centuries of settled church/state theory and practice in the United States.
I share the concerns of those who support the amendment concerning the moral slide in America, the antidote to which, at least in part, supposedly is this amendment. But this measure is no answer, and, in my view, its passage would only worsen the situation. This proposal performs radical surgery on the First Amendment, a surgery from which I fear many of the basic freedoms now guaranteed by the First Amendment would never recover.
The proposed amendment has two basic aims. The first is to address the right of Americans to engage in prayer and other religious acts on public property, but the wording is very ambiguous. It attempts to secure the people's right to pray and acknowledge their religious beliefs on public property, but who are the people? One interpretation, as you, Mr. Chairman, alluded to earlier, would be that this term includes not only private citizens, but also citizens acting through their government representatives. If so, then school boards could authorize teacher-led prayer, ignoring prior Supreme Court decisions that limit classroom and commencement exercise prayer. It would also mean that local and State governments, acting for the people, could declare Texas to be a Baptist State; Utah, a Mormon State; and the United States, a Christian nation. I think Mr. Istook earlier expressed his belief that the intention of the amendment would not carry this result, but I would tend to disagree, based on the literal wording of the amendment.
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Even under the narrowest construction of this amendment, children would still be allowed to offer classroom prayers, probably on a rotating basis, to whomever they want—to God, to Allah, to the Reverend Sung Yung Moon, to satan, to sophia, or to any other conceivable deity. While the amendment champions this arrangement as religious liberty, it would, I believe, actually devalue religious, even trivialize religion, particularly in the minds of young children. Whatever may be said about the right of each person within American society to express his or her belief through public prayer, one should question whether we want to convey the message that every religious and philosophical belief is on equal par with all others.
The second purpose of the amendment is to provide that government shall not discriminate against religion or deny equal access to a benefit on account of religion. This provision alone turns First Amendment jurisprudence on its ear. State and Federal Governments would be required to fund religion, just as they now fund secular activities. This makes the so-called accommodation approach to the Establishment Clause interpretation a reality. Government may fund religion as long as it does so nondiscriminatorily. All 2,000-or-so religious groups in America would have their hand out for their share of benefits. Even if we could afford it, the effects would be disastrous to religion in several basic ways.
First, religious groups would lose their autonomy from government and a new era of government regulation would follow, made necessary by churches' use of government dollars.
Second, fearful of the loss of benefits, churches would over time resign their prophetic role in society. Churches with their hand out will be far less bold in calling government to account, far less willing to challenge and critique questionable government policies.
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Third, government could never equally fund all religions, even if it wanted to. Religions with less political clout will be denied their share of the pie. It will be a free-for-all, hardly what should characterize religion in America.
Moreover, under this amendment, citizens would be required through their taxes to support and advance other persons' religious beliefs, even those religions the taxpayer finds offensive. Jefferson and Madison, and a whole host of the other Founders, if possible, would rise from their graves in protest.
What is most offensive to me about this amendment is the effect it would have on religious minorities. Because, according to a recent poll by Goldhaber Research Associates, 83.8 percent of American religion is still Christian, 83 percent of the benefits could, and probably would, go to Christian churches and organizations. This is, if I may be so critical of many of my fellow Christian evangelicals who support the idea, a back-door method of ''claiming the culture for Christ,'' as I heard one of the amendment's nonpresent supporters put it.
If Christianity cannot be formally established in the U.S., this amendment achieves the next best thing: an informal establishment made possible by the flood of benefits flowing to Christian groups. Religious minorities would be crushed under the weight of Christian majoritarianism, which is precisely why you'll struggle to find many informed members of religious minorities who favor this amendment. What Madison called in Federalist 10, ''the superior force of an interested and overbearing majority'' would surely have found a way to prevail under this amendment. If we wish to drive a huge wedge between non-Christians and their government, a good way to do it would be to pass this amendment.
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In sum, this amendment would open up practices we thought we were putting behind us 200 years ago, when our Constitution and Bill of Rights were adopted. It would present a return to ancient and medieval thinking, where religion and government were merged and thought to be indistinguishable in their goals. Those societies, including Greece, the Roman Empire, and medieval Europe, believed that the advancement of religion by government was essential to social solidarity and the happiness of the people. The modern idea of the separation of church and state resulted from the religious pluralism that was an outgrowth of the Reformation, and the accompanying recognition that religion is perhaps more a matter of private conscience than public concern.
The atrocities of the Middle Ages and the Reformation, in which hundreds of thousands died in inquisitions, pogroms, witch hunts, and religious wars, were thought to be the result of government having too much authority in matters of religion. In the U.S., the First Amendment's proscription against religious establishments and its allowance for the free exercise of religion virtually guaranteed a religiously-pluralistic society, and the inability of any form of faith to achieve dominance.
Passage of the proposed amendment would create a whole new framework of fusion of religion and government—in essence, a reversal of the separation that occurred at the founding, and a return to the classical and medieval-type polity in which government actively promoted religion as the glue of the social order. That we would now begin seriously considering retreating from our national commitment to the separation of church and state is, indeed, lamentable.
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The separation idea, as a grand experiment in human history, is still in a state of infancy. It is to be expected that problems within the separation framework will arise from time to time. The solution is not to rewrite the First Amendment, but to give our courts and legislatures time and space to work out problems as they arise. And if the courts' decisions are necessarily complex at times, we must invest more time in educating the American people and in educating our educators, so that they will not make the great mistake of denying to a child the right to pray at lunch, read her Bible on the bus, or express faith during recess—none of which have ever been countenanced by the law.
I would urge you, therefore, to work for the defeat of this amendment. Its supporters seem genuine in their motives to expand religious liberty in our great Nation, but this amendment, like so many similar attempts by government leaders to aid religion throughout western history, would actually do real damage to religious persons and religious institutions.
I thank you for your time.
[The prepared statement of Mr. Davis follows:]
PREPARED STATEMENT OF DEREK H. DAVIS J.W. DAWSON INSTITUTE OF CHURCH/STATE STUDIES, BAYLOR UNIVERSITY
To begin with, the proposed amendment is considerably more far-reaching in its effects than most Americans realize, and if passed and ratified by the states, would overture more than two centuries of settled church-state theory and practice in the United States. I share the concerns of those who support the amendment concerning the moral slide in America, the antidote to which, at least in part, is supposedly this amendment, but this amendment is no answer, and in my view its passage will only worsen the situation. This proposal performs radical surgery on the First Amendment, a surgery from which I fear many of the freedoms now guaranteed by the First Amendment might never recover.
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The proposed amendment has two basic aims. The first is to address the right of Americans to engage in prayer and other religious acts on public property. Of course the obvious but unstated goal here is to increase religious activity in the public schools. But school children already have the right to pray silently at any time, to gather to pray and study before or after school or at lunchtime, to wear clothing with religious symbols or messages, to distribute religious literature provided the educational process is not disrupted, and, under the Equal Access Act, to form prayer and Bible study groups in most middle and high schools. So what is really intended by the proposed amendment? Frankly, it is not clear. The wording is very ambiguous. It attempts to secure the ''people's'' right to pray and acknowledge their religious beliefs on public property. But who are the ''people''? This could refer to the free exercise rights of private citizens in public forums, but it is subject to a broader interpretation. The ''people'' could refer to the people acting through their government representatives. If so, then local school boards would have the right to institute teacher-led prayers, meaning that the amendment would effectively overrule the Engel, Schempp, and Wiseman decisions which limit classroom and commencement prayer. It would also mean that local and state governments, acting for the people, could declare Texas to be a Baptist state, Utah a Mormon state, and the U.S. a Xian nation. A narrower construction would require judges to rule in favor of students whose ''private'' religious activities are sometimes limited by the Establishment Clause under current rulings. For example, courts are divided over the question of whether a high school senior class should be permitted to hold an election to designate one of its members to lead a commencement prayer. Some courts say this is protected by the Free Exercise Clause; others say the practice violates the Establishment Clause because the school is still in charge of the ceremony, is making facilities available, is giving tacit endorsement of the religious activity, etc. The courts that have frowned on the practice have all made the point that submitting the matter to majority vote is disrespectful of religious minorities, and amounts to a circumvention of the spirit of the Bill of Rights. My own view is that we should leave such complex matters in the hands of the courts, giving them the time and latitude to resolve such issues rather than prematurely preempting them through a constitutional amendment.
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Even under a narrow construction, children would still be allowed to offer classroom prayers, probably on a rotating basis, to whomever they want-to God, to Allah, to the Rev. Sun Yung Moon, to Satan, to Sofia, or to any other conceivable deity. While the amendment champions this arrangement as ''religious liberty,'' it would, I believe, actually devalue religion, even trivialize religion, particularly in the minds of young children. Whatever may be said about the right of each person within American society to express his or her belief through public prayer, one should question whether we want to convey the message that every religious and philosophical belief is on equal par with all others.
The second purpose of the amendment is to provide that government shall not ''discriminate against religion or deny equal access to a benefit on account of religion.'' This provision alone turns current First Amendment jurisprudence on its ear. State and federal government would be required to fund religion just as they now fund secular activities. This makes the so-called ''accommodation'' approach to Establishment Clause interpretation a reality. Government may fund religion, as long as it does so nondiscriminatorily. All 2000 or so religious groups in America will have their hand out for their share of benefits. Even if we could afford it, the effects would be disastrous to religion in several basic ways. First, religious groups would lose their autonomy from government, and a new era of government regulation would follow made necessary by churches' use of government dollars. Second, fearful of the loss of benefits, churches would, over time, resign their ''prophetic role'' in society; churches with their hand out will be far less bold in calling government to account, far less willing to challenge and critique questionable government policies. Third, government could never equally fund all religions even if it wanted to. Religions with less political clout win be denied their share of the pie. It will be a ''free for all,'' hardly what should characterize religion in America. Moreover, under this amendment citizens would be required through their taxes to support and advance other persons' religious beliefs, even those religions the taxpayer finds offensive. Jefferson, Madison, and a host of other founders, if possible, would rise from their graves in protest.
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What is most offensive to me about this amendment is the effect it would have on religious minorities. Because, at least according to a recent poll by Goldhaber Research Associates, 83.8 percent of American religion is still Christian, 83.8 percent of the benefits could (and probably would) go to Christian churches and organizations. This is, if I may be so critical of many of my fellow Christian evangelicals who support the idea, a ''back-door'' method of ''claiming the culture for Christ,'' as one of the amendment's supporters put it. It is never God's work to ride the back of government to advance a religious message. If Christianity cannot be formally established in the U.S, this amendment achieves the next best thing: an informal establishment made possible by the flood of benefits flowing to Christian groups. Religious minorities would be crushed under the weight of Christian majoritarianism, which is precisely why you will struggle to find informed members of religious minorities who favor this amendment. What Madison called in Federalist #10 ''the superior force of an interested and overbearing majority,'' would surely have found a way to prevail under this amendment. If we wish to drive a huge wedge between non-Christians and their government, a good way to do it would be to pass this amendment.
In sum, this amendment would open up practices we thought we were putting behind us two hundred years ago when our Constitution and Bill of Rights were adopted. It would represent a return to ancient and medieval thinking where religion and goveniment were merged and thought to be indistinguishable in their goals. Those societies, including Greece, the Roman Empire, and Medieval Europe, believed that the advancement of religion by government was essential to social solidarity and the happiness of the people. The modem idea of the separation of church and state resulted from the religious pluralism that was an outgrowth of the Reformation, and the accompanying recognition that religion is perhaps more a matter of private conscience than public concern. The atrocities of the Middle Ages and the Reformation in which hundreds of thousands died in Inquisitions, pogroms, witch-hunts, and religious wars, were thought to be the result of government having too much authority in matters of religion. In the U.S., the First Amendment's proscription against religious establishments and its allowance for the free exercise of religion virtually guaranteed a religiously pluralistic society-and the inability of any foffn of faith to achieve dominance. Passage of the proposed amendment would create a whole new framework of fusion of religion and govemment-in essence, a reversal of the separation that occurred at the founding and a return to the classical and medieval type polity in which government actively promoted religion as the glue of the social order. That we would now begin seriously considering retreating from our national commitment to the separation of church and state is indeed lamentable. The separation idea, as a grand experiment in human history, is still in a state of infancy. It is to be expected that problems within the separation framework will arise from time to time. The solution is not to rewrite the First Amendment, but to give our courts and legislatures the time and space to work out problems as they arise. And if the courts' decisions are necessarily complex at times, we must invest more time in educating the American people and in educating our educators, so that they will not make the grave mistake of denying to a child the right to pray at lunch, read her bible on the bus, or share her faith during recess, all of which are the unfortunate product of notions that have never been countenanced by the law.
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I urge you to work for the defeat of the proposed amendment. Its supporters seem genuine in their motives to expand religious liberty in our great nation, but this amendment, like so many similar attempts by government leaders to aid religion throughout Western history, would actually do real damage to religious persons and religious institutions.
Mr. CANADY. Thank you, Dr. Davis.
Mr. Scarberry.
STATEMENT OF MARK S. SCARBERRY, PROFESSOR, PEPPERDINE UNIVERSITY SCHOOL OF LAW
Mr. SCARBERRY. I thank the chairman. I thank the chairman for holding these hearings and for inviting me to address the subcommittee. I also want to particularly thank Congresswoman Waters, from my home State, for her participation on the subcommittee. I am here on my own behalf, not as a representative of Pepperdine Law School.
We're here because it is thought that the Supreme Court has misinterpreted the language of the First Amendment. So we must be careful that any amendment is clear. That seems to me the first—our first job.
My primary job this morning is to examine the language of the RFA and to help the subcommittee determine how it may be interpreted and where any ambiguities may lie. As a result, I will raise more questions than I answer—perhaps you should expect that from a law professor—and the subcommittee must be the judge of which questions, if any, need to be answered by changes in the text, which by carefully-crafted legislative history and which can be ignored safely.
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First, though, here are my views as to the need for a constitutional amendment: There is probably a need for an amendment to protect religious expression. The Supreme Court has, by and large, provided appropriate protection for religious expression, but many administrators, bureaucrats, and lower court judges fail to do so, despite the best efforts of many groups to educate them. The adoption of an amendment explicitly protecting religious expression should make the point sufficiently.
There is probably also a need for an amendment to prohibit the denial of benefits on account of religious expression, belief, or identity. Government has displaced a large part of the traditionally-private portions of our society and economy. To deny religious groups an equal opportunity to share in public benefits, along with secular private groups, is to place religious groups at a serious disadvantage, and to entice them to shed their religious character. The Supreme Court has moved toward a truly neutral approach in this area, but it has not arrived there yet, and several of the decisions moving in that direction were very closely divided.
Now I do not believe that a school prayer amendment is wise, except perhaps one permitting a moment of silence explicitly for ''prayer or quiet reflection.'' In our pluralistic society, organized group prayer during class time in the public schools would do more harm than good to the cause of religion. Prayers either would tend to oppress the minority or would be so watered-down in content as to harm religion. And I am concerned that the amendment under consideration today is, in effect, a school prayer amendment, as I think the testimony by Representative Istook this morning indicated.
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Rather than go on any further as to my views, I would urge the subcommittee members to re-read the testimony of Professors Michael McConnell and Douglas Laycock before this committee in October 1995 with regard to these matters, of the desirability of an amendment.
Given those comments, it should not be surprising to you that I would actually prefer the Hyde-Hatch version that was proposed in the 104th Congress.
There is, of course, an additional possible reason for a constitutional amendment, because of the City of Boerne case and the striking down of RFRA as applied to the States, but you've already had hearings on that matter, and I won't address it further, except in response to questions.
Now one possible ambiguity in the Religious Freedom Amendment, the RFA, is whether it binds only the Federal Government or also the State governments, in addition. The proposed amendment does not explicitly refer to the States, and the term ''government'' in an amendment to the United States Constitution could be a reference simply to the Federal Government created by that Constitution. It's clear from the testimony of Representative Istook and others that the intent is to bind the State governments, as well as the Federal, and should that be the sense of the subcommittee, that ambiguity ought to be cleared up.
In addition, the proposed amendment may be ambiguous with respect to whether a government may exercise ''the people's right to pray and to recognize their religious beliefs,'' et cetera. As Professor Laycock noted, State governments often prosecute criminal cases on behalf of their citizens as ''the people,'' and so that is a possible reading, and it seems, indeed, that that may be an intended reading from the point of view of the sponsor. The change in the language, however, from the prior version could indicate to the contrary, in that now it specifically is ''the people.'' Even if that interpretation is not correct, the government presumably would be required under the amendment to facilitate the people in exercising their religious rights on public property beyond what the Constitution presently permits or requires.
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It may be that the RFA would require public property to be opened up to religious expression on a much wider basis than the First Amendment presently requires for religious or any other expression. While the Court would not likely require anti-war services to be permitted onboard nuclear submarines, it does seem that perhaps some compelling interest or some other high standard might be applied before public property could be closed to religious expression, and some disruption of public functions might then end up having to be tolerated.
It's not clear whether the amendment would overrule the Lyng case, the Sacred Land Logging Road case, and that's something that could perhaps be clarified. It's also not clear what the effect of the first sentence of the proposed amendment would be on the right of children to pray and express themselves on religious matters in the public schools. It should at least firmly guarantee what is probably already guaranteed: the right to pray nondisruptively, to speak about religion with other students during noninstructional time, and the right to bring a religious viewpoint to bear, where other personal or philosophical viewpoints were permitted.
However, it might require schools to allow students to organize prayer. More likely, it would permit schools to permit organized student prayer on student initiative in effect, then, it is a school prayer amendment. The change to ''prescribe'' from ''initiate'' or ''designate,'' which was suggested by Congressman Istook earlier, could well mean, then, that the school and initiate the prayer, but simply could not prescribe the content of it; and that would, then, go substantially further.
The RFA, as presently worded, would probably not overrule Lee v. Weisman, the high school graduation prayer case, but with the word ''prescribe,'' instead of ''initiate'' or ''designate,'' I believe it would. The RFA, as presently worded, might well be consistent with the Clear Creek decision out of the fifth circuit, allowing students to vote to have a prayer.
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It would seem that the nondiscrimination provision in the RFA would ensure that ''no arm of government may discriminate against religious speech when speech on other subjects is permitted in the same place and at the same time,'' a statement from the seventh circuit's Hedges decision, which was roundly endorsed by Professor McConnell, when he was here 2 years ago.
There might be additional effects, as Congressman Bishop suggested. I do believe the RFA, as presently—the language that it presently contains would allow a voucher program; it probably would not require a voucher program, but a voucher program, if it included private secular schools, would have to include private religious schools.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Scarberry follows:]
PREPARED STATEMENT OF MARK S. SCARBERRY, PROFESSOR, PEPPERDINE UNIVERSITY SCHOOL OF LAW
I would like to thank the chairman for holding these hearings on the important subject of the proposed Religious Freedom Amendment, and for inviting me to address the subcommittee.
My name is Mark S. Scarberry. I am a professor of law at Pepperdine University School of Law. My areas of teaching and study include the constitutional and statutory protection of religious liberty. I have also spent a great deal of time considering how courts interpret language drafted by others—language drafted by state legislators in the commercial law field, language drafted by Congress in the bankruptcy field, and language drafted by those who enter into contracts.
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Few supporters of the Religious Freedom Amendment would suggest that the drafters of the First Amendment had the wrong ideas about religious freedom. We are here largely because it is thought that the Supreme Court has misinterpreted the language of the First Amendment.
Our first thought, then, should be for clarity. If, by undertaking the enormous effort needed to amend the Constitution, we seek to correct a misinterpretation of the Constitution, we must do so in a way that will not itself be misinterpreted. Thus my primary job this morning is to examine the language of the Religious Freedom Amendment and to help the subcommittee determine how that language may be interpreted and where ambiguities may lie.
As a result, I will raise more questions than I answer. The subcommittee must be the judge of which questions, if any, need to be answered by changes in the text of the proposed amendment, which need to be answered by carefully crafted legislative history, and which can be ignored safely. Note that many of these ambiguities are also pointed out in David M. Ackerman's June 11, 1997 analysis of the Religious Freedom Amendment for the Congressional Research Service (the ''CRS Memo''). In referring to the proposed amendment, I will treat it as consisting of two sentences. The first consists of everything through the word ''infringed,'' including the preamble; the second consists of the final sentence of the proposed amendment.
Before raising those questions, I would like to give the subcommittee my views briefly as to the need for a constitutional amendment. There is probably a need for an amendment to protect religious expression. The Supreme Court has by and large provided appropriate protection for religious expression, but many administrators, bureaucrats, and lower court judges fail to do so. Despite the best efforts of many groups to educate them, many of them seemingly continue to believe that the Constitution requires discrimination against religious expression. The adoption of an amendment explicitly protecting religious expression should make the point sufficiently.
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There is probably also a need for an amendment to prohibit the denial of benefits on account of religious expression, belief, or identity. Government—federal and state, including local government—has displaced a large part of the traditionally private portions of our society and economy. To deny religious groups an equal opportunity to share in public benefits along with secular private groups is to place religious groups at a serious disadvantage and to entice them to shed their religious character. For example, I am aware of a group which provides a very valuable service in alternative dispute resolution which changed its name and strongly toned down its religious character in order to obtain government funding. The Supreme Court has moved toward a truly neutral approach in this area, an approach which would not penalize groups for their religious character, but it has not yet arrived, and several of the decisions moving in that direction were closely divided, including the very recent decision in Agostini v. Felton, permitting Title I remedial aid to be provided on parochial school campuses.
I do not believe, however, that a school prayer amendment is wise. In our pluralistic society, organized group prayer during class time in the public schools would do more harm than good to the cause of religion; it would engender bitterness. Prayers either would tend to oppress the minority or would be so watered down in content as to harm the religion that a school prayer amendment seeks to protect. I am concerned that the amendment under consideration today is in effect a school prayer amendment, as I discuss below. In addition, I am concerned that it does not provide clear guidance on the issues with which it is concerned.
Rather than go on at length as to my views on the need for an amendment, I would urge the subcommittee members to reread the testimony Professor Michael McConnell gave before this subcommittee on October 20, 1995, together with the testimony of Professor Douglas Laycock given on the same date. They are, in my view, the two foremost scholarly champions of religious liberty in America today. Their views should carry much more weight than mine, but I agree with both of them that a school prayer amendment would be a mistake. On the need for an amendment to protect religious expression and to prohibit the denial of benefits on account of religion, I think Professor McConnell makes a compelling case. Professor Laycock, though, makes just as strong a case for ensuring that protection of religious expression does not allow persons acting in governmental capacities to favor one religion or to favor religion in general. (By the way, the Ceniceros Equal Access Act case in the Ninth Circuit mentioned in Professor Laycock's testimony was finally decided this year in favor of the students; they are entitled to hold their religious club meeting during the lunch hour. The Equal Access Act continues to be a success)
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Given these comments you will not be surprised that I prefer the amendment proposed in the 104th Congress by Representative Hyde and Senator Hatch.
Of course there is now an additional possible need for a constitutional amendment, because the Supreme Court has held that the Religious Freedom Restoration Act as applied to the States exceeded Congress' authority. You have already held hearings on that matter, and thus I will not address it except in response to any questions.
Now I will address the possible meaning of the proposed amendment before the subcommittee, and in particular the ambiguities which the subcommittee may wish to clarify.
The first possible ambiguity is whether the proposed amendment binds only the federal government or both the federal government and the state governments. The proposed amendment does not explicitly refer to the States, and the term ''Government'' in an amendment to the United States Constitution could be a reference simply to the federal government created by that Constitution. Of course both sentences of the amendment refer to public schools, which implies very strongly that the amendment is intended to bind the States, which for the most part operate the nation's public schools. However, the federal government does operate public schools, at least indirectly, in the District of Columbia, and thus it would be wise to clear up this possible ambiguity.
The preamble language of the proposed amendment creates an additional possible ambiguity. The preamble is an incomplete description of the reasons for the amendment. The amendment deals not only with a right to acknowledge God according to the dictates of conscience but also with a right not to be discriminated against on account of religion. To the extent that the preamble is taken as a preamble to the entire amendment, it could result in the right not to be discriminated against being limited to situations involving an acknowledgment of God or to situations involving religious conduct dictated by conscience. (Under the Religious Freedom Restoration Act courts were split as to whether a person's religious exercise was burdened (1) if he was prohibited from engaging in religiously motivated conduct or (2) only if he was prohibited from engaging in religiously mandated conduct.) The possibility that the nondiscrimination provisions would be limited in that way is perhaps remote, but a very minor change in the text could help protect against that possibility; the colon could be changed to a comma, and the capital ''T'' in the word ''The'' following the colon could be changed to a lower case ''t.'' The result would be that the preamble would not then appear to be a comprehensive description of the rationale for the entire proposed amendment.
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Next, the proposed amendment may be ambiguous with respect to whether a government may exercise ''[t]he people's right to pray and to recognize their religious beliefs, heritage or traditions'' on behalf of the people as their representative. As Professor Douglas Laycock pointed out when he testified before this subcommittee on October 20, 1995, state governments often prosecute criminal cases on behalf of their citizens under the name of ''The People.'' I understand that the change in the language of the proposed amendment from the language contained in H.J. Res. 127 (proposed in the 104th Congress by Representative Istook) may have been designed to ensure that the people directly rather than any government would have the ''right to pray and to recognize their religious beliefs, heritage or traditions.'' But as the CRS Memo points out, the second sentence of the proposed amendment may suggest to the contrary; the express denial to government of the power to require persons to join in prayer or religious activity or to initiate or designate school prayers may naturally be understood as a limitation on the power granted to government by the first sentence. If that is the correct interpretation of the amendment, then the amendment would seem to permit governments such wide latitude that they could even organize and run religious services. (That point was made by Professor Laycock in his October, 1995 testimony.)
I will assume the first sentence of the proposed amendment does not give government the power to organize prayer or any more power than it has at present to recognize religious beliefs, heritage or traditions. Nevertheless, the first sentence may permit or require governments to facilitate ''the people'' in exercising their religious rights on public property beyond what the Constitution presently permits or requires. Presently, the people are entitled to engage in religious (and other) expression in traditional and designated public forums subject only to reasonable, content-neutral time, place and manner regulations. At least that is true so long as there is no compelling state interest in regulating the expression, such as the need to avoid a violation of the Establishment Clause; as a result it is possible that religious expression in a public forum could be restricted if a reasonable observer would believe the government was endorsing the religious expression.(see footnote 1) See Capitol Square Review and Advisory Board v. Pinette, XX U.S. XX, 115 S.Ct. 2440 (1995). Putting the rights of schoolchildren aside for the moment, if the government property is neither a traditional nor a designated public forum, the government need only show that its regulation of expression is reasonable and viewpoint neutral. See Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (requiring school district to make school property available for expression of religious viewpoint on topics which were otherwise permitted topics for evening meetings); Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (upholding restrictions on religious solicitation of funds within airport terminal). For example, a government need not allow demonstrations on military bases or jailhouse grounds. See Greer v. Spock, 424 U.S. 828 (1976); Adderley v. Florida, 385 U.S. 39 (1966).
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It is entirely possible that the first sentence of the proposed amendment would require public property to be opened up to religious expression on a much wider basis than the First Amendment presently requires for religious or any other expression. The First Amendment does not expressly refer to public property; and the historical understanding of the right of free speech which the First Amendment protected from being abridged did not include a right to free speech on all public property. Thus it was not hard for the Supreme Court to conclude that governments could limit expressive conduct on public property other than public forums. The Court could not so easily reach that result as to religious expression under the proposed amendment, because it explicitly protects a right to engage in such expression on public property, including public schools, which are not considered public forums. While the Court likely would not require the government to permit religious anti-war services to be held on board nuclear submarines, it is possible that the Court would require a strong showing—perhaps a compelling interest—before allowing public property to be closed to religious expression. Some disruption of public functions might have to be tolerated. In addition, religious expression might be given preferential treatment over political and other forms of expression under the proposed amendment. (That would then make it necessary for the Court to distinguish between religious expression and other expression, a difficult and perhaps dangerous task.)
For example, it is not clear whether the amendment would overrule Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). In Lyng the Court held that the Free Exercise Clause did not prohibit the United States from building a logging road on government owned land which was sacred to the local Indian tribes even though the building of the road would substantially harm the Indian tribes' ability to exercise their religion. The Court held that the government's use of its own property as it saw fit did not impose a constitutionally cognizable burden on the Indian tribes' exercise of their religion. Under the proposed amendment, it is possible that the Court would hold that the government had infringed the Indian tribes' ''right to pray and to recognize their religious beliefs, heritage, or traditions on public property'' by building the road. Lyng has been much criticized, and perhaps it deserves to be overruled; but that should be done, if at all, consciously rather than as an unintended consequence.
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It is also not clear what effect the first sentence of the proposed amendment would have on the rights of children to pray and to express themselves on religious matters in the public schools. It should at least firmly guarantee what is probably already guaranteed under the First Amendment—for example, the right to pray nondisruptively and to speak about religion with other students during noninstructional time, and the right to bring a religious viewpoint to bear during a discussion or presentation where other personal or philosophical viewpoints are permitted. Presumably the Court would not interpret the sentence so as to permit religious students to disrupt the classroom; perhaps, however, the schools might be required to allow students some time each day or each week to pray in a student-sponsored, organized fashion during class time and to ''recognize their religious beliefs, heritage, or traditions'' by speaking to the class about their religion. It is more likely that schools would be permitted to allow students to do so. Representative Istook's letter to Religious Freedom Amendment supporters dated July 14, 1997 states that the intent of the amendment is that student-sponsored prayer would not be banned, and that schools could accommodate such student-sponsored prayer. (Apparently such prayer could be during class time.) That would seem to be a reasonable interpretation of the first sentence of the proposed amendment, especially in light of the second sentence; the prohibitions in the second sentence against government requiring persons to join in prayer or initiating or designating school prayers make the most sense if the first sentence permits class time, voluntary, group prayer. On the other hand, similar limitations were included in the Equal Access Act [see 20 U.S.C.A. §4071(d)] as a precaution even though it, of course, was subject to the Establishment Clause; perhaps their inclusion in this proposed amendment would thus not signal a change to the Establishment Clause ban on formal, class time, group prayer.
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If the change to the second sentence is made which is suggested by the July 14 letter—substituting ''prescribe'' for ''initiate or designate''—then the implication could well be that the school could initiate and organize prayer so long as it did not prescribe the prayer to be used. The July 14 letter states that accommodation of student-sponsored prayer is the goal, but the revised language of the proposed amendment could well be interpreted to allow school sponsorship.
It does not seem that the proposed amendment would overrule Lee v. Weisman, 505 U.S. 577 (1992). In Lee a school board had invited a rabbi to give a nonsectarian prayer at a public high school graduation ceremony. The Court held that the inclusion of the prayer violated the Establishment Clause. In Lee the school board initiated the prayer, and thus the second sentence of the proposed amendment would seem to require the same result reached by the Court in Lee. It is possible that the proposed amendment would be consistent with the Fifth Circuit's decision in Jones v. Clear Creek Independent School District, 977 F.2d 963 (1992) (''Clear Creek II''); in Clear Creek II the Fifth Circuit held that a prayer could be included in the graduation ceremony without running afoul of Lee if inclusion of the prayer resulted from a vote of the graduating students. The question might be whether the students, exercising authority delegated by the school, were acting in a governmental capacity and thus prohibited from initiating school prayer. (If the change suggested by the July 14 letter were adopted, then it seems likely the amendment would overrule Lee.)
It is also not clear whether the proposed amendment would give nonstudents the right to go onto public school grounds during the school day to meet with students for prayer or other religious expression.
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The second sentence of the proposed amendment restates existing law in providing that the government ''shall not require any person to join in prayer or other religious activity.'' As noted above, in order to give some effect to this portion of the amendment, a court may determine that the first sentence gives power to the government which is limited by this language.
The provision of the second sentence to the effect that ''The Government shall not . . . discriminate against religion'' would presumably reinforce the first sentence in protecting private religious speech even where a reasonable observer erroneously might conclude that the government was endorsing religion. It would seem to ensure that ''no arm of government may discriminate against religious speech when speech on other subjects is permitted in the same place at the same time;'' that statement, roundly endorsed by Professor McConnell in his October, 1995 testimony, comes from the Seventh Circuit's opinion in Hedges v. Wauconda Community School Dist, 9 F.3d 1295 (1993). Perhaps that provision would also mean that where governments accept nonreligious reasons for granting exemptions from otherwise applicable law, governments must also accept religious reasons. This is reminiscent of the way in which Justice Scalia in Smith distinguished Sherbert v. Verner and the other unemployment compensation cases. There might well be additional effects.
Finally, the provision of the second sentence prohibiting a denial of ''equal access to benefits on account of religion'' would seem to guarantee that even pervasively religious institutions (such as elementary and secondary parochial schools) could not be denied funding simply because of their religious character. There is a strong argument under existing authority—especially Mueller v. Allen, 463 U.S. 388 (1983)—that states may include religious schools in general school voucher programs. Arguably they must if they include secular private schools, but it is possible to argue that exclusion of religious schools is justified to avoid an Establishment Clause problem. However, under the equal access to benefits provision of the proposed amendment the result should be clear. Any voucher program including private secular schools would need to include religious schools as well, and that could be done without violating the Establishment Clause. It is possible that the equal access to benefits provision could mandate that a school district issue vouchers; absent vouchers a parent who exercises the constitutional right to have the student educated at a religious school forfeits a major public benefit—arguably that is discrimination ''on account of religion.'' However, that is not a likely interpretation, as Professor Laycock noted in his October, 1995 testimony before this subcommittee. An additional problem is how to handle the case in which a religious organization seeks public funding for a social welfare program but then refuses to provide services on a nondiscriminatory basis. Perhaps the legislative history to the amendment should point to the provisions adopted as part of the welfare reform package which permit religious organizations to receive grants to provide social services, which safeguard the autonomy and identity of the religious organizations, but which also require nondiscriminatory treatment of those for whom the aid is ultimately intended. In an educational setting, however, because the students help to set the tone of the institution and help to shape its religious character, religious nondiscrimination in aid recipients should not be required.
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Mr. CANADY. Thank you, Mr. Scarberry.
Mr. Scott, you're recognized for 5 minutes.
Mr. SCOTT. Mr. Chairman, I'd like to defer to Ms. Waters.
Mr. CANADY. Ms. Waters.
Ms. WATERS. Mr. Chairman and members, I am very surprised that this kind of amendment is thought about by the proponents in such narrow terms, and it's almost as if it's being thought about in terms of: What suits me; what suits my religion, my thinking? And this is very broad.
I would like to ask anyone who considers himself a proponent: What would happen under this amendment if a group of students at a suburban or rural school decided to get together and invite Farrakhan, Minister Farrakhan, to come and lead their group in a Muslim prayer at a school where most all of the parents are Christian. The parents were not asked—they didn't have to be asked—about this, and the students thought, ''Well, it might be a good idea'' or ''I want to know more about what he's talking about. I read something about him, and I think it's time we had Farrakhan in here to—as a matter of fact, we should have him once a week, and maybe we'll vote on it, and maybe we will make sure that this school that's ignored black Muslims and Farrakhan will have an opportunity—we will have an opportunity to learn about it.''? What would happen? Would this amendment allow that?
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Mr. PARSHALL. I'd like to take a stab at it, and I'd also like to hear what Jim has to say, seeing as I think we're the two appointed proponents of this measure.
First of all, the Supreme Court has made it very clear that the First Amendment is not shed at the schoolhouse gate. As it stands right now, there is a great deal of First Amendment speech that is allowed in public schools which you, Ms. Waters, and I might find personally offensive, but is permitted.
On the other hand, it should be emphasized that there is nothing in the Religious Freedom Amendment that completely clears the decks of all of the 50 years of First Amendment jurisprudence that the Supreme Court has created, such things as—and I will mention these—Tinker v. Des Moines, which held that——
Ms. WATERS. Excuse me.
Mr. PARSHALL. Yes.
Ms. WATERS. I want the response to my question specifically.
Mr. PARSHALL. And that's—that's what I'm——
Ms. WATERS. We only have a little time. I want to talk about Farrakhan.
Mr. PARSHALL. I'd be glad to.
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Ms. WATERS. Yes.
Mr. PARSHALL. If it were deemed, first of all, that Mr. Farrakhan were the official sayer of prayers on a once-a-week basis at a public school——
Ms. WATERS. No, I want to know about the school where 99—100 percent of the parents are Christian, and the children decided that they wanted to avail themselves of the religion of Mr. Farrakhan, and the invited him to come in, and decided they wanted him to come in every week, and in a majority vote, they decided to do this. Could that happen under this? Is this what you're trying to protect under this amendment?
Mr. PARSHALL. What we're trying to protect is, first of all, the right of the school district to make decisions about what goes on with the school without worrying about a Federal judge dictating certain things cannot be done——
Ms. WATERS. I want to know about this particular case that I'm——
Mr. PARSHALL. Well, it's very clear to me. If he were brought in on a regular basis for religious purposes, and he was the only one who was brought in on a regular basis in a classroom in a public school, this would not change the situation where most Federal judges would say that is such a clear imprimatur of sponsorship of one particular religion that——
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Ms. WATERS. I'm not—I did not——
Mr. PARSHALL [continuing]. It, therefore, violates the Establishment Clause.
Ms. WATERS. Excuse me. Mr. Parshall, you're not answering my question, and I won't ask you to go any further. And I know why you're not answering my question. You're not answering my question because I have just given you a situation that would not be acceptable to a 100 percent Christian school.
Now whether I'm talking about Mr. Farrakhan or whether or not I'm talking about some people from, say, Jamaica, who have a religion that includes the smoking of gungha—it's marijuana, but it's part of their religion. You don't have to answer this question; I'm going to answer it for you. I posed it.
And my answer is this: My children are grown and they're gone, but I have grandchildren. I want to share my religious beliefs with them. I want to try and get them to embrace the religion that I think is best for them. I don't want them in situations where, when I send them to school to learn, to be educated, to be able to compete for a job, to get them ready for the competition of this society, I don't want everybody else trying to influence their religion. I want to have the opportunity to do that myself.
And so the situation that I just gave you, under everything that I have heard, is a situation where, yes, it could happen. As a matter of fact, this amendment is created to give the most liberal interpretation of religious freedom that could ever be formulated. What you want to do is create situations that go beyond separation of church and state, et cetera, et cetera, et cetera.
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Mr. CANADY. The gentlelady's time has expired. Without objection, the gentlelady will have two additional minutes.
Ms. WATERS. So I guess what I'm trying to point out again is what I tried to point out with the first panel. We are, indeed, fortunate that we have a Constitution with the Bill of Rights that guarantees us religious freedom. On a case-by-case basis, individuals, groups who believe that they have been discriminated against, they should go to court, and they should be able to have their decision looked at, and that's the way it should be.
If you're trying to create a situation where you get rid of the ability of someone to challenge, on either side, then I think it's misdirected and it's misled. It's not that we're not in favor of religion. And this is one of those interesting kinds of questions where many politicians, not all, but many politicians are going to afraid to be on what appears to be the wrong side, because nobody wants their constituents and others to believe that they don't embrace religion in some way, and want to be thought of as good persons, and, unfortunately, will succumb to these arguments without trying to get deeply involved in unveiling what you're creating here. But I, for one, am not going to do that. I'm going to keep bringing people back to the Constitution, to the First Amendment, to separation of church and state.
And I submit to you, in the final analysis, we all have the ability to pray and to participate in our religions in whatever way we want to, based on the guarantees of the Constitution as it stands. This is unnecessary. This will not bind future courts in any way. Where you have individuals appointed by the President to the Supreme Court who will be interpreting the laws of this land, to the best of their ability, you're going to get different interpretations from time to time. None of them will sway from the basic doctrine, though, of freedom of religion. You will never have a court that will stray from the fact that we all have the right guaranteed to us by the Constitution to pursue our religions as we see fit.
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Thank you.
Mr. CANADY. The gentlelady's time has expired. The gentleman from Georgia, Mr. Barr, is recognized.
Mr. BARR. Thank you, Mr. Chairman.
The proposed amendment, reads: ''To secure the people's right to acknowledge God according to the dictates of conscience, the people's right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed. The government shall not require any person to join in prayer or other religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.''
What is there in that, Mr. Davis, that you find trivializes religion, if you would, please?
Mr. DAVIS. Well, Mr. Barr, when I suggested that I feel like the amendment would have the effect of trivializing religion, what I was referring to was the notion that, for example, in the setting of a classroom, if we're going to permit, under the amendment, every student on a rotating basis to pray—a Buddhist, for example, on Monday would offer a Buddhist prayer; a Christian would offer a Christian prayer on Tuesday; a Hindu would offer a Hindu prayer on Wednesday—without any comment coming forth from the teacher, no instruction, no ability to discuss the issues, no potential for engaging in some kind of meaningful discussion about what the meaning of the prayers are, who God is, who the deity is to whom the prayer is directed, what the meaning of the prayer is, how to have a relationship with that particular deity, and I assume that all of these prayers would have to take place without comment. To me, that trivializes religion.
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Meaningful faith is faith which occurs in an atmosphere, an environment, in which discussion and meaningful instruction can take place, so that the person who is considering becoming a person of faith can be fully informed about what he or she is interested in believing.
Mr. BARR. If I related, as I don't need to, because I presume that at least most of us here know the Lord's Prayer, ''Our Father which art in heaven, hallowed be thy name,'' et cetera, would that require some sort of learned exposition in order for it to have some meaning to people? Why would simply praying being trivializing religion simply because it doesn't have a learned doctor of divinity to explain it and go into all the in's and out's and great mystical meaning of religion?
I think that children, in particular, have a great deal more intelligence and understanding of this than you'd give them credit for. And, very frankly, I think that we need more religion in American society. I think it would do all of us good. I think that the very clear, rational, easily-understandable, common-sense notions of right and wrong really would come more to the fore if we had a little bit more religion. So I don't think that this trivializes it.
Now certainly one could, as we seem to like to do here, come up with all sorts of convoluted hypotheticals that would make anything sound trivial, but I think that the American people aren't trivial, by and large; I think some of the court decisions have trivialized religion, for example, and some of the court decisions have forced State legislators into enacting laws that do tend to trivialize religion; I do agree, if that's your point.
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But I think this amendment will get us away from that and will do just the opposite. For example, in my State of Georgia, because schools are so timid, absolutely scared to death of any sort of religion, and our State legislators, most of which who have very strong religious foundations and believe in having a strong moral and religious underpinning to society—a thought not unknown to our Founding Fathers, by the way—what they came up with a few years ago was some silly notion that I think does trivialize religion of having a moment of silence, so that we get away from any religious connotations. And then you have kids thinking about all sorts of things that do trivialize religion.
I remember, also, a speech by Margaret Thatcher a few years ago, and she was commenting—she had been asked to come over here to America and was commenting from the perspective of a learned person from abroad looking at our society, some of the things that she, as a foreigner, found somewhat odd and unusual about America. And she talked a little bit about free enterprise and regulations and taxing businesses out of existence; and she also spent a great deal of time saying that it strikes she and a number of her colleagues from abroad as odd, looking at America, that here we have a country that was very expressly founded on a notion of God and of religion, and how our society and all of its permeations fits within the order, that great order of the universe, recognizing that there is a God from which our sense of right and wrong does, and should always, come. And she said it just strikes us as rather odd that America seems to have been involved for the last 30 years in a headlong rush to absolutely wipe religion off of the face of any of our institutions—of learning, of government, of public service.
And I think that this resolution—maybe it isn't the final answer to the ills of our society, but I think it doesn't trivialize something at all. I think it really puts more in better perspective something that has been trivialized. So I disagree with you.
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I'd also, Mr. Chairman, if I could, ask for an additional 1 minute.
Mr. CANADY. Without objection, the gentleman will have two additional minutes.
Mr. BARR. Thank you.
I'd also like to recognize the presence of Reverend McDonald, and I say that my good friend, Reverend Timothy McDonald, is here today. If I do have to leave a little bit early, and I may not be able to hear his entire remarks, I just wanted to welcome him here. Even though he and I are from different congressional districts, we know each other; I consider him a very good friend. Even though we disagree on this one particular issue, I do know that his views are born of very careful reflection and prayer and are very well-founded and very sincere beliefs that he has, and it's an honor to have him here today.
And, with that, Mr. Chairman, I yield back the balance of my time.
Mr. CANADY. Thank you. The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you.
And, first, let me make a couple of comments, then get into some questions.
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First, Mr. Parshall said that we're tired of—the school district should make decisions without worrying about what a Federal judge might say. I would submit that, if we pass this amendment, the Federal judge will still be there; they'll simply be interpreting a different document. You're always going to have to worry about what a Federal judge may say. He may say something else, but that's not a relevant question.
Second of all, with Mr. Henderson, I'm continually amazed, frankly, at what Mr. Henderson said, and others also say, that come up with this example student prevented from prayer, from praying in school, until it was litigated, and, finally, when it was litigated, she was able to pray, and so forth and so on. A constitutional amendment wouldn't affect that. If you had some of those ignorant of the current law and the current Constitution, which allows her to have that prayer, and someone is ignorant and prevents her, you've got to go to court to vindicate her right to do so—a different constitutional amendment; you're still going to have that ignorant person there. I mean, if the problem is ignorance or willful disobedience to the existing law, the solution is to educate people in a position of authority as to what the law is, not to change the law, of which that person will still be ignorant.
In other words, if you're allowed already to pray and you have that right, but someone is stopping you, and you have to go to court to stop that someone, how is a constitutional amendment going to change the situation at all? The solution to most of these horrible examples, including the one that I read in your testimony that you alluded to about the private group, led by a minister, in the Capitol, is to enforce the existing law. And if, unfortunately, people are ignorant and you have to go to court to do that, that's unfortunate, but we ought to have some more education about what people's rights are under existing law, and don't change the Constitution for that.
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Thirdly, I have a question, and that question is the following: Let me ask Mr. Lynn and Mr. Parshall—Reverend Lynn first. As I read the amendment, the proposed amendment, ''government shall not deny equal access to a benefit on account of religion,'' among other things. So government pays for the public schools. As I read this, government would have to pay—never mind vouchers; you would have to pay for religious and private—well, would have to pay for religious schools, could not deny that on the basis of religion; could not deny equal access to a benefit, the benefit being tuition, on the basis of religion.
(A) Do you read it that way; and (B), if you do read it that way, what is to prevent the core evil which the Founding Fathers wished to avoid; namely, sectarian battles every year over appropriations? The Methodists are—you know, we have a fight over the ISTEA act this year. New York gets 3.6 percent of the money and thinks it should get 3.7, and Pennsylvania gets 9.6 and Georgia thinks it should only get 9.4. What's to prevent an annual appropriations battle in which the different religious groups fight very emotional battles in which the Methodist school system is being given 3.6 percent and thinks it should get 4.2, and the Catholics are getting 8.7 and think they should get 9.5, and so forth?
Mr. LYNN. I think you read it absolutely correctly, in that this does constitute a guarantee that, if there's a public school system, then you must also fund that religious school system. When it comes to how much you have to fund it, I think you've got a major crisis with a bad resolution either way. Either this is an unfunded mandate that says anyone who puts their hand out must be given an equal amount of money, which I think is probably running counter to certain budgetary trends in this Administration and this Congress, or everyone will have to fight for their piece of the pie. And I can guarantee you that, out of those 2,500-or-so religions in the country, some will have more clout than others; some already are planning to use this kind of amendment to seek more funding for more good works, which you properly point out are good works—no one is denying that—but they are to be funded by private sources, not the public.
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Mr. NADLER. Mr. Parshall.
