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
10:00 a.m.
I would like to thank the chairman for holding these hearings on the important subject of the proposed Religious Freedom Amendment, and for inviting me to address the subcommittee.
My name is Mark S. Scarberry. I am a professor of law at Pepperdine University School of Law. My areas of teaching and study include the constitutional and statutory protection of religious liberty. I have also spent a great deal of time considering how courts interpret language drafted by others--language drafted by state legislators in the commercial law field, language drafted by Congress in the bankruptcy field, and language drafted by those who enter into contracts.
Few supporters of the Religious Freedom Amendment would suggest that the drafters of the First Amendment had the wrong ideas about religious freedom. We are here largely because it is thought that the Supreme Court has misinterpreted the language of the First Amendment.
Our first thought, then, should be for clarity. If, by undertaking the enormous effort needed to amend the Constitution, we seek to correct a misinterpretation of the Constitution, we must do so in a way that will not itself be misinterpreted. Thus my primary job this morning is to examine the language of the Religious Freedom Amendment and to help the subcommittee determine how that language may be interpreted and where ambiguities may lie.
As a result, I will raise more questions than I answer. The subcommittee must be the judge of which questions, if any, need to be answered by changes in the text of the proposed amendment, which need to be answered by carefully crafted legislative history, and which can be ignored safely. Note that many of these ambiguities are also pointed out in David M. Ackerman's June 11, 1997 analysis of the Religious Freedom Amendment for the Congressional Research Service (the "CRS Memo"). In referring to the proposed amendment, I will treat it as consisting of two sentences. The first consists of everything through the word "infringed," including the preamble; the second consists of the final sentence of the proposed amendment.
Before raising those questions, I would like to give the subcommittee my views briefly as to the need for a constitutional amendment. There is probably a need for an amendment to protect religious expression. The Supreme Court has by and large provided appropriate protection for religious expression, but many administrators, bureaucrats, and lower court judges fail to do so. Despite the best efforts of many groups to educate them, many of them seemingly continue to believe that the Constitution requires discrimination against religious expression. The adoption of an amendment explicitly protecting religious expression should make the point sufficiently.
There is probably also a need for an amendment to prohibit the denial of benefits on account of religious expression, belief, or identity. Government--federal and state, including local government--has displaced a large part of the traditionally private portions of our society and economy. To deny religious groups an equal opportunity to share in public benefits along with secular private groups is to place religious groups at a serious disadvantage and to entice them to shed their religious character. For example, I am aware of a group which provides a very valuable service in alternative dispute resolution which changed its name and strongly toned down its religious character in order to obtain government funding. The Supreme Court has moved toward a truly neutral approach in this area, an approach which would not penalize groups for their religious character, but it has not yet arrived, and several of the decisions moving in that direction were closely divided, including the very recent decision in Agostini v. Felton, permitting Title I remedial aid to be provided on parochial school campuses.
I do not believe, however, that a school prayer amendment is wise. In our pluralistic society, organized group prayer during class time in the public schools would do more harm than good to the cause of religion; it would engender bitterness. Prayers either would tend to oppress the minority or would be so watered down in content as to harm the religion that a school prayer amendment seeks to protect. I am concerned that the amendment under consideration today is in effect a school prayer amendment, as I discuss below. In addition, I am concerned that it does not provide clear guidance on the issues with which it is concerned.
Rather than go on at length as to my views on the need for an amendment, I would urge the subcommittee members to reread the testimony Professor Michael McConnell gave before this subcommittee on October 20, 1995, together with the testimony of Professor Douglas Laycock given on the same date. They are, in my view, the two foremost scholarly champions of religious liberty in America today. Their views should carry much more weight than mine, but I agree with both of them that a school prayer amendment would be a mistake. On the need for an amendment to protect religious expression and to prohibit the denial of benefits on account of religion, I think Professor McConnell makes a compelling case. Professor Laycock, though, makes just as strong a case for ensuring that protection of religious expression does not allow persons acting in governmental capacities to favor one religion or to favor religion in general. (By the way, the Ceniceros Equal Access Act case in the Ninth Circuit mentioned in Professor Laycock's testimony was finally decided this year in favor of the students; they are entitled to hold their religious club meeting during the lunch hour. The Equal Access Act continues to be a success)
Given these comments you will not be surprised that I prefer the amendment proposed in the 104th Congress by Representative Hyde and Senator Hatch.
Of course there is now an additional possible need for a constitutional amendment, because the Supreme Court has held that the Religious Freedom Restoration Act as applied to the States exceeded Congress' authority. You have already held hearings on that matter, and thus I will not address it except in response to any questions.
Now I will address the possible meaning of the proposed amendment before the subcommittee, and in particular the ambiguities which the subcommittee may wish to clarify.
The first possible ambiguity is whether the proposed amendment binds only the federal government or both the federal government and the state governments. The proposed amendment does not explicitly refer to the States, and the term "Government" in an amendment to the United States Constitution could be a reference simply to the federal government created by that Constitution. Of course both sentences of the amendment refer to public schools, which implies very strongly that the amendment is intended to bind the States, which for the most part operate the nation's public schools. However, the federal government does operate public schools, at least indirectly, in the District of Columbia, and thus it would be wise to clear up this possible ambiguity.
The preamble language of the proposed amendment creates an additional possible ambiguity. The preamble is an incomplete description of the reasons for the amendment. The amendment deals not only with a right to acknowledge God according to the dictates of conscience but also with a right not to be discriminated against on account of religion. To the extent that the preamble is taken as a preamble to the entire amendment, it could result in the right not to be discriminated against being limited to situations involving an acknowledgment of God or to situations involving religious conduct dictated by conscience. