ADL ISSUE BRIEF: "Religious Freedom" Amendment (H.J.Res. 78)
The proposed constitutional amendment, sponsored by Rep. Ernest Istook (R-OK), poses
the most significant church-state separation threat of the 105th Congress. The measure
creates greater confusion about the proper boundary lines between church and state. The
amendment, currently cosponsored by 153 House Members, was approved by the House Judiciary
Committee on March 4, and consideration by the full House is expected any day.
Text of the proposed amendment: To secure the people's right to acknowledge
God according to the dictates of conscience: Neither the United States nor any State shall
establish any official religion; but the people's right to pray and to recognize their
religious beliefs, heritage or traditions on public property, including schools, shall not
be infringed. Neither the United States nor any State shall require any person to join in
prayer or other religious activity, prescribe school prayers, discriminate against
religion, or deny equal access to a benefit on account of religion.
The phrase in the amendment "the people's right to pray ... on public
property, including schools, shall not be infringed" would expand the
opportunity for organized prayer in public schools (including teacher participation)
throughout the school day and at school functions, like assemblies and graduation.
The phrase in the amendment "the people's right ... to recognize their
religious beliefs, heritage or traditions ..." would permit a judge to lead
his/her courtroom in prayer, provide authority for Nativity scenes in every City Hall, and
even allow a state, in recognition of its "heritage," to declare itself "a
The phrase in the amendment "Neither the United States nor any State shall
... discriminate against religion, or deny equal access to a benefit on account of
religion" would seem to require the government to equally fund secular
and religious activities as well as public and parochial schools.
We already have a "Religious Freedom" Amendment. The First Amendment is
our "religious freedom" amendment -- and it has served the nation well for over
200 years. Despite the fact that the Istook amendment is couched in
neutral-sounding language and promoted as providing "equal access" for religion,
passage of the amendment would dramatically alter the existing church state balance.
The proposed amendment is unnecessary. Support for the amendment is based on the
false premise that current law does not protect religious expression. Yet, recent Supreme
Court decisions have expanded access to public funding and facilities for religious
activities. In addition, last year, the Secretary of Education sent guidance on a wide
array of currently-permissible areas of religious expression in public schools to over
15,000 school districts across the country. This document was adapted from work completed
by an interdenominational coalition of over thirty religious and civil rights groups. On
occasion, teachers and school administrators do act to inappropriately restrict religious
expression in school, but these periodic mistakes should not give rise to an unprecedented
amendment to the Bill of Rights.
The proposed amendment is confusing. Despite several Committee hearings on the
measure, it is entirely unclear whether the proposed amendment would replace or merely
complement the First Amendment -- and this means years of uncertainty as courts determine
what the new amendment means.
The proposed amendment is divisive. This proposed amendment would authorize a wide
variety of state-sponsored religious practices, including prayer in public school
classrooms and religious displays at the heart of government. It would also appear to
require the government to fund religious and secular activities equally -- setting the
stage for inevitable conflicts over limited resources. Religious practice and belief is
too important to permit government intrusion and regulation.
There are better ways for Members to demonstrate they care about religious freedom. ADL
has urged Members to support the Workplace Religious Freedom Act (WRFA), would
address two restrictive Supreme Court decisions and expand the rights of employees to be
free from religious discrimination on the job. In addition, passage of federal legislation
to prevent unwarranted governmental restrictions on an individuals religious
observance remains a top priority in the aftermath of the bitterly disappointing Supreme
Court action last July to strike down the Religious Freedom Restoration Act (RFRA).
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