Long-shot Amendment Could Redefine Religious Freedom

A constitutional amendment designed to reverse decades of Supreme Court rulings on the separation of church and state is set to be voted on by the US House of Representatives as early as June 4.

The Religious Freedom Amendment would, among other things, bolster prayer in schools by barring government infringement on "the people's right to pray ... on public property."

Although it's being pushed by nearly two dozen conservative groups, including the powerful Christian Coalition, the amendment faces a long, uphill fight toward final passage.

Yet the fact that this hotly contested measure has gone so far in the legislative process underscores the growing scope and intensity of the national debate over religion's role in public life.

Indeed, the vote will be the first in 27 years by the full House on a constitutional amendment about religious freedom. It will also be the first time such an amendment has come to the House floor with a committee endorsement, in this case the powerful Judiciary Committee.

Backers say decades of misinterpretation by the US Supreme Court have distorted the original intent of the First Amendment and eroded religious freedoms.

"Opponents of religious freedom take Supreme Court rulings and use them in the lower courts as launching pads for further attacks on religious expression," says Rep. Ernest Istook (R) of Oklahoma, who sponsored the amendment. "We need to stop that, and this is the only way the Constitution provides for correcting misinterpretation by the Supreme Court."

Crosses in courthouses

Representative Istook says the amendment would protect forms of religious expression such as putting crosses or nativity scenes in public places, displaying the Ten Commandments in a courtroom, and holding prayers during school hours.

But opponents - who include a broad coalition of more-liberal religious groups as well as President Clinton - say the First Amendment already provides adequate protection and that amending it would be dangerous.

"It's taken since the 1940s and untold amounts of litigation to get to a clear understanding of religious freedom," says Oliver Thomas of the New York-based National Council of Churches of Christ in the U.S.A. "The current religion clause is 16 words. And now we're going to adopt one with 86 words? How long is it going to take for the courts to figure out what the new amendment means? We should call this the permanent-employment act for First Amendment lawyers."

Opponents don't think the Supreme Court has gotten everything right, but they contend better education about what the law currently protects can resolve most religious disputes in public schools and in the public square.

They also worry the amendment would allow local governments to discriminate against minority religions. The amendment "talks about the people's right to acknowledge their religious heritage in a majoritarian, collectivist sense," says J. Brent Walker of the Baptist Joint Committee here. "But the whole idea behind the First Amendment is counter-majoritarian - to protect the rights of individuals and minorities."

Mr. Thomas adds that it's not just small churches that are in danger of being sidelined.

"In America we're all a minority. The Baptists are as thick as hogs in east Tennessee, but move me to Utah, or southern California, or Miami, and I'm in the minority," he says. "It won't just be the exotic groups that will be sidelined, it will be Presbyterians, Catholics, Jews, and Baptists. This amendment flirts with the tyranny of the majority."

Strong-enough protections?

But supporters point out that the amendment explicitly states that no one will be required to participate in anything they don't believe - that it is designed only to ensure that religious freedoms get the same protections as other First Amendment rights, such as freedom of speech and the press.

Opponents argue the amendment isn't just about religious freedom but about access to taxpayer dollars. For example, it states "equal access to a benefit cannot be denied on account of religion," but it's unclear what constitutes a benefit.

"If it [the amendment] passed, Bob Jones University would be entitled to the same public funding as the University of South Carolina, Jerry Falwell's 'Old Time Gospel Hour' to the same tax support as National Public Radio," says Thomas. "Every religion in America - from Heaven's Gate to the Nation of Islam - will have its hand out."

Although many supporters say the amendment could help pave the way for educational vouchers, which parents could use to pay for education at parochial schools, they deny it is designed to provide money to directly fund religious activities.

"Why should the government give money to secular charities but exclude the Salvation Army just because they say, 'God bless you,' when they give you food?" asks Forest Montgomery of the National Association of Evangelicals, a pro-amendment group.

Other opponents say they smell partisan politics. With congressional elections only five months away, they say conservative Christians will use the vote as ammunition for the campaign.

As for actual passage, it isn't likely. The amendment needs a two-thirds majority of both houses of Congress. It must also be ratified by 38 states.

But Istook says most constitutional amendments require multiple efforts to pass, and that even if it fails this time around, the issue will not go away.

Defining Wall Between Church, State

First Amendment of the US Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Religious Freedom Amendment (Proposed):

"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 a benefit due to religion."