Mr. PARSHALL. Mr. Nadler, as you might imagine, I disagree substantially with what Mr. Lynn says. There's nothing in this language that would result in Mr. Lynn's scenario, and here's the reason why:
It simply indicates that, where equal access to a benefit is provided, they cannot make the exclusionary decision of excluding one group based on religion as a factor. Now let's take public——
Mr. NADLER. One group—excuse me—one group meaning one religious group or all religious groups?
Mr. PARSHALL. Any group.
Mr. NADLER. Or all religious groups?
Mr. PARSHALL. Let's take an example. Public education, there's nothing in this amendment that would require that the government fund not only public school, but private school, but if it chooses to do so through a voucher program, it cannot arbitrarily exclude religious——
Mr. NADLER. Why do you reject the—excuse me. What tells you that the reading—never mind vouchers—what tells you that the reading that says, ''cannot deny equal access to a benefit on account of religion''—a benefit is that you're paying for schools. Well, my church runs schools; you've got to pay for that, too.
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Mr. PARSHALL. Well, ''equal access to a benefit'' means that right now we have government-funded public schools in most States; we have voucher programs in only a very few. In those in which it provides——
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have two additional minutes.
Mr. NADLER. And please answer my question.
Mr. PARSHALL. Yes.
Mr. NADLER. Never mind the vouchers. Why is my reading wrong?
Mr. PARSHALL. You're misconstruing equal access. In other words, the bottom line is you're misconstruing what equal access means. It's assuming more than one variation. If public school is the only variation that a government is funding, there is no equal access, unless it provides more than one——
Mr. NADLER. Okay, I hear your answer. I hear your answer. Thank you. I wouldn't be so confident a court would read it that way, but let me ask you a separate question.
Again, Reverend Lynn first and then Mr. Parshall—again, ''government shall not deny equal access to a benefit on account of religion.'' Churches are exempt from property taxes; my house isn't. Why am I not being denied an equal benefit on account of my not being a church, on account of my religion? And if that reading is correct, then, in effect, what this amendment is saying—unintended, I presume, but that would be the way the court would read it—that if you give a property tax or any other exemption to churches, you have to give the same to everybody else, because otherwise you're denying a benefit on account of religion. The practical effect would be you wouldn't have property tax exemptions for churches.
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Reverend Lynn.
Mr. LYNN. Yes, that is, I think, a very consistent reading here. You know, this is an amendment that has a peculiar nature. It has bad intended consequences and bad unintended consequences. I think this is one of the unintended consequences.
On a more even easier issue, this would probably——
Mr. NADLER. But you think that is the way it might be read by the courts?
Mr. LYNN. I'm sure it is. That's the plain language, and although I am a reverend, I didn't admit it on this notecard, but I am an attorney also, and I think that it's very clearly true that the courts would read it that way, Mr. Parshall is wrong, by the way, that you have an accretion of every principle from every other amendment to new amendments that are passed by Congress. I know no one, other than Mr. Parshall, who believes that.
Mr. NADLER. Mr. Parshall, the same question.
Mr. PARSHALL. First of all, the question assumes equality between a private individual, a church or a nonprofit organization——
Mr. NADLER. Or my business, my school, my nonprofit Congressional Research Service.
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Mr. PARSHALL. Well, if—first of all, the first question is: Does it—is government providing a benefit? I would—it would be my suggestion that the way the courts have treated tax exemption has not been treated as a benefit——
Mr. CANADY. Without objection, the gentleman will have one additional minute.
Mr. NADLER. Thank you.
Mr. PARSHALL. Interestingly, for instance, in the Walsh case, the Supreme Court looked at tax exemption as whether or not it was unconstitutional establishment or religion or preference, a benefit to religion, and what the courts decided is, look, this is the only way that we can keep from entangling government in church, is by separating their tax affairs from the affairs of state. So I would——
Mr. NADLER. Indeed, but now you have a new amendment which, as the Reverend Lynn said, clearly, to the extent that it contravenes earlier-enacted amendments, prevails.
Mr. PARSHALL. And there's the key: Does it clearly contravene? The simply construction theory and interpretation theory is that you first seek to harmonize, if at all possible. The Court would have no problem harmonizing benefit here with this prior jurisprudence about tax exemptions.
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Mr. NADLER. And since I think I still have 30 seconds left, Reverend Lynn, on an earlier question I asked whether this amendment would permit the use of government funds, let's say, for day care or for free lunches, or whatever, to a church which would, as a condition of letting you have the free lunch, make you listen to a proselytization. Would you comment on that?
Mr. LYNN. I think once you open this to a provider who is religious in character, that provider, then, is no longer arguably the government, and, therefore, can require you to attend that religious lecture, and I think that's perfectly reasonable. That, I believe, is what the courts would say. This theory of harmony is——
Mr. CANADY. The gentleman's time has expired. The gentleman from Virginia, Mr. Goodlatte, is recognized for 5 minutes.
Mr. GOODLATTE. Thank you, Mr. Chairman. I don't have any questions for these witnesses.
Mr. CANADY. Mr. Scott, the gentleman from Virginia, is recognized.
Mr. SCOTT. Thank you, Mr. Chairman.
Under the language, ''the people's right to recognize their religious beliefs,'' Reverend Lynn held up a sign. What in that language would prevent a city council or a State legislature from passing a resolution with such a declaration?
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Mr. PARSHALL. Jim, I'd like to hear you—after I offer a few comments.
The language that was used in this amendment, Mr. Scott, was taken directly from Marsh v. Chambers and Lynch v. Donnelly. We're not turning the clock back 900 years, which is what Mr. Davis would indicate; we're turning it back about 9 years, to pre-Allegheny, where the Supreme Court really dived into some abject confusion.
In other words, where we talk about the people's right to recognize—or in those cases the word was ''acknowledge—religious heritage, tradition, or belief, those Court cases name things like ''in God we trust'' on our coins, National Day of Prayer, recognizing Jewish Heritage Week, religious inscriptions on some of our buildings——
Mr. SCOTT. So is it your understanding that that would prohibit the declaration of Alabama as a Christian State in——
Mr. PARSHALL. We still have the Establishment Clause, and that would prohibit it.
Mr. SCOTT [continuing]. A general assembly resolution?
Mr. PARSHALL. And this amendment would not change that.
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Mr. SCOTT. Suppose you had a classroom of students who declared themselves to be Christians and declared their classroom—student initiative—as a Christian classroom. Any problem?
Mr. PARSHALL. There is a problem in this respect, and that is, while we can't answer all of the various hypotheticals in a vacuum, because every case requires factual underpinning, and that question doesn't have enough facts, but I can speculate. And that is that the school permits a class to publish, disseminate, the indication or representation of itself as a Christian class. There is an imprimatur—there is a point at which the mere presence of a proclamation like that in class, permitted by a school, would take on such a strong, symbolic link with official endorsement of religion that it would violate the establishment clause. I believe that would be one such example.
Mr. SCOTT. Well, let me try to get an understanding about how these prayers would get going, because, you know, these prayers don't just come down on parchment from on high. There must be a process by which you do these things. I mean, the third grade students come to class, some of them armed with prayers. All of them want to pray at the same time. Is the teacher going to be the referee to decide who gets Mondays and who gets Tuesdays? Reverend Lynn.
Mr. LYNN. Mr. Scott, I don't think that there's an answer to that. I think in the comments of Mr. Istook this morning there was a suggestion that, if you are the majority, you probably get the majority, the bulk of the time to pray your prayers, and——
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Mr. SCOTT. Wait a minute. You may get the majority, but is there anything in here that requires the minority to be heard over the objection of the majority?
Mr. LYNN. No, although I think that is one of the single greatest ambiguities about this. I'm not sure that this guarantees the minority anything at all, and I do believe that Mr. Parshall is 100 percent wrong if he suggests that a student, a group, or a majority of students in a classroom can't declare itself a Christian classroom. That is simply, under these words, the acknowledgment of the heritage and tradition on public property, and it's no different than my sign that I don't want to see in front of Alabama. It would be characterized as an acknowledgment of religion. In fact, it's the official promotion of one faith over others, making some feel like a second-class citizen.
Mr. SCOTT. Now, Mr. Henderson, you mentioned the situation in the Capitol. I have just discussed this with the chairman. We're going to try to get the Capitol police to explain what happened in this situation. But does this amendment promote prayer above the normal infringements that are possible in free speech?
Mr. HENDERSON. No, Mr. Scott, and that's the answer to your questions earlier to Reverend Lynn and Mr. Parshall. There's no practical effect at the point where students simply decide that they will have a Christian classroom, any more than there is a practical effect to a group of students who are a clique, like the athletics or the cheerleaders, or whatever. If the school gives some practical effect to that, or if the Capitol police begin to require prayer, that's where the issues arise. This amendment doesn't cause prayer to be advanced above other kind of content of expression.
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Mr. SCOTT. So if there is a time, place, and manner restriction on speech, the fact that your speech is a prayer doesn't elevate that speech under the time, place, and manner restrictions. So if they are content-neutral, prohibiting people from stopping and blocking traffic, the fact that they're blocking traffic in praying doesn't elevate them above the otherwise across-the-board application of a policy?
Mr. HENDERSON. That's correct.
Mr. LYNN. May I say, just for the record, from my position, it does, in fact, elevate that, because there is no comparable constitutional amendment that allows people to recognize cultural beliefs, heritage, or tradition, or economic beliefs. This elevates religion into a very unique place, and I can't——
Mr. CANADY. The gentleman will have two additional minutes.
Mr. SCOTT. Thank you.
Mr. LYNN. Yes, I cannot agree with Mr. Henderson that this doesn't ''elevate'' it. This gives a new claim to every religious group, for example, that wants to proselytize in public schools to come in and to try to convince children that their parents are wrong, and they, the evangelists roaming the halls are right. I think this gives absolute rights. And if Mr. Parshall believes that the time, place, and manner concept in the First Amendment will just be added onto this in this harmony—harmony was fine for the Four Tops; harmony is not what the Supreme Court considers as a matter of constitutional construction.
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Mr. SCOTT. Well, let me get back to this process—we've got this public park that the city council is trying to decorate with religious symbols. Who gets to decide which religious symbols get put up there? I thought Mr. Istook was agreeing that the city manager would be the referee and decide, by a majority vote or by dictate or by majority vote on council, which gets recognized, which don't; which can be paid for by public funds, which aren't. And is that the process that will be used, that a government official will decide which religions get represented?
Mr. PARSHALL. I think you have two different situations. One is the situation that is governed by the last clause of the amendment, and that is that there can be no denial of equal access to a benefit on account of religion.
If you have a public forum, if you have a place in the park where you allow other groups to place their signs, cultural symbols, and so forth, you cannot deny religious groups their equal access to that forum. That's one situation.
Mr. SCOTT. And is there no minimum threshold by which you would have a right to be represented? So if you have one person with a religion in the city of New York, they get the same amount of space as everybody else?
Mr. PARSHALL. Yes, public forum doesn't determine—isn't determined by the percentage of your supporters; it's determined by the fairness of the procedure you use.
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But the other situation is where, as an example, a case I handled in Wisconsin——
Mr. SCOTT. But there would be no discretion on the part of the city manager——
Mr. PARSHALL. Oh, yes, they could determine criteria—as an example: first come, first serve. They can indicate that you have to come in and fill out certain papers, and the order in which you come in to fill out those papers; that's usually the way it's done. And if you reserve it 6 months in advance, you have that month reserved for your poster that month.
The other situation is where the government itself may place a menorah or a nativity scene for a temporary period of time during a religious holiday, and that used to be able to be done before 1989, and then the Supreme Court changed that. This would simply go back to the 1980's, where as long as it is part of a religious heritage or tradition, and erected not as an endorsement of official religion, it's permitted.
Mr. SCARBERRY. May I add that the amendment does prohibit discrimination against religion? I would assume that would include discrimination among religions as well, although perhaps that could be clarified. And so an official policy of promoting one religion and excluding others, it seems to me, could well violate that portion of the RFA.
Mr. CANADY. The gentleman's time has expired.
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Mr. SCOTT. Could Mr. Davis——
Mr. CANADY. Without objection, the gentleman will have one additional minute.
Mr. DAVIS. Just one very quick comment: The arrangement, the framework, described by Mr. Parshall pretty much states the current law as it is under Ohio v. Pinette. The Pinette case basically says that, where you have an open forum, a city council can basically make a public park available to all different kinds of religious groups. It does have the alternative of declaring its public park to be a closed forum, under which no religious groups would be permitted. But, essentially, the current state of the law is equal access for all religious groups, which begs the question as to why we need an amendment to change things.
Mr. SCARBERRY. I think there is also a question whether a city could close a park to expressive activity. Parks and streets are traditional public forums held in public trust for the people and for expressive activities. And where all the parks were—I think there's a serious question under the Supreme Court's decisions whether they could be withdrawn from expressive—from being places of expression.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. The gentleman's time has expired. I'll now recognize myself for 5 minutes.
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Ms. WATERS. Mr. Chairman, prior to your recognition, I'd like unanimous consent to insert into the record this statement.
Mr. CANADY. Without objection, the statement will be inserted into the record.
[The information referred to follows:]
PREPARED STATEMENT OF MAXINE WATERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Good morning. I want to thank all of our witnesses for being here and sharing your thoughts on religious freedom.
Thomas Jefferson described freedom of religion as ''the most inalienable and sacred of all human rights . . .'' We have the freedom to choose how to express our religious beliefs,—to choose when and where to pray and even who to pray to. It is one of the basic liberties that makes this country what it is.
The authors of this proposed amendment, H.J. Res. 78 would have us believe that our religious freedoms are in jeopardy and that a constitutional amendment is needed in order to secure religious freedoms for generations to come.
More than 200 proposals in the form of constitutional amendments or legislation have been introduced in past years in Congress to restore religious exercises in the public schools. The last school prayer amendment to reach a vote in the House came in 1971. However, the 105th Congress has demonstrated its intent and commitment to amending one of our most basic and cherished liberties—our freedom of religion.
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H.J. Res. 78 is problematic because there is enough ambiguity in the drafting language that I am not certain as to what the legislation would actually accomplish. For example, the last phrase of the proposed amendment prohibiting the government from ''denying equal access to a benefit on account of religion'' would possible allow the government to fund programs, even programs with a non-secular emphasis, sponsored by religious organizations. Also troubling is the language providing that the government may not ''initiate or designate school prayers'' implying that the government may indeed initiate or designate bible readings or other religious activity.
The Constitution sets forth a carefully balanced set of rules aimed at protecting both an individual's right to religious expression and church/state separation. And it sets forth test in determining under what circumstances government may and may not provide financial assistance to religious institutions.
I simply don't buy the argument that constitutional law regarding religious freedom has become so murky that school officials cannot discern what is legally permissible and what is not. at the same time, I don't discount the experiences that may parents have shared involving religious activity in certain school districts.
As we become more and more of a pluralistic society, the question of securing religious freedom for everyone is a serious issue that we will have to deal with, however, I am not convinced that the answer lies in a constitutional amendment. I am concerned that the proposed language in H.J. Res 78 would only serve to further confuse the issues rather than clarify them.
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I look forward to your testimony and I'm sure that I will have some questions for you at the appropriate time. Thank You.
Mr. CANADY. I also ask unanimous consent to insert in the record a letter to Mr. Hyde and myself from Professor McConnell of the University of Utah School of Law concerning the proposed amendment.
Mr. SCOTT. Mr. Chairman, reserving the right to object on that, I just want to point out that on page 5 of that letter he describes one case that I think was misrepresented earlier—and withdraw my reservation.
Mr. CANADY. Okay, thank you.
[The information referred to follows:]
INSERT OFFSET RING FOLIOS 16 TO 22 HERE
Mr. CANADY. So we'll now go to some questions concerning the proposal that Mr. Bishop made—were all of you present to hear Mr. Bishop's proposal? Well, I'd particularly like to ask Mr. Parshall—at least first I'd like to ask Mr. Parshall and Mr. Henderson to give their response to Mr. Bishop's proposal to change the amendment. Both—if you'd try to address both of the suggestions that he made?
Mr. PARSHALL. As I recall, his two suggestions were to change the reference to God in the preamble, and the second was to take the section out with regard to equal access to benefits.
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Mr. CANADY. Well, specifically, what I understand he wanted was to change the first—the beginning of the first sentence to read, ''to secure the people's right to freedom of religion according to the dictates of conscience,'' which eliminates the reference to acknowledge God.
And then in the end, he would change the last sentence to read, ''The government shall not require any person to join in prayer or other religious activity, initiate'' a school prayer—''nor otherwise compel or discriminate against religion,'' basically, eliminating the ''equal access to a benefit'' language.
Mr. PARSHALL. First of all, with regard to the acknowledgment of God, I think that he proposes an equivalent from the standpoint of the legal impact. I think freedom of religion would be equivalent to acknowledgment of God in terms of legal impact. There may be a preference in terms of some political considerations or cultural or maybe even literate considerations in terms of letting the people know what this amendment is all about. But I think the legal import would be basically the same.
As to the denial of equal access to benefits being removed, that would have a genuine impact, although in light of the Supreme Court's decision in Agastini just within a few weeks ago, where, again, it dealt with the idea of benefits flowing indirectly to religious organizations, the Supreme Court has had a line of cases that seemed to be fairly favorable, and I think sensible, on the issue of benefits.
On the other hand, I should say this: I've read Agastini very carefully. The Court was very narrow and very careful in its wording in that case, and what they really did is just remove one little presumption. The presumption used to be that a public official could not go into a private religious school without raising the inference of religious entanglement or establishment clause violation. They simply removed that presumption. Now there are a whole host of other factors that could lead to their decision about an establishment clause violation in those kind of interactions. So I think Agastini is a very narrow case. I think if you took this language out, it would impair the ability of faith-based organizations to be able to have full entitlement.
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Mr. HENDERSON. I share Mr. Parshall's view on the second clause. I think on the first clause I have trouble with the proposal to change it, because, in fact, as construed by The Supreme Court ''freedom of religion'' is essentially a guarantee of a vapor. The Supreme Court has, for over 100 years, not guaranteed freedom of religious conduct, but the freedom to do what we are already free to do in our minds and our hearts, which is to accept for ourselves certain religious tenets. But when it comes to putting those tenets in action, such as by acknowledging God or engaging in other religious conduct, the Supreme Court has subjected our religious freedom, if this is what religious freedom is, to simply some form of a balancing test under which the government can usually prevail against an individual's right. ''Freedom of religion'' is broader than acknowledgment of God; it includes many other things, but it guarantees, at least in the view of this practitioner, it guarantees much less because it only guarantees in the current jurisprudence essentially, certainly, it only guarantees the right to believe and not the right to do.
Mr. CANADY. Okay, thank you, Mr. Henderson.
Mr. Scarberry, would you like to comment on the Bishop proposal?
Mr. SCARBERRY. I thought Congressman Bishop's comments were very wise in seeking some sort of middle ground or common ground on this. I would not object to changing the reference to God to a reference to freedom of religion. I don't feel a need to have my Nation reinforce my beliefs. I do feel a need to have my Nation leave me alone and let me practice my religion as I choose to.
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With regard, though, to the change of eliminating the language with regard to denial of benefits, it might not matter in that the language would still include a prohibition on discrimination against religion. That might be interpreted to include a prohibition on discrimination against organizations on the basis of their religious character in the seeking of public benefits. Given the legislative history of the removal, however, of specific language, that might be interpreted not to do that. And the Supreme Court has moved, to some extent, that way.
I would like, though, to disagree very strongly with some of the comments previously made, that the present language of the RFA would require religious school funding if public schools are funded. I don't think it would. There's some chance it might, but I think it's highly unlikely. Professor Laycock from Texas, one of the foremost experts in this area, agrees that it's unlikely that it would require that. It would, however, require even-handedness in a voucher system between religious and nonreligious schools.
Mr. CANADY. Without objection, I'll give myself two additional minutes.
Let me repeat a question that I asked Mr. Istook. We've been touching on this throughout, but I want to give some of the panelists an opportunity to specifically respond to this. Is it your view that the Istook amendment would allow a city to erect and maintain a nativity scene or menorah at taxpayer expense in a city park during the month of December without including secular symbols or objects in the display? Maybe, Mr. Henderson, you could first address that, and then Mr. Parshall.
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Mr. HENDERSON. I agree with the views expressed by the Congressman that it would restore to the law the status after Lynch v. Donnelly, so that a town, as part of a display recognizing religious heritage, may erect such a display at taxpayer expense.
Mr. CANADY. Okay. Mr. Parshall.
Mr. PARSHALL. I would agree. I suppose there is a line that might be drawn. If a village with a budget of $10,000 were to spend $9,000 on that Christmas nativity scene, that might raise an Establishment Clause problem, but, by and large, the displays we see that you described would be constitutional. We'd go back to Lynch v. Donnelly but prior to Allegheny.
Mr. CANADY. Okay. I'm trying—what else could the government spend money on that's connected with religious expression? From what I understand you're saying, there's a line somewhere there that is going to drawn where we get over into an Establishment Clause problem. And what I'm trying to understand is, What is the principal basis under the amendment for drawing that line? And, Mr. Parshall, if you could——
Mr. PARSHALL. Well, I think, as we've stated before, this does not wipe clean every case that the Supreme Court has decided. The Supreme Court has decided that there is a difference, as an example, between incidental benefits and direct subsidies to religion. This amendment will not allow money to go into the pocket of a pastor, so he can get up in a pulpit and preach a sermon. That's a direct subsidy. There is an incidental benefit to religion, I suppose, when a menorah, as an example, for the Jewish faith is used at Hanukkah, but it's only an incidental one.
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Now I mentioned the $9,000 benefit because, again, there is a symbolic line, and where that is the courts have to determine; we can't draw that for you in advance. But there is a symbolistic line at which the government at a certain point so endorses a specific symbol in a certain context that it could be argued it's an Establishment Clause violation, even under this amendment, clearly. Where that line is, we can't draw those in advance. I suggested the hypothetical of using an entire year's budget on one religious display; I'm not even certain that's an appropriate line, but where that line is we really can't predict in advance.
Mr. CANADY. Well, thank you.
My time has expired. The gentleman from Virginia.
Mr. SCOTT. I'd like to ask, if I could, very briefly, to clarify the question of whether or not the city manager would have——
Mr. CANADY. Without objection, the gentleman will——
Mr. SCOTT. Thirty seconds?
Mr. CANADY [continuing]. Have 1 minute.
Mr. SCOTT. Thank you.
Whether or not the city manager as discretion to pick and choose between religions—I mean, the question was, you sign up; if the satanist got to the signup sheet before the Christians for the December display, what would happen?
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Mr. SCARBERRY. Under present law, the satanist would be entitled to have the display, and that wouldn't change.
Mr. SCOTT. Under present law?
Mr. SCARBERRY. Present law. Present law. I mean, the people who erected the cross in the Pinette case were the Ku Klux Klan. Although the case doctrinally stands for the right to speak religiously, the group that erected the cross was not a group that any of us would wish to be associated with.
Mr. LYNN. The difference, I think, Congressman Scott, is that, with this amendment in place, the satanists would get their place, but then another place, perhaps an even more prominent place, could be selected by that city manager to reflect the majority will of his constituents or supporters. So it gives a second bite at the apple, and that one can be on the basis of some other factor other than first-come, first-served, and I have never heard of a rule of construction about nine-tenths of a budget is not establishment, but the whole budget is. We're going into unchartered waters here with understandings of how the courts will look at the Constitution that are just not justified by the history of the Supreme Court.
Mr. PARSHALL. If I just may respond, that case, by the way, Mr. Lynn, was a case you commented on, Village of Wanneke, that I argued in front of the Wisconsin Supreme Court. They may that delineation. I think you commented on that case, The Washington Times.
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Mr. SCARBERRY. In addition, regardless of what Representative Istook may say, it is not at all clear that the RFA would be interpreted to give the government the right to recognize our religious heritage because it says, ''the people,'' and if the Court interprets that to be an individual right, regardless of what legislative history may be laid here, then the government would not have that right, but individuals would have enhanced rights, and that's an ambiguity that seems to me needs to be faced squarely: Do we wish to give the government additional power or do we wish to simply give individuals and private groups additional rights?
Mr. CANADY. Well, on that note, we are going to thank all of you for your contribution to our hearing. You've been very helpful. We appreciate your comments.
And we'll now move to our final panel. I want to thank all the members of the third panel for being here. We appreciate your patience in being with us throughout the hearing.
Our first witness on the third panel will be William Murray. Mr. Murray is chairman of the Religious Freedom Coalition USA. Mr. Murray has also authored several books on the subject of religious freedom.
Following Mr. Murray will be the Reverend Timothy McDonald, pastor of the First Iconium Baptist Church in Atlanta, Georgia. In addition to his pastoral duties, Reverend McDonald serves on the board of Concerned Black Clergy and People for the American Way, among other organizations.
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Our final witness will be Rabbi Aryeh Spero. Rabbi Spero is affiliated with congregations in Canton, Ohio and New York City. He is published widely in journals and newspapers about social, political, and religious issues.
And I want to thank all of you for being with us to testify today. We would ask that you do your very best to summarize your testimony in 5 minutes or less. We have not been strictly enforcing that, but please do be guided by the red light. Without objection, of course, your full statements will be made a part of the permanent record of this hearing.
Mr. Murray.
STATEMENT OF WILLIAM J. MURRAY, CHAIRMAN, RELIGIOUS FREEDOM COALITION USA, AND GOVERNMENT IS NOT GOD
Mr. MURRAY. Thank you, Honorable Chairman and distinguished members. I appreciate the invitation. My name is William Murray. I am the president of a Christian evangelistic association, the chairman of the Religious Freedom Coalition, the chairman of Government Is Not God, a political action committee for social conservatives. None of the organizations I represent have ever received Federal funding, and the PAC of which I am chairman has never contributed funds to any campaigns of any of the members of this committee.
Allow me to give just a little bit of background. I personally came from a bizarre, dysfunctional family. I was one of two illegitimate children in a fatherless home. Both my half-brother and myself were raised in a background antagonistic toward God, simply because our mother did not want the constraints of the Ten Commandments.
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There was no real ideological arguments for her opposition to school prayer; she simply did not want her two sons taught that out-of-wedlock sex was improper. At one point, before filing the lawsuit to remove prayer from the public schools, she even attempted to defect to the Soviet Union to find a home where the commandments of God were not taught. As a one-woman minority, her will was, indeed, imposed upon our schools.
Most of the philosophies she propounded while writing for Hustler magazine is now a part of mainstream education in America. I was taught as a child a totally materialistic, hedonistic philosophy in which the individual should have complete freedom and no responsibility to society. Living according to this belief system will eventually destroy an individual or a society. At what some would call the late age of 33, I committed my life to Christ, and since that time I have worked to undo the damage I believe that my family perpetrated upon America and the world. To that end, I even founded a Bible publishing company in 1991 in what was then the Soviet Union.
Some 2 years ago, I had the honor to testify before the committee at hearings held on a similar subject in Oklahoma City. I will never forget the testimony that day of one young lady, a high school student. This young woman had been a member of a school choir and had objected to some of the songs as being intolerant of her family's beliefs. Her demand was simple. She wanted all songs sung by the choir to be approved by her father. Her father would be the final judge of the music to be formed by the entire choir. She proclaimed that this would be the only just solution in her case. The feelings and the beliefs of the other students were of no concern to her or to the families. In America she was convinced only minority opinion counts.
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If this girl's father should have veto power over the choir, then should not each member of this committee have full and complete veto power over every actual vote in which the majority is against him? That is the logical conclusion to the statements set forth by some who have testified here today.
I find most of what the Congress does distasteful and wasteful. As an Irish Protestant American, I am a minority. As a Southern Baptist, I am a minority. Since I have at least dual minorityship, should I not have final veto power over everything the Congress does? Well, I think the example is, of course, foolish, although I would point out that if it were followed out, no law or tax would ever be levied by this Congress, which is an idea in itself.
The rule of law, the rule of democracy, requires the majority must make basic decisions for the role of the society in the government. We would not give one Congressman or one Senator veto power. Not even the President of the United States has unlimited veto power. Yet, the Supreme Court of the United States has appropriated veto power time and again, telling both the citizens of this Nation and its elected representatives that the Court, and the Court alone, has veto power over majority belief.
Having moved from the irrational ravings of the communism I was taught as a child to the more rational belief in the democratic system, I now find myself accused of majoritarianism. In truth, neither I nor any other supporter of the Religious Freedom Amendment desires to force a majority religion on anyone. I do believe, however, that the majority does have a right to express their beliefs.
As a teenager in Baltimore, I was given the right to pray or not to participate in school prayer. Free expression by the other students had to be totally silenced, as far as my family was concerned, and the Supreme Court agreed.
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I have in my written testimony outlined the five items that I believe that the Religious Freedom Amendment should accomplishment in protecting the religious heritage of the Nation and acknowledging God and public property, and allowing the freedom of exercise of religious beliefs in the schools and the courthouses, and allowing students to pray in school as long as the prayer is initiated and led by students, and to prohibit the government from discriminating against any organization in the dissemination of aid.
I also believe—and I know this committee has already had hearings on RFRA, the Religious Freedom Restoration Act. It is my belief, and the belief of those that I represent, that the Religious Freedom Restoration Act should be codified in a second section of the Religious Freedom Amendment. Even though this would be redundant in nature, we believe that perhaps the Supreme Court could use some redundancy when it comes to this issue.
I had the pleasure on the 26th of last month to be present with the chairman and Mr. Nadler, and I do appreciate Congressman Nadler's comments at that time, when he said, regarding the RFRA case, ''In the Smith case in 1990, the Court said that it was not the job of the courts to protect religious freedom. Today, the Court tells us that the Congress lacks the power to protect religious freedom. According to the Supreme Court, the Constitution protects religious freedom, but no one has the authority to enforce protection.'' And I do agree with the Congressman in that regard.
Thank you.
[The prepared statement of Mr. Murray follows:]
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PREPARED STATEMENT OF WILLIAM J. MURRAY, CHAIRMAN, RELIGIOUS FREEDOM COALITION USA, AND GOVERNMENT IS NOT GOD
Honorable Chairman, Distinguished members of the committee:
My name is William J. Murray. I am the president of a Christian evangelistic association, the chairman of the Religious Freedom Coalition and the chairman of Government Is Not God, a political action committee for social conservatives. None of the organizations I represent have ever received federal funding and the PAC of which I am chairman has never contributed funds to the campaigns of any member of this committee.
Allow me to give you a brief background:
I personally came from a bizarre, dysfunctional family. I was one of two illegitimate children in a fatherless home. Both my half brother and myself were raised in a background antagonistic toward God simply because our mother did not want the constraints of the Ten Commandments. There were no real ideological arguments for her opposition to school prayer. She simply did not want her two sons taught that out-of-wedlock sex was improper. At one point, before filing the lawsuit to remove prayer from the public schools, she even attempted to defect to the Soviet Union to find a home where the Commandments of God were not taught. As a one woman minority her will was indeed imposed upon our schools. Most of the philosophy she propounded while writing for Hustler Magazine is now a part of main stream education in America.
I was taught as a child a totally materialistic, hedonistic philosophy in which the individual should have complete freedom and almost no responsibility to society. Living according to this belief system will eventually destroy an individual—or a society. At what some would call the late age of 33 I committed my life to Christ. Since that time I have worked to undo the damage I believe my family perpetrated upon America and the world. To that end I even founded a Bible publishing company in 1991, in what was then the Soviet Union.
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Some two years ago I had the honor to testify before the committee at hearings held on a similar subject in Oklahoma City. I will never forget the testimony that day of one young lady, a high school student. This young woman had been a member of a school choir and had objected to some of the songs as being intolerant of her family's beliefs. Her demand was simple; she wanted all songs sung by the choir to be approved by her father. Her father would be the final judge of the music to be performed by the entire choir. She proclaimed that this could be the only ''just'' solution in her case. The feelings and the beliefs of the other students were of no concern to her or to her family. In America, she was convinced, only minority opinions count.
