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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 Christian state."

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.

Talking Points

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 individual’s 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).

The Anti-Defamation League, founded in 1913, is the world's leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry.

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