Subcommittee Hearing on H.J. Res. 78, "Proposing an Amendment to the Constitution
Restoring Religious Freedom"
Tuesday, July 22, 1997
2141 Rayburn House Office Building
I am pleased to testify before this Subcommittee in my capacity as special legal counsel to Concerned Women for America, in their support of H.J. Res. 78, the Religious Freedom Amendment.
There can be no greater task for America than to complete the vision of our Founding Fathers to secure liberty. And among those liberties to which they pledged their lives, their fortunes, and their sacred honor, there is no greater liberty than that of religious freedom. After securing governmental independence for America, they infused their love of liberty into the fabric of the Constitution - in the Preamble which promised to "secure the blessings of liberty to ourselves and our posterity." Later, the specific concept of freedom of religious faith was enshrined in the text of the First Amendment.
The problem that cries out for the remedy that the Religious Freedom Amendment provides is not the inadequacy of the First Amendment. Nor does the problem lay with the vision of freedom of our Founders. The problem is the inability of the federal Judiciary, as a whole, to breathe life into those words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Instead of giving life to that promise of liberty, our courts have, on average, and within the last 50 years, forced the full and free exercise of religion into the confines of a legalistic iron lung, constructed of bad history and secularistic presumptions.
Starting with a misguided theory of a "wall between church and state" that was to be "high and impregnable," the Supreme Court has, within the last 35 years , banned prayer in public school, Bible reading in public school, the posting of the 10 Commandments on public school walls, a moment of silence or prayer in public school, a nativity scene at Christmas inside a government building, a prayer of a rabbi at a public high school graduation ceremony, and a school district designed to accommodate a religious minority even though the education provided was to be entirely secular.
The lower federal courts have followed suit and added brick upon brick on the "wall of separation" between religion and all manner of public life. Such decisions have banned these examples of benign religious expression and recognitions of our religious heritage: The 10 Commandments from court house walls, teachers from exposing their own Bibles to the view of their students, a grade school student from sharing a video with the class showing her singing a religious song at church because of the potential for offending other students, another grade school student from writing a paper about Jesus Christ - and supporting the decision of the teacher who viewed the religious nature of the subject as objectionable, the display of student art because of its religious theme, voluntary and student-initiated prayer at graduation, state laws that permit student-initiated prayers at public events even if they are nonsectarian and nonproselytizing, a painting of Christ from its position on a public school hall where it had been hanging for decades, a Latin cross on one of four quadrants on a city seal, a depiction of a local Mormon temple on a city seal, and another Latin cross with the name of the city - Zion - on a city seal, and a cross on top of a city water tower.
The settled law regarding the breadth and scope of protection for political speech and other non-religious forms of expression in America, has been arbitrarily denied religious expression - even though the Founders felt that religious practice deserved its own listing separate from of speech, press, and assembly.
The reason given for this "separate but unequal" treatment of religion lies in the wrongheaded idea that the Establishment Clause should not only eclipse and swallow-up the Free Exercise Clause, but that the Establishment Clause should somehow be a safe-haven primarily for the sensibilities of atheists, agnostics, or anti-religious dissenters. There is no evidence that the Establishment Clause should exist to guarantee some strange kind of freedom from seeing or hearing anything of a religious nature with which we might disagree. In summary, the First Amendment has wrongly been interpreted to create a right not to be intellectually confronted by spiritual ideas we don't like. Such a constitutional right to be mentally comfortable places an intolerable burden on the rights of the religious majority to be silent. It is the most perverse example of what First Amendment scholars usually call, the "heckler's veto."
This kind on First Amendment hypocrisy is seen even in the academic and university realm. In Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), the Court of Appeals ruled that a public university could forbid a professor from discussing his own religious beliefs in class. Extending this even further, I am currently representing a tenured professor who was banned by a public university from using any supplemental reading texts "of a religious nature." The case is presently before the 3rd Circuit Court of Appeals. The issue is whether a university can deemed to have been reasonable if it bans textbooks primarily because the content is characterized as religious, even if the content is relevant to the subject of the course, and the professor presents the course in a neutral and objective way. The fact that the question has to be asked, illustrates the depth of the problem.