If this girl's father should have veto power over the choir, then should not each member of this committee have full and complete veto power over any actual vote in which the majority is against him? That is the logical conclusion to the statements set forth by some who have testified.
I find much of what the Congress does distasteful and wasteful. As an Irish-American-Protestant I am a minorty. As a Southern Baptist I am a minority. Since I am at least a dual minority should I not have final veto power over anything the Congress does that I dislike?
Both the examples I have given are indeed foolish. No one congressman can have veto power over the majority. Were that the case, no law would ever be passed and no tax could ever be levied (HMMM!)
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The rule of law, the rule of democracy, requires that the majority must make the basic decisions for the role of the society and of government.
We would not give one congressman or one senator veto power. Not even the President of the United Sates has unlimited veto power. Yet, the Supreme Court of the United States has appropriated veto power time and again, telling both the citizens of this nation and its elected representatives that the Court and the Court alone has veto power over majority belief.
Having moved from the irrational ravings of the communism I was taught as a child to a more rational belief in a democratic system, I now find myself accused of 'majoritarianism'. In truth neither I nor any other supporter of the Religious Freedom Amendment desires to force a majority religion on anyone. I do believe, however, that the majority does have a right to express their beliefs.
The framers of the Constitution did not give the young lady I mentioned above the right to suppress the desires of the majority. They did, however, give her the right not to participate. This concept has been lost on our court system. As a teenager in Baltimore, I was given the right by school officials not to participate in classroom prayer. This was not enough for my mother, though. Free expression by the other students had to be totally silenced. The Supreme Court agreed. But this was never the intention of those who wrote the Constitution, nor was it the will of the majority of Americans.
I am not asking this Congress to force anyone to utter a state authored prayer. I am asking that the Congress pass the Religious Freedom Amendment so that the various States can cast their lot for it and end the usurpation of the religious freedoms of the people by the Supreme Court.
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The time has come for the passage of the Religious Freedom Amendment because of a recent disastrous ruling by the Supreme Court.
The final blow to religious liberty in this nation came on June 26th of this year when the Supreme Court again cast its lot against religious liberty by holding the Religious Freedom Restoration Act (RFRA) unconstitutional. This decision will ultimately lead to the taxation of churches and the stripping away of all religious liberty in America. The church now has equal legal standing with the tobacco companies, as far as government is concerned. I stood with Senator Ted Kennedy and Chairman Canady at a news conference that same day. I recall Senator Kennedy's remark: ''The decision is disappointing. The law struck down a good faith bipartisan effort by Congress to enable persons to practice their religion without the unnecessary interference by the federal government or by state and local governments.''
With the Court's ruling against RFRA, the Religious Freedom Amendment to the Constitution is now the only solution to the continued attack on religious belief and freedom in this nation.
In light of the Supreme Court's RFRA ruling, I believe that the language of RFRA must now be codified into the Religious Freedom Amendment itself. I do not believe the current language of the RFA should be changed, but rather, RFRA should be added as a second section even if there is redundancy. This is one case in which redundancy would help not hinder, as it appears the Supreme Court has extreme difficulty in understanding the people or the Congress.
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Whatever the final language, the membership of the Religious Freedom Coalition believes that the following items must be covered:
1. Protect the religious heritage of the nation. City seals, state flags and statues of a religious nature on city, county or state property could not be removed by the courts.
2. Allow acknowledgment of God on public property. No mayor, Congressman or other public official could be banned from public participation in a religious event. God could and would be acknowledged at such events as school baccalaureates. (Note: This does not permit promoting religion, only acknowledging religion.)
3. Allow the public expression of all religious beliefs in the school house, the courthouse and the work place. No employer, not even the Federal government, could order an employee not to express his religious beliefs.
4. Allow students to pray at school as long as the prayer is initiated and led by students.
5. Prohibit the government from discriminating against any organization in the dissemination of aid because of the religious nature of the group. This would include the issuance of vouchers to students to use at ANY school of the parents' choice (if a state chooses to create a voucher system.) No Christian school would be forced to accept a voucher.
An example of the need for the benefits language may be seen in the recent situation in Oklahoma City. There, many downtown buildings were damaged by the bombing of the Murrah building. Government assistance was made available to the owners of all privately owned buildings that were damaged—except churches. Congress had to pass a special law to allow for repairs! Another example is that in times of disaster, religious organizations may not distribute federal aid even if it means the aid cannot be distributed and people may die. I need not go into the horrible state of our schools, particularly our inner city schools, to further justify item number five. The first four, I believe, speak for themselves, as does the language of the Amendment itself.
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The religious heritage of our nation is being hidden from the youth of today. Text books now teach that the Pilgrims came to America for economic reasons. Schools cannot have a ''Thanksgiving'' dinner and if they do, no prayer of thanks may be offered. The concepts that led this nation to exist in the first place are being replaced by a political correctness that makes us accept all forms of depravity as normal while turning our backs upon thousands of years of history and the beliefs of those who established this great nation.
I urge you to pass the Religious Freedom Amendment as promptly as possible to the full House for debate and a vote. Let the will of the people—the vast majority of the people—be heard.
Thank you for allowing me to testify before this distinguished body.
Mr. CANADY. Thank you, Mr. Murray.
Reverend McDonald.
STATEMENT OF TIMOTHY McDONALD, PASTOR, FIRST ICONIUM BAPTIST CHURCH, ATLANTA, GA
Mr. MCDONALD. Thank you so much, Mr. Chairman, and to other members of the committee, for allowing me to come and have this opportunity to address the body. My name is Timothy McDonald. I'm the senior pastor of the First Iconium Baptist Church in Atlanta, Georgia. I presently serve also as president of the Concerned Black Clergy of Metro Atlanta, which constitutes approximately 125 congregations, black and white, who work on behalf of the poor. I'm also a member of the board of directors of People for the American Way Action Fund, a nonpartisan, citizen group which joins me today in opposing the constitutional amendment proposed by Representative Istook. I have previously worked as the assistant pastor for almost 6 years of the Ebenezer Baptist Church, where Dr. Martin Luther King, Jr., served as assistant pastor when he was assassinated in 1968.
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It is because of my fundamental, long-time belief and commitment to religious liberty that I strongly urge this body to oppose the Istook amendment. I'm a minister, and not a lawyer, but I know from my own personal experience the value of the First Amendment as it is today in protecting religious freedom as I understand it. And I know from that same experience the danger of religious freedom of proposals like the Istook amendment.
For example, look at the issue of prayer in public schools. My parishioners and I know that truly voluntary prayer is already permitted in our public schools and occurs on a daily basis. Individual students can say grace before meals; they can pray outloud at recess or silently before a math test. As long as you have algebra, you will have prayer. They can get together on their own in prayer before school or after school, in Bible clubs, et cetera.
What is important here is captive audience prayer—prayer by students or school officials during classes or over loudspeakers or other school-sponsored settings where students are captive audience for someone else's prayer. We know how religious liberty is harmed by that kind of captive audience prayer.
For example, what happened to the Herdahl family in Mississippi just a few years ago. The Herdahls, who happened to be Christian, and their children objected to captive audience prayer over the school intercom and during the classes, and when they objected, they were called atheists and devil-worshippers, and even worse. It took a Federal court to defend their right to religious freedom under the First Amendment.
But under the Istook amendment, captive audience prayer would be allowed in every public school in the country, and not just Baptist prayer or Christian prayer, but cults, satanists, white supremists, Christian identity movement groups—all these religions and more would have the right to impose their captive audience prayers on school children, as long as the government itself does not formally require, but permit any to join in prayer, and does not initiative or designate the prayer. This would violate the rights of parents to raise their children according to their own religious beliefs. And think about the conflicts over questions like: Which group gets how many minutes or how many days for their particular prayer over the school intercom system?
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The Istook amendment would also cause conflict over government funding of religion, because it requires the government must provide equal access to benefits for religious groups. The amendment would legalize, and might even require, but it certainly would permit, taypayer funding of religious school vouchers and subsidies to churches for proselytizing and other activities.
Even groups like the Neo-Nazi Christian Identity Movement would be put on the same footing as our local public schools in obtaining taxpayer money. This could literally devastate public schools and other institutions across America.
Despite the false promise of voucher schemes, I know that it will only hurt poor and minority children, innercity children, in particular, all throughout the country. And just as important, by using public tax money to advance religion for private benefit, the government would violate the conscience of taxpayers who expect the government to remain neutral toward religion. Moreover, since we all know that government funds are limited, the Istook amendment would trigger divisive and destructive competition among more than 2,000 religious groups.
The Istook amendment also guarantees the right to recognize religious beliefs, heritage, traditions on public property. Does this mean the Ten Commandments or a cross would be permitted in a courtroom? If so, then could not also a judge force a swastika or a satanic symbol as well? Doesn't that also mean that a town could erect a statue recognizing a pagan sun god or a witch goddess, just as another in that same city could put a cross of Jesus Christ in a mosque? Once again, a government power can be put behind it; religion would become a source of greater conflict in our society, not a healing element. Indeed, in my view, the Istook amendment violates the very nature and the very essence of our religious faith. Religion depends not on government's power, but on the power of belief, of voluntary commitment and true faith.
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I would also like to add—the statement is there—there was a false statement made by Congressman Istook this morning regarding the National Baptist Convention and its endorsement of the Istook amendment. That is absolutely false. It is true that the president of the National Baptists, Mr. Henry Lyons, initially gave his support to the amendment, and even now has questions, but it is not true that the largest black body, the National Baptists, has endorsed this amendment.
Even with the protection of the First Amendment and the Constitution, I have seen with my own eyes the results of intolerance toward religion and other minorities. In Atlanta, Georgia, there was the group of us who met 35 pastors who initially supported school prayer. After we discussed the Istook amendment, after we discussed all the issues which have been raised here today, unanimously, the group voted to not support—as conservative as we are, as black Baptists—to not support this amendment.
I want to thank the committee for all that you've done here today, and for allowing me this opportunity to share my views.
[The prepared statement of Mr. McDonald follows:]
PREPARED STATEMENT OF TIMOTHY MCDONALD, PASTOR, FIRST ICONIUM BAPTIST CHURCH, ATLANTA, GA
Good morning, Mr. Chairman and members of the committee, and thank you for inviting me to testify today. My name is Timothy McDonald and I am senior pastor of First Iconium Baptist Church in Atlanta, Georgia, where I have served since 1989. 1 am also president of Concerned Black Clergy, an ecumenical consortium of black and white clergy working on behalf of the poor in Atlanta, and a member of the Board of Directors of People For the American Way Action Fund, a national nonpartisan citizens group which joins me in opposing the constitutional amendment proposed by Representative Istook..I have previously worked as assistant pastor at Ebenezer Baptist Church in Atlanta, where Dr. Martin Luther King Jr. served until his assassination in 1968. It is because of my fundamental lifelong commitment to religious liberty that I strongly urge this committee to oppose the Istook amendment.
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I am a minister, not a lawyer. But I know from my own experience the value of the First Amendment as it is today in protecting religious freedom. And I know from that same experience the danger to religious freedom of proposals like the Istook Amendment.
For example, look at the issue of prayer in public schools. My parishioners and I know that truly voluntary prayer is already permitted and occurs every day in our public schools. Individual students can say grace before meals. They can pray out loud at recess or silently before math tests. They can get together on their own in prayer or Bible clubs in middle or high schools when other extracurricular clubs can also meet. What isn't permitted is ''captive audience'' prayer—prayer by students or school officials during classes or over the loudspeaker or other school-sponsored settings where students are captive audiences for someone else's prayer.
We know how religious liberty is harmed by that kind of ''captive audience'' prayer. For example, look at what happened to the Herdahl family in Pontotoc County, Mississippi just a few years ago. The Herdahls and their six children pray together as Christians, but objected to captive audience prayer over the school intercom and during classes. And when they objected, they were called atheists and devil-worshipers and even worse. It took a federal court to defend their right to religious freedom under the First Amendment.
But under the Istook amendment, ''captive audience'' prayer would be allowed in every public school in the country. And not just Baptist prayer or Christian prayer. Cults, Satanists, the white supremacist Christian Identity movement—all these religions and more would have the right to impose ''captive audience'' prayer on schoolchildren, as long as the government itself does not formally ''require'' anyone to join in prayer and does not ''initiate'' or ''designate'' the prayer. This would violate the rights of parents to raise their children according to their own religious beliefs. And think about the conflicts over questions like which group gets how many minutes on how many days for their prayer over the school intercom, in classes, or in school assemblies! Instead of religion helping bring us together, religious conflict would drive us apart.
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The Istook amendment would also cause conflict over government funding of religion. Because it requires that government must provide ''equal access'' to benefits for religious groups, the amendment would legalize, and might even require, taxpayer funding of religious school vouchers and subsidies to churches for proselytizing and other activities. Even groups like the neo-Nazi Christian Identity movement would be put on the same footing as our local public schools in obtaining taxpayer money. This could literally devastate public schools and other institutions across the country. Despite the false promise of voucher schemes, I know that they will only hurt poor and minority children in our cities and elsewhere. And just as important, by using public tax money to advance religion for private benefit, the government would violate the conscience of taxpayers who expect the government to remain neutral towards religion.
Moreover, since we all know that government funds are limited, the Istook amendment would trigger divisive and destructive competition among the more than 2,000 religions in this country, each of which would claim that they are entitled to be funded just as any secular activity. Right now, groups like Catholic Charities quite properly can get funds for social service activities as long as they don't use government money to proselytize or discriminate on the basis of religion. But under the Istook amendment, taxpayer dollars would go for all these purposes, violating the religious liberty of Americans who would be forced to pay taxes to promote someone else's religion.
The Istook amendment also guarantees the right to ''recognize'' religious beliefs, heritage, and traditions on public property. Does this mean the Ten Commandments—or a cross—could be posted in a courtroom? If so, then couldn't another judge post a swastika or a satanic symbol as well? Doesn't that also mean that a town could erect a statue ''recognizing'' a pagan sun god or a witch goddess, just as another town could put up a statue of Jesus Christ or build a mosque? Once again, if government power can be put behind it, religion would become a source of greater conflict in our society.
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Indeed, in my view, the Istook amendment violates the very nature and the very essence of religious faith. Religion depends not on government's power, but on the power of belief, of voluntary commitment and true faith. That kind of commitment and faith cannot be truly obtained, and can only be corrupted, by seeking to harness the secular power of the state. And by making religion a competitor for the power of government, we can only create more religious conflict and more religious intolerance, particularly towards religious minorities. And make no mistake, in one place or another in our great country, all of us are religious minorities somewhere, and all of us would be at risk under the Istook amendment.
It is contended by some that this or some other religion amendment should be adopted because the American people allegedly support it. Whatever the public opinion polls may purport to say, I know from talking to real people, even people who at first support an idea like Representative Istook's, that when the facts are explained to them, they oppose this kind of major surgery to the First Amendment and religious freedom. This is actually reflected in the polls themselves. For example, Peter Hart Research Associates conducted a poll commissioned by People For the American Way which found that although 68% of the public generally supports student prayer in schools, only 3 1% favored prayer conducted in a way that would offend students of other faiths, like the ''captive audience'' prayer legalized by the Istook amendment. In fact, in a national poll which supposedly showed support for a school prayer amendment, Americans preferred a neutral moment of silence to spoken classroom prayer by 70% to 24%.
Even with the protections of the First Amendment and the Constitution, I have seen with my own eyes the results of intolerance towards religious and other minorities. I have seen churches burned in Georgia. I have seen bias towards men and women because of their faith or the color of their skin. We must do all we can to stop intolerance, not create more of it. For the sake of religious tolerance, for the sake of religious freedom, I urge you to oppose the Istook amendment. Thank you very much.
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INSERT OFFSET RING FOLIOS 23 TO 24 HERE
Mr. CANADY. Thank you, Reverend McDonald.
Rabbi Spero.
