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I am opposed to amending the Constitution in ways that would significantly alter the meaning of the religion clauses as we now understand them. The proposals for a Religious Equality Amendment represent radical surgery--surgery from which I fear we would never recover. These proposals are considerably more sweeping in their effects than advertised. In fact, they essentially repeal the Free Exercise ana Establishment Clauses as we have come to understand them over more than 200 years of interpretive experience. The Free Exercise Clause is subsumed by the Free Speech Clause; any land of religious expression becomes protected "free speech" and the Establishment Clause, intended by the framers to place restraints on the governmental advocacy of religion, is explicitly rendered void in its ability to curb the new "free speech" advancements. Beyond these generalities, I have many specific objections to the kind of Amendment being proposed, but in the interest of time, I will briefly mention only four.
1. Such an Amendment would threaten the religious liberty of America's religious minorities, since it would result in, despite what I can only assume to be the best intentions of its draftspersons, what James Madison called "the superior force of an interested and overbearing majority." That is, the Amendment would have the effect of allowing Christian expression (and I should mention here that I speak as a Christian) to drown out the voices of minority religions and the Establishment Clause would be stripped of its power to prevent it.
No one doubts that this nation commands a Christian majority. Under the proposed Amendment, not only would state, county, and local governments have the right to declare themselves to be Christian governments, declare themselves to be Christian governments, they could freely erect various symbols to prove it. Someone will surely reply, "Well, this is a religious equalities amendment. Christians may have the right to do that but so would other religious groups." Fine, but who really believes that any other religion would be able to command a majority on various government councils. Even if a Jewish, Islamic, or Buddhist majority were to gain power long enough to enact measures elevating their own religion to preferred status, how long would that majority remain in office? And even if they were able to enact such measures with some permanence, is this what we want in America - a competition of Christian versus non-Christian groups, all vying to create their own establishments, reducing members of the nonpreferred religions to second class citizen status?
I would especially worry about this problem of majoritarianism in the public school setting. Under the proposed amendment, students would have the right to pray or engage in other religious expression any time they would be entitled to engage in nonreligious speech. In other words, school children, individually or in groups, would be entitled over the objection of dissenting students, to engage in vocal prayer or religious discussion or instuction in the the classroom setting, in school assemblies, commencement exercises, or athletic events and postpone celebrations simply because this is speech not to be treated as religious speech. It will be argued by the Amendment's proponents that this should be protected free speech, but I would submit that this is precisely why religious speech is separetely treated in the First Amendment. Religious speech is speech of a special and particular character, and must sometimes play by different rules. One of these rules, as evidenced by the fact that the framers intentionally Juxtaposed the Free Exercise Clause with the Establishment Clause, is that certain kinds of religious speech in public settings go too far and must be restrained by the Establishment Clause. But of course that is why in the proposals we are seeing, it is not enough to provide that religious speech is only free speech; they must go further to provide that the Establishment Clause cannot be invoked to limit such "free speech."
2. The proposed Religious Equality Amendment is not merely a provision to convert all religious speech to free speech. It is a funding mechanism as well. It would give governments at all levels the power to appropriate monies to churches, mosques, synagogues, and various other houses of worship and religious organizations, including religious schools. The argument is being put foward that all religions will be entitied to the public purse, but I submit that this will create chaos. Giving money to any religious group will automatically entitle every other religious group to equal privileges. We will turn religion into political football, and I would guess that in the end, minority religions, without the financial resources or political clout to ensure that they get their share of the pie, will be badly discriminated against. What is so wrong with the current system of requiring religion to rely on its supporters, and ultimately, upon God, for sustenance? To do otherwise defames what religion is all about.
It is incredible to me that in the United States of America, where religion is alive and robust, we may be on the verge of adopting funding practices that have for centuries characterized Europe, where religion is essentially moribund.
3. Let's be honest. The primary reason for the passage of a constitutional amendment dealing with religion is the apparent decline of morality in our nation. All of us are vitally concerned with what we perceive to be a moral decline in America. I would submit, however, that the cause of the decline is not, as many would lead us to believe, the Supreme Court decisions of the 1960s - specifically the Engle and Schempp decisions and their progeny - which removed teacher- led prayers and religious exercises from the public schools, nor is the cure in the 1990s and beyond more prayer and religious exercises in the public schools.
We live in a complex society, and I think we should recognize that many social forces have been at work over the past thirty years which have contributed to the present moral decline. These would include rapid population increase; the post-WW II economic boom which fed materialistic attitudes; increased ethnic and religious pluralism; the rights movements of the 60s - civil rights, minority rights, women's rights, children's rights, and criminal rights; the Vietnarn War; increased exposure to the global community; and, as Senator Dole reminded us last week, the prevalence of sex and violence themes in the media. All of these factors have had searing and lasting effects upon our society. My point is that if we an in a moral-slide - and I think we are (a slide which is worldwide, by the way, and not specific only to the U.S.), then it is naive to point the finger at the Supreme Court for causing it all, and it is therefore a serious overreaction to amend the Constitution to remedy a problem which does not have its source in the Constitution or in faulty Constitutional interpretation.
4.As I have already mentioned, the proposed Amendment allows governments to give public and ceremonial accommodation to the religious heritage of the people. This would give government a whole new jurisdiction over religion and permit governments to advance religions which are repugnant to many of our people. Such a provision would vitiate the whole doctrine of church-state separation which Sanford Cobb, the eminent religious historian of earlier this century, referred to as "America's great gift to civilization and to the world." The genius of the American system is that in religious matters the government is neutral - by law. This commitment allows all citizens to practice their religious faiths freely without having religion imposed upon them by government.
The proposed Amendment would open up practices that we thought we were putting behind us 200 years ago when our Constitution and Bill of Rights were adopted. It would represent 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 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, witchhunts, and religious wars, were thought to be the result of government having too much authority in matters of religion. The evolution of individual rights, which began in earnest in the 14th century, led human government - in the West at least - to abandon its previous role of causing all people to conform to a common faith in favor of a new role of protecting individual rights, including the free exercise of religion. In the U.S., the Fust 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 Amendment being circulated would create a whole new framework of fusion of religion and government - in essence, a reversal of the separation that occured at the founding and a return to the classical and medieval type polity which actively promoted religion as the glue of the social order. In this framework religion becomes a tool, a means to control behavior, an instrument to revivify the people, a cheap hireling to provide a basis for unity, a means merely to achieve political ends. In the end, religion is the loser. True religion, genuine faith, is defamed, desecrated, and trivialized. This is the lesson of history, yet we are on the verge of repeating the same error. I fear we have not learned our history lessons very well. Religious belief has its public dimensions, to be sure, but it is first and foremost a matter of private right. Church-state separation is the great protector of true faith, not its inhibitor. We would do well, I believe, to heed the words of James Madison: "The religion of every man must be left to the conviction and confidence of every man. In matters of religion no man's right is to be abridged by the institution of civil society; religion is wholly exempt from its competence."
I thank you for the opportunity to make this statement.