As a side note, it is a rather sad irony that one of the books banned was a work entitled Book Burning, by syndicated columnist Cal Thomas. The book cited examples of anti-religious censorship in modern culture.
Unfortunately, because the law not only functions to proscribe what conduct is legal and illegal but also sets a moral and normative tone for our culture as a whole, the general hostility of these court cases toward religion has established a set of values for federal and state agencies, public officials, and government employees. They may not know much about constitutional law, but the "high and impregnable" "wall of separation" between church and state has become the mantra of modern bureaucrats.
Those lawyers who, like myself, spend a great deal of time dealing with religious freedom cases, have witnessed the constant floodtide of religious freedom violations occurring in public schools, in public employment, and in public forums of almost every variety - school students banned from wearing religious apparel, bringing their Bibles to school, prohibited from infusing their sincerely held religious beliefs into assignments, including such things as valentines cards and art projects - members of our military told not to use religious references in their computer communications, public employees told to refrain from voluntary Bible studies during their lunch breaks.
Those who oppose H.J. Res. 78 often do so by arguing that these violations are but a few isolated anomalies. However, I fear that no number of violations of religious freedom will convince them. I believe that the average citizen can relate instances of anti-religious hostility in their own community. Further, a quick glance at the daily newspaper shows new attacks every day.
Another attack is the argument that these cited violations are mere inconveniences rather than outright persecution - trifles as it were - that the faithful should be willing to endure, and that the Congress, and the American people should not have to bother remedying. This argument is perhaps the most dangerous. It supposes that we are religiously free as long as tanks are not rolling over the bodies of religious dissidents, or people of faith are not summarily lined up in front of firing squads. If this is to be the measuring stick of freedom, we are using a very crocked stick indeed.
It is time to reaffirm the common sense of the Founders of this nation by passing H.J. Res. 78. The Church/State jurisprudence of the Supreme Court has created chaos rather than order in this field. It has been soundly criticized by then Associate Justice Rehnquist in 1985 as being "neither principled nor unified ... The 'wall of separation between church and state' is a metaphor based on bad history, a metaphor which ... should be frankly and explicitly abandoned." In 1984 Justice Burger, speaking for a plurality of the Court, conceded that the "wall of separation" "metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state."
In 1992 Justice Scalia commented that "our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions."
It appears that the predictions of Supreme Court Justice Stewart, in 1963, were correct: that the decisions of the high court represented "government support of the beliefs of those who think that religious exercises should be conducted only in private."
The remaining question becomes one of implementation: whether a constitutional amendment is the necessary cure for the constitutional malady.
The reason why H.J. Res. 78 is necessary, and a congressional statute is insufficient, has been amply illustrated by the Supreme Court a few weeks ago in City of Boerne v. Flores, ___ U.S. ___, 1997 WL 345322 (1997).
While technically construing section 5 of the Fourteenth Amendment, and the power of Congress under that section, the Court made it clear that it was ultimately concerned with the separation of powers:
"The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action and this Court has had primary authority to interpret those prohibitions... The power to interpret the Constitution in a case or controversy remains in the Judiciary."
Thus it is highly doubtful that a religious freedom rider on a funding bill would succeed, as an example. If the religious freedoms outlined in such a federal statute exceed those established by the Supreme Court, they wil be trumped by the Court's use of the Establishment Clause, aided by notions of separation of powers and the superiority of the Court's authority to interpret the constitution.
This issue has been debated over the decades, and through numerous congressional
hearings in both Houses. More recently, this Amendment was the subject of hearings in the 104th
Congress, and now in the 105th. The measure of our commitment to religious freedom can no
longer be determined by our willingness to debate - it must be measured by our courage to vote.
In 1777 Thomas Jefferson wrote his often quoted belief that "Almighty God hath created the
mind free ..." The time has now come to test whether we, as a people, shall remain free to express
that belief in all the public venues of American life.