STATEMENT OF ARYEH SPERO, CONGREGATIONAL RABBI, CANTON, OH AND NEW YORK CITY, NY
Mr. SPERO. Good afternoon. After reviewing the Religious Freedom Amendment and speaking with Congressman Istook, I fully endorse the amendment's passage. As you are well aware, teachers and bureaucrats in today's schools are so fearful and confused when it comes to general statements about religion that even the most cursory and innocuous remarks by a school child regarding a routine religious activity is censored. This goes beyond separation of state from church into separation of state from common sense.
The bedrock of the American public school system is local control. If a local district chooses to allow a minute toward acknowledging God and his blessings, I should think that that would fall within the age-old, classic, Jewish tradition to acknowledge the presence of God in our midst. This is not done to proselytize, but simply acknowledge the Creator we all share.
My parents, and all of their Jewish peers in the previous generation, spent each morning during their public school years doing so—indeed, benefiting from the classic wisdom and guidance offered, for example, by Psalms. It set an edifying tone in which to begin the school day. Previewing the day's upcoming tradition of transmitting the accumulated wisdom of previous generations, The Psalms, they inspire; they dignify; they communicate in the most noble and majestic language the outlook and disposition of what constitutes a good civilization.
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Now those uncomfortable with the notion of God, Jew or non-Jew, will naturally be uncomfortable with such public acknowledgments. But should we then censor and ban everything in society that some person finds irritating? Instead of censorship, I would expect some elementary graciousness and generosity of spirit from those who seem bothered. Truly, they are not in any way jeopardized. Far more ennobling than stifling the heart-felt expression of others would be to exhibit respect and tolerance for others, as well as the ideal of live and let live.
Perhaps on one occasion, somewhere in some district a Jewish child may hear the name Jesus uttered. So what? Is Judaism so tenuous that it crumbles when simply hearing about other people's beliefs? How ironic that those who for their children espouse openness to all sorts of other ideas become insecure in this matter.
The remedy for such insecurity is not to stop believers from expressing thanks to God, nor to eradicate their freedoms. It is, instead, to have communal maturity. It is, rather, to overcome manufactured insecurities, strengthen the Jewish education of their own children, and, once and for all, begin believing in the general innate fairness of the American people—a unique national goodness which seeks not to harm, whose purpose is not to exclude, nor make uncomfortable, but simply to express the one idea shared by more Americans than any other; namely, a reliance on and gratitude to God. It's part of our heritage. It's a fairness which will be open from time to time to the compositions of minorities within a particular district. You see, I do believe in the fairness of the American people.
The slippery slope rationale used by opponents of any public expression or display of religious sentiment, be it a nativity scene, menorah, or benediction at graduation, exhibits a complete lack of confidence in our American citizens to discern and make common-sense, logical distinctions. It is elitist. The American people are not children. It is simply untenable to argue that if we allow a nativity scene in a park in Weehaken, New Jersey, the next thing we know America will become, say, a Catholic theocracy. Americans know the difference between that which is simply a general religious, traditional, seasonal display as opposed to that which is coercive, sectarian, and exclusionary. It is time that public locales are once again allowed the choice to provide its particular local public with that which the majority of its particular public desires.
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My friends, in the end, we don't wish to change the establishment clause. Rather, we wish to have it interpreted in a nonblack-and-white way, one with common sense, an interpretation transcending a literalness which has become childish and exaggerated, extravagant scare alarms by opponents of this amendment that are designed to frighten instead of elucidate.
Thank you.
[The prepared statement of Mr. Spero follows:]
PREPARED STATEMENT OF ARYEH SPERO, CONGREGATIONAL RABBI, CANTON, OH AND NEW YORK CITY, NY
After reviewing the Religious Freedom Amendment and speaking with Congressman Istook I fully endorse the Amendment's passage. As you are well aware, teachers and bureaucrats in today's schools are so fearful and confused when it comes to general statements about religion that even activity is censored. This goes beyond separation of state from church into separation of state from common sense.
The bedrock of the American public school system is local control. If a local district chooses to allow a minute toward acknowledging God and His blessings, I should think that would fall within the age-old classic Jewish tradition to ''Acknowledge the Presence of God in our midst.'' This is not done to proselytize but simply acknowledge the Creator we all share.
My parents and all of their Jewish peers in the previous generation spent each morning during their public school years doing so; indeed benefiting from the classic wisdom and guidance offered, for example, by Psalms.
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Those uncomfortable with the notion of God—Jew or non-Jew—will naturally be uncomfortable with such public acknowledgments. Should we, then, censor and ban everything in society that some person finds irritating? Instead of censorship, I would expect some elementary graciousness and generosity of spirit from those who seem bothered. Truly, they are not, in any way, jeopardized. Far more ennobling than stifling the heartfelt expression of others would be to exhibit respect and tolerance for others, as well as the ideal of live-and-let-live.
Perhaps on one occasion, somewhere in some district, a Jewish child may hear the name Jesus uttered. So what! Is Judaism so tenuous that it crumbles when simply hearing about other people's beliefs? How ironic that those who for their children espouse openness to all sorts of other ideas, become insecure in this matter. The remedy for such insecurity is not to stop believers from expressing thanks to God, nor to eradicate their freedoms. It is, rather, to overcome manufactured insecurities, strengthen the Jewish education of their own children and, once and for all, begin in the general innate fairness of the American people.
Mr. CANADY. Thank you, Rabbi Spero.
Mr. Hyde.
Mr. HYDE. Well, thank you, Mr. Chairman. I think these hearings have been excellent. We've learned a lot, and I congratulate this panel for bringing us a spectrum of opinions. I know Mr. Murray has done wonderful work, and Rabbi, I try to find a syllable I disagree with in what you said, and I can't.
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But, Reverend McDonald, I just have—this is idiosyncratic. It's my own peculiar view. I don't think we're going to solve the ferocious problem of racism, the ferocious problem of balkanization that we see in Ireland, northern Ireland, or we see in what used to be Yugoslavia, all built on hate and fear—I don't think we're ever going to solve those problems until there is a spiritual revival. And the custodian of spiritual revivals is the church, broadly speaking. It's organized pastors and people of faith and religion who will go into troubled areas and say, ''Stop the killing. Stop the hating. Stop the mugging. You're brothers; you're sisters; you have a purpose in life. You have an immortal soul. You have a destiny. God loves you.'' Those are the ways out of this morass.
How do you talk a kid in the innercity out of hustling crack cocaine when he can make $1,000 a day? Otherwise, he's poverty-stricken, hanging around the school yard. There has to be a spiritual component.
We had hearings one whole day here, and we heard from some of the toughest guys in the country—California, New York, Washington—and they were solving their problems without Federal aid, I might add—more is the pity; they should get some aid—because of the spiritual overlay on what was happening in the innercity and places like that.
So I'm inclined to agree with what Rabbi Spero said: a tolerance and a welcoming of all faiths; any belief that recognizes there is an objective standard of morality and there is Creator who made us in his image and likeness. And when we have an official hostility toward those thoughts, when we take separation of church and state—unhistorically, I might say, the first thing in the First Continental Congress they did was run out and hire a chaplain. And if you read the early addresses of our leaders, if you read the farewell address by Washington, you read Lincoln's second inaugural, if you read the Thanksgiving Proclamations, the Northwest Ordinance, there was a recognition of the primacy of God in men's affairs.
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And so this hostility, this resistance, I think moves in the opposite direction from moving us toward a solution, which I think lies in a spiritual revival, which is the peculiar business of religion, all religions——
Mr. MCDONALD. And if I might respond to that, I agree with you wholeheartedly in that regard, that there is a need for spiritual revival, but I don't want us to be naive. Let us understand that many of the problems that we face, whether you're talking about innercity or whether you're talking about apartheid in South Africa that was started by the Dutch Reform Church, or whether you're talking about the conflict in Ireland that you mentioned that is a religious battle more than a political battle, or whether you're talking about other conflicts around the world, our religious institutions in many instances were the instigators of these conflicts, not the ones who came to bring healing and aid to these conflicts.
I think in this country racism had a great deal of its basis in the church. That's why this particular amendment, for me, opens up Pandora's box. There is a lot of repenting going on now, and the Baptists want to repent; everybody wants to repent. Even the President's calling for repentance, and that's good. That's the beginning, but I don't think that we should ever, ever conclude, just based historically on what's fact, that this amendment in any way is going to all of a sudden make us love each other. That's just not going to happen.
There is room within the church and within our own ranks for healing, and the prophetic tradition, which I am a part of. The black church biblically is very conservative, has historically been very conservative. As I mentioned, many of these pastors initially supported this amendment. We were very angry that there's no prayer in schools and that there are many problems facing our communities, but once we got into the particulars of this amendment, and once we got into some of the questions that have been raised here about who decides—we know from experience, having already been a minority, and are a minority, that when a majority has the right to decide for a minority, that never works in our behalf. That's what we're against.
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Mr. CANADY. The gentleman will have two additional minutes.
Mr. HYDE. Well, I thank you, and I just, as you were speaking, I was thinking of the old saying, ''Christianity has not been tried and found wanting. It has been found difficult and not tried.''
All of the wars through history that have been religious wars—and they have been myriad and bloody; the Crusades certainly were among them—I don't think were the result of true religion; they were a distortion. I don't think any religion teaches in Ireland to go kill somebody. If they do, they're not following any true religion, and I really hate to see religion get a black eye from the distortion of religion, the perversion of religion.
But I think you and I agree of the need for a spiritual revival, and I share your concern about majoritarianism. That's why we have a Constitution; if you're not in the majority, you still have rights that ought to be respected and recognized. But, without a spiritual underpinning, I don't think that's going to happen. It's going to be a struggle for power, and we see the horrible results right now.
But, anyway, thanks for your contribution. Thank you.
Mr. CANADY. The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
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Before the 5 minutes start, I'd ask unanimous consent that my opening statement, which I didn't have a chance to read this morning, be inserted in the record.
Mr. CANADY. Without objection, so ordered.
[The prepared statement of Mr. Nadler follows:]
PREPARED STATEMENT OF JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Thank you, Mr. Chairman. I am pleased that you have scheduled this hearing today on what I believe is an important issue about which there has been a great deal of misinformation.
I would agree with our colleague from Oklahoma, the author of this amendment, that what is at stake is the religious freedom all American. hold dear. But I would argue that the Amendment before us today poses a clear and present danger to our fundamental religious rights and liberties.
It is precisely because I value our Constitutionally guaranteed freedom of religion that I strongly oppose this constitutional amendment.
Let's begin this debate by obeying the Commandment against bearing false witness. Today, right now, the right to engage in voluntary prayer in schools is most certainly protected by the constitution. The courts have said so, the US Department of Education has said so, and so have some of the organizations supporting this amendment. And as William Safire has observed, ''as long as there are math tests, there will be prayer in school.''
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Right now, any student who wishes to say grace over lunch or appeal for divine intervention during a math test has that right. Student groups established for religious purposes have the same right as any other student organization to use public school property for religious activities under the Equal Access Act. That's the law of the land.
Religious institutions participate in many publicly funded programs, have their messages broadcast over the airwaves, enjoy special religious exemptions from taxation, and have access to public facilities.
We do these things because faith and freedom of conscience matter to the American people, and throughout our history we have always believed that faith deserves a unique and protected place in the life of our nation.
And for that very reason, we have always kept the hand of government away from religion. WE have done that, not to protect government from religion, but to protect religion from government.
I continue to be amazed that people who call themselves ''conservatives,'' people who don't trust government to regulate the railroads or deadly weapons, trust the government to meddle in the religious education of our children. That belongs in our families, in our houses of worship and in our communities.
This amendment, despite its lofty title, would allow government to meddle in our religious institutions in a way that would undermine the balance that has protected our fundamental liberties for generations.
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The explicit text of the amendment also unmistakably would allow a majority vote in any state to establish a particular church. The amendment by speaking in terms of the right of the ''people,'' plural, rather than the right of each person, singular, dispatches individual religious liberties in favor of the will of the majority.
The people who wrote our constitution understood, from the bitter and very practical experience of religious oppression that each individual must be free to believe and to practice. Most importantly, they understood the danger of allowing the state to meddle in matters of faith.
Religious liberty is one of the bedrock principles of this nation—it is the reason many of our families came here in the first place. Religion is too precious and too personal to be placed under the control of government bureaucrats. It should remain, as it is guaranteed in the Bill of Rights, the sole province of individual conscience. Individuals should decide for themselves whether to be religious, and, if so, how to practice their religion—free from governmental coercion or control.
Mr. NADLER. Thank you. I'd also ask unanimous consent to insert in the record statements in opposition to the amendment from the Interfaith Alliance, the Coalition to Preserve Religious Liberty, the Religious Action Center of Reformed Judaism, the Jewish Council for Public Affairs, the National Council of Churches of Christ in the USA, and the American Jewish Congress.
Mr. CANADY. Without objection.
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[The statements of the Interfaith Alliance, the Coalition to Preserve Religious Liberty, the Religious Action Center of Reformed Judaism, the Jewish Council for Public Affairs, the National Council of Churches of Christ in the USA, and the American Jewish Congress follow:]
INSERT OFFSET RING FOLIOS 25 TO 32 HERE
Mr. NADLER. Thank you.
Mr. CANADY. The gentleman is now recognized.
Mr. NADLER. Mr. Chairman, just a few comments—first, on what the chairman of the full committee was saying a moment ago: I think I would agree that it would be nice to have a spiritual revival. I don't think, in terms of what we're talking about, to say that when the Ayatollah Khomeini issues blood-curdling fatwahs, that's not true religion—well, it's not my idea of true religion, but it's his idea of true religion, and it's the idea of true religion of those who follow him, and ditto for the people who did terrible things in the Crusades, and ditto for Torqueman, and ditto for other people.
And to say that when anything happens it's unfortunate as a result of people practicing what they thing is their religion, that's not true religion, well, that begs the question. The fact is that religion can be a tremendously uplifting thing for people, but it can also lead to terrible divisiveness. And one of the things that bothers me about the amendment is that it will lead, if passed, God forbid, into law, into terrible divisivenesses—different religions fighting each other in Congress for allocations for their schools and for their institutions.
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And let me comment also on what Rabbi—on something Rabbi Spero said. I am, very frankly, in disagreement with the implication of one thing you said—that ''those uncomfortable with the notion of God, Jew and non-Jew, will naturally be uncomfortable with such public acknowledgments of religion.'' It's not only people who are uncomfortable with the notion of God who are uncomfortable with such public acknowledgments; you don't have to be uncomfortable with the notion of God to be uncomfortable with such public acknowledgments. I consider myself a very religious person. As far as I know, I'm the only Member of Congress who sends his child to Yeshiva, and I'm a Yeshiva graduate myself. But I'm very uncomfortable with this.
I remember when I went to public high school in New York City; it wasn't our parents who suffered under this; it was some of us, too. And they read over the loudspeaker prayers every day, and we all participated in the prayers every day, and sometimes they were Christian prayers, and it wasn't that my Jewish faith was threatened by a Christian prayer; instead, it made me and the others in the classroom feel like second-class citizens. That is, the official prayer came over the loudspeaker from the dean's office, and everybody acknowledged it; we stood there silently because, as kids, we didn't have the nerve to walk out and face the ridicule of the other students. So we were made to feel like this somehow wasn't our school and our country as it was the others. We were second-class citizens.
And I remember, frankly, the joy and liberation I felt when I was sophomore or junior in high school, and the Supreme Court decision came down and it stopped. One day they simply didn't do it anymore, and I didn't look to homeroom class in the morning with distaste every morning. And that's what we're talking about here.
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Students can pray as much as they want to in public school; anybody can anywhere they want in this Capitol. And as someone said before—and I think Reverend McDonald mentioned—as long as there are math tests, there will be prayers in public schools.
And if a group wants to organize itself and take a school classroom at three o'clock or during lunch period, and organize a Christian or a Jewish or a Buddhist service, God bless them, and no law will stop them under current law.
What we're dealing with here is an attempt to say that a majority, whether the majority is of the student council or the members of a classroom, or whoever, can have organized, coercive prayer—whether you call it ''coercive'' or not, it's coercive, if people have the option of walking out, especially when you're dealing with children.
