First Amendment is all we need to protect religion

Thursday, April 23, 1998

Some might be tempted to blame El Niño or the approaching millennium for the compulsion of some members of Congress — primarily conservative Republicans — to clutter the Constitution with amendments that would gut the Bill of Rights.

A more realistic explanation for congressional obsession with 1950s values, however, is that Congress is simply bowing to Pat Robertson’s Christian Coalition.

The 105th Congress is working to pass on to the states for ratification two amendments that are an affront to free expression. The first would prevent citizens from indulging in the wildly popular pastime of torching the American flag.

The second, now nearing a congressional vote, is the Religious Freedom Amendment. This measure marks the first time since 1971 that Congress has attempted to offer a constitutional amendment that would open the door to government-sponsored religious activities in public places.

Despite the amendment’s title — which implies an expansion of religious liberty — the act is nothing more than constitutional permission for government to force religious values on Americans.

Rep. Ernest Istook, R-Okla., introduced the amendment last summer. It proclaims that no government entity shall infringe on the right of the people to “acknowledge God” on public property, including school property. It also states that federal or state government cannot “discriminate against religion, or deny equal access to a benefit of religion.” The House Judiciary committee approved the bill, along party lines, last month. A full House vote is expected in late April or May.

Istook’s amendment, if added to the Constitution, would directly contradict the First Amendment principle that states, “Congress shall make no law respecting an establishment of religion … .” U.S. Supreme Court Justice Abe Fortas in 1968 said this “establishment” clause requires federal and state government to “be neutral in matters of religious theory, doctrine, and practice.

“It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite,” Fortas wrote.

The proposed amendment, however, sets neutrality aside for constitutionally supported government involvement with religion.

The amendment could authorize officially sanctioned religious activity in schools, so long as government does not “require” anyone to pray. States could authorize public schools to begin everyday with a student delivering a prayer — one that acknowledges God — or could simply let students vote to decide which prayer should be recited over the intercom or given at a graduation ceremony. The students of majority faiths could and probably would set the religious agenda for an entire school.

Finally, school-voucher plans using tax dollars to send children to private, parochial schools would no longer be constitutionally suspect. Instead, government would be free to funnel tax dollars into private schools without worrying about entanglement with the operation of religious schools.

Rep. Istook and those who support his efforts believe a religious-freedom amendment is needed because courts have so misinterpreted the First Amendment that individuals have lost the right to publicly express their religious beliefs. In fact, the public — especially Istook’s constituents — should be outraged by his apparent ignorance of constitutional law and/or his blatant pandering to the Christian Coalition.

The First Amendment does not bar students from voluntarily praying in public schools. The U.S. Supreme Court rulings from the 1960s that Istook describes as being hostile to religion actually arose from situations in which a government entity attempted to force Christianity upon children. Those decisions simply stated that the First Amendment does not permit government-sponsored religion.

In the 1962 case of Engel v. Vitale, for instance, the Supreme Court ruled that a prayer written by public school officials amounted to government promotion of religion. The prayer in question was composed by the New York state school board for recitation at the beginning of each school day, and it ran thus:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

Not surprisingly, some parents objected to the state’s forcing their children to profess a belief in God.

Writing for the majority, Justice Hugo Black noted that the “very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.”

By the time the Constitution was adopted, many Americans were aware of the dangers of a government entangled with organized religion, Black wrote.

“These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power,” Black wrote.

The Supreme Court has recognized the framers’ concerns, and that is why its ’60s decisions — including Vitale — struck down government attempts to sponsor prayer or other religious activities. Those cases, however, noted that voluntary religious expression by students is a different thing altogether and does not raise the same concerns. Moreover, those cases pointed out that religion and religious literature, including the Bible, may be studied in an academic manner in public schools.

Istook’s amendment would do away with the First Amendment’s “wall of separation” between church and state. That wall has been interpreted by the high court to require government and its agencies — including public schools — to remain neutral regarding religion. The government may not promote a particular religion as superior to another; it may not promote religious philosophies as superior to secular philosophies; and it may not be antagonistic to religion.

If passed by Congress and ratified by 38 states, the Religious Freedom Amendment could easily be used to establish a governmentally sanctioned religion. The amendment’s broad wording would permit government officials to force Christianity, or some other belief system, upon a public that expects government to protect religious liberty by remaining officially neutral.