So I think that this, frankly, would supersede, the testimony of one of the prior witnesses to the contrary notwithstanding, any constitutional amendment supersedes anything previously in the Constitution, including previous constitutional amendments. So this would supersede the entire establishment clause of the existing First Amendment, and this would say, in effect, that you can establish religion in the sense of having coercive—in reality, whether you call it that or not—prayers in the public schools and in public institutions.
And then the question comes, of course, well, who decides that? And, inevitably, if you read this amendment, it comes to a majority. And you say you're not afraid of majoritarianism. The whole point of the First Amendment, the whole point of religious freedom, is that religious freedom should not depend on majorities. Religious freedom should not depend on persuading your neighbor that your religion is as good as his or that your religion, no matter how outlandish it seems to him, is okay. And whether that majority is Christian or Jewish or Mormon, or whatever it may be, the rights of the minority, be that minority one person, be that minority a Santeria cult follower that seems to most of us to be absurd, that person's rights must be respected.
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And if the majority is going to determine the prayer that's said in school, even if you have the right to stay silent or to walk out, how does that make the child feel? What does that say about the status of his religion? Because lacking the majority, he's not going to get his prayers said at all.
So it seems to me that this amendment is a tremendous imposition——
Mr. CANADY. The gentleman's time has expired. The gentleman will have two additional minutes.
Mr. NADLER. Thank you.
It seems to me that this amendment is a tremendous imposition on the religious freedom of minorities. It's a tremendous—it will be, as it was once before, or as the prior practice was once before, a tremendous burden on children who are not old enough to deal with it properly, and it will lead to religious divisiveness, as we fight—as everybody fights each other in every little town or in the halls of Congress about aid being to various religious institutions or through various religious institutions, or whether it should be the Star of David or the cross or the crescent or the satanist symbol on the townhall wall, or whatever.
So I hope to God we do not do this, and the solution for some of the problems that have been stated is simply to make administrators aware of the protections of the First Amendment now, that they cannot stop students from privately praying or organizing their own prayers in the schools or anywhere else.
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Thank you, Mr. Chairman.
Mr. CANADY. Thank you. The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Rabbi Spero, you mentioned that you saw no problem with the very brief, somewhat innocuous prayers that just recognize a deity without going into much detail. Did I understand that to be your position?
Mr. SPERO. Yes.
Mr. SCOTT. What happens—how do you feel about prayers that, in fact, are proselytizing?
Mr. SPERO. Well, I think that anything that would be of a nature that shows proselytization would be something that's outlawed because that would be advancing religion. I mean, the First Amendment is clear that you can't do anything to advance religion or try to do anything to establish religion. But a prayer that's not in the nature of proselytization, but simply acknowledgment, recognition of God, I find no problem with that at all. I find it to be in tune with our heritage.
Mr. SCOTT. And if the majority decided that they were going to pray the way they wanted to pray, and as Reverend McDonald mentioned, those in the captive audience, you wouldn't agree—you wouldn't support this amendment if it meant that people in captive audiences like that would be subjected to the proselytizing prayers?
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Mr. SPERO. Not proselytizing prayers, but that would be against the law because that would be an attempt to establish religion. That would be something that's advancing that religion, and that's already against the law.
I do have a difference of opinion, though, when it comes to the idea of majority rule. I do think in a locality we elect representatives, and those representatives, be they the city council or the school board, they act on behalf of the majority, and if they enact certain legislation or they compose a prayer, I'm all for that, because I don't feel that the minority is forfeiting its rights. The minority still has a right to practice its religion.
Mr. NADLER. Would the gentleman yield?
Mr. SPERO. What we are saying is that the minority practice of a little bit of tolerance and graciousness and generosity.
But the second thing I'd like to say is, you see, I don't look at the American people as a bunch of rednecks or a bunch of exclusionary types that are trying to do this to hurt other people. Most areas where I've been involved, I see a certain graciousness, and I do think that the minority will be given a chance by the majority to from time to time compose a prayer. I find that people do want to make people comfortable. You're not forfeiting your right by listening to someone else's prayer.
Mr. NADLER. Would the gentleman yield?
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Mr. SCOTT. I would yield.
Mr. NADLER. Thank you.
I'd just like to ask Rabbi Spero, how would you feel about a majority, such as we've had in several States over the years, that decided that, in the interest of animal rights, Shechita was forbidden because you have to anesthetize an animal? Do you think that's okay, too?
Mr. SPERO. If all of the legislators would decide it would be inhumane, then that would be the law, but it's our——
Mr. NADLER. Do you think that would be okay constitutionally and properly?
Mr. SPERO. Whatever the bulk of the legislature which is elected by the people decides, as long as it's constitutional, that's the law. What's great about the American political process is that I have a chance to try to persuade——
Mr. NADLER. But you don't think the minorities have rights in those cases?
Mr. SPERO. The minority has a right to that which is constitutional. If it would be shown that Shechita is unconstitutional, then we wouldn't have a right to it. But if Shechita is constitutional, of course, the minority would have a right, and it would be upheld by the Supreme Court——
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Mr. NADLER. Thank you.
Mr. SPERO [continuing]. Because that would be considered legal.
Mr. SCOTT. Reclaiming my time—you mentioned what kind of country we live in. Are you familiar with what a member of the board of education in South Carolina said in May 1997?
Mr. SPERO. Could you make me familiar with that?
Mr. SCOTT. ''Screw the Buddhists and kill the Muslims. What I want to do is promote Christianity as the only true religion. This Nation was founded to worship, honor, and glorify Jesus Christ, not Mohammed and not Buddha.''—May 17, 1997, Washington Post.
Mr. SPERO. Well, I think that in a country of over 260-270 million people you're going to have a few examples of that, but you shouldn't use that example, the——
Mr. SCOTT. No. If he were able to get a majority of the members of his school board to support his position, and pass a resolution declaring that jurisdiction to be a Christian State——
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Mr. SPERO. That would be unconstitutional because that would be the establishment of religion.
Mr. SCOTT. And so when it says, ''the people's right to recognize their religious beliefs on public property,'' it would not speak to that. It would say that, notwithstanding that language, he still couldn't do that?
Mr. SPERO. I think that if a local council in Weehaken, or wherever, decides to put up a nativity scene in December, or in Plainview, Long Island, they decide to put up menorah during the Hanukkah time, if that's what the local district wants, elected by the local people, than that's fine.
Mr. SCOTT. And if the local officials wanted to fund a drug rehabilitation program, a condition of which was participation in the religious activities, what would you think of that?
Mr. SPERO. That would be——
Mr. CANADY. The gentleman will have two additional minutes.
Mr. SPERO. That would probably be unconstitutional. These things have already been dealt with, where you're not giving anyone an option; you're coercing them to go to a particular group that is advancing a religion or is being sermonic—well, that's been dealt with by the courts. That will be unconstitutional. But, certainly, if people had options, one of which was to choose a drug rehabilitation seminar that used religion as the mechanism, that would be fine.
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Mr. SCOTT. And we've had legislation introduced in this Congress that would provide funding for drug rehabilitation programs, a condition for the participation of which would be to participate in the religious protocol.
Mr. SPERO. I'd be against that because that's coercion.
Mr. SCOTT. It's not coercion; you don't have to join that particular drug treatment——
Mr. SPERO. No, I mean, if you have the option to choose from this program which is religious and the other program, then that's fine. Let's say you were told that, as we mentioned before, either you go to jail or you go to this one particular program, and this particular program requires you to listen to sermons, well, that would be a coercion because that means the only way to save yourself from jail is involving yourself in religion.
Mr. SCOTT. As long as people have a choice, you wouldn't mind the local religious organization promoting its own religion as part of the activity? You wouldn't have a problem with that being funded, that activity being funded, by the government?
Mr. SPERO. No, so long as it produces a good, general result which is the rehabilitation of drug people, and they weren't forced to go to that program only.
Mr. SCOTT. Reverend McDonald, you mentioned you've heard the 70 percent figure, and I think you made reference to support for the school prayer amendment. Do you have some background also on that 70 percent?
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Mr. MCDONALD. Yes, that was a research study done by Peter Hart Research, which found that, although 68 percent of the public generally supports school prayer and the like, only 31 percent favor prayer conducted in the way that is offensive to other students or, in my opinion, as being proposed by the Istook amendment. I think this is definitely in opposition to many of the things that have been said here today. The majority of the American population is against any kind of coercive prayer, any kind of captive audience prayer, any kind of prayer that causes a particular individual or group to sit and listen or have to leave because that other prayer or order of the day—and it's not only from the Peter Hart Foundation; there are other institutions of higher learning that have also conducted research that shows the same thing; the 70 percent is not totally true.
Mr. CANADY. The gentleman's time has expired. I'll now recognize myself for 5 minutes.
And I'd like to follow up this line of questioning about school prayer and direct my question to Mr. Murray. A lot has been said today about this aspect of the amendment, but let me ask you to just state as succinctly as you can how you believe school prayer will actually work under this amendment, what will be permitted and what will not be permitted.
Mr. MURRAY. First of all, Mr. Chairman, I believe it will be up to the local school boards to determine the exact nature of the conduct.
Mr. CANADY. What would be within the scope of the sort of things that they could allow and what—obviously, there's some things they would not be allowed to do. I mean, they would not be allowed to say that everybody's got to recite the Lord's Prayer or that the Lord's Prayer is going to be recited every day, and those who want to participate can and those who don't want to participate don't have to. I mean, you would agree that that would be outside the scope of what they could do?
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Mr. MURRAY. Absolutely. Let's, just for a few seconds, discuss the Herdahl family in Mississippi, in which there was a prayer over the intercom every day. After several years of litigation, it was determined that that prayer could be conducted at the auditorium in the morning before school, and that the Herdahl children just simply did not need to attend.
By the way, just a matter of interest, one of the Herdahl children lost part of their foot in a lawnmower accident, and the people that are accused of slurring them were the ones that have taken care of the family and rushed them to the hospital.
On the other hand, the organizations which have raised hundreds of thousands of dollars, and perhaps millions of dollars, in the names of the Herdahl family did nothing for those children or the family, and they still live in a shack in Mississippi today, which is just an aside.
But I think that what happened in Mississippi in this particular case was rational American outcome to the situation, and one that I envision in other areas.
Mr. CANADY. So what do you think about having the daily prayer over the intercom? Is that something that would be permitted by the amendment or not permitted?
Mr. MURRAY. I think that under certain circumstances it would be permitted, if it was a rotating-type situation in which every denomination and faith in the school were represented. If, in a situation like Chicago or New York, where there were just too many faiths to accommodate that, then separate areas might have to be assigned before school for each individual denomination or faith to have its own type of prayer. There are schools where the vast majority of people—there are only two or three faiths or denominations represented, but there are other schools where there are so many that it would have to be up to the local school board and the local administration to determine something that was fair and adequate for all concerned.
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Mr. CANADY. Okay. Reverend McDonald, do you have any comments on that, other than what you've already said?
Mr. MCDONALD. I am opposed to—and I grew up where we had prayer over the intercom. I grew up in that setting, all of my elementary and junior high school. But as I have gone to seminary, I have had the privilege of traveling to over 20 countries. In Africa, it's primarily ancestral worship, and many of us have serious problems with that, but I respect that. I've been to the Middle East, where it's primarily Monotheism. I respect that. I've been to India, where it's Buddhism or Hinduism, and I have respect for that.
I'm a Christian, and I don't have any intentions of becoming anything else, but I do have problems with being a minority, causing others who may not believe like I believe, who may not think like I think, to over an intercom system—if it were my child and I was teaching my child another faith, another belief, to have to be subjected to second-class citizenship or having to leave, I think that that is inappropriate for a school or school board to sanction such a practice. So I would be very much opposed to that kind of captive-audience, public prayer over an intercom system.
Mr. CANADY. Okay. Let me get back to Mr. Murray. Do you envision situations in which school personnel could participate in the prayer that would be offered, assuming that—let's assume in a classroom the children have decided that they want to have prayer a certain way, and one of the children actually invites the teacher to pray; would that be permissible?
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Mr. MURRAY. I think that that would be permissible in certain circumstances, particularly in school systems such as New York, Chicago, Los Angeles, where there are a tremendous variety of religious beliefs and where rooms might have to be set aside to accommodate those individuals before school. I think that teachers of the same religious faith to be there and counsel, and to make sure that the conduct was appropriate in the room, I think that that would be appropriate. However, I don't think any teacher, I don't think a Catholic teacher should be forced to oversee a Baptist group, or vice versa. This should be something that would be participated in on a voluntary basis by a teacher.
Mr. CANADY. Okay. Well, thank you very much. I don't have any further questions. I want to thank the members of this panel for your contribution to our hearing today, and we are all very grateful for your help.
The subcommittee stands adjourned.
[Whereupon, at 1:48 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
Insert offset folios 32 here
INSERT OFFSET RING FOLIOS 34 TO 42 HERE
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[The appendix is being held in the committee's file.]
57–840
1999
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RESTORING RELIGIOUS FREEDOM
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
ON
H.J. Res. 78
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JULY 22, 1997
Serial No. 94
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
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STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
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Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
HEARING DATE
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July 22, 1997
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Bishop, Hon. Sanford, a Representative in Congress from the State of Georgia
Campbell, Hon. Tom, a Representative in Congress from the State of California
Capps, Hon. Walter, a Representative in Congress from the State of California
Davis, Derek H., Director, J.M. Dawson Institute of Church/State Studies, Baylor University
Edwards, Hon. Chet., a Representative in Congress from the State of Texas
Henderson, Sr., James Matthew, Senior Counsel, American Center for Law and Justice
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Istook, Hon. Ernest, a Representative in Congress from the State of Oklahoma
Lynn, Barry W., Executive Director, Americans United for the Separation of Church and State
McDonald, Timothy, Pastor, First Iconium Baptist Church, Atlanta, GA
Murray, William J., Chairman, Religious Freedom Coalition USA, and Government Is Not God
Parshall, Craig, Special Legal Counsel, Concerned Women for Ameria
Scarberry, Mark S., Professor, Pepperdine University School of Law
Spero, Aryeh, Congregational Rabbi, Canton, OH and New York City, NY
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bishop, Hon. Sanford, a Representative in Congress from the State of Georgia: Prepared statement
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution: Additional information
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Capps, Hon. Walter, a Representative in Congress from the State of California: Prepared statement
Davis, Derek H., Director, J.M. Dawson Institute of Church/State Studies, Baylor University: Prepared statement
Edwards, Hon. Chet., a Representative in Congress from the State of Texas: Prepared statement
Henderson, Sr., James Matthew, Senior Counsel, American Center for Law and Justice: Prepared statement
Istook, Hon. Ernest, a Representative in Congress from the State of Oklahoma: Prepared statement
Lynn, Barry W., Executive Director, Americans United for the Separation of Church and State: Prepared statement
McDonald, Timothy, Pastor, First Iconium Baptist Church, Atlanta, GA: Prepared statement
Murray, William J., Chairman, Religious Freedom Coalition USA, and Government Is Not God: Prepared statement
Nadler, Jerrold, a Representative in Congress From the State of New York:
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Additional statements from the Interfaith Alliance, the Coalition to Preserve Religious Liberty, the Religious Action Center of Reformed Judaism, the Jewish Council for Public Affairs, the National Council of Churches of Christ in the USA, and the American Jewish Congress
Prepared statement
Parshall, Craig, Special Legal Counsel, Concerned Women for Ameria: Prepared statement
Scarberry, Mark S., Professor, Pepperdine University School of Law: Prepared statement
Spero, Aryeh, Congregational Rabbi, Canton, OH and New York City, NY: Prepared statement
Waters, Maxine, a Representative in Congress from the State of california: Prepared statement
APPENDIX
Material submitted for the hearing
(Footnote 1 return)
It is hard to understand why the situation should not be seen symmetrically. If there is a conflict between the Establishment Clause and the right to Free Speech or the right to Free Exercise, why must free speech and free exercise give way? Why cannot the avoidance of a Free Speech or Free Exercise violation be just as compelling a reason for permitting a violation of the Establishment Clause as it has been elaborated by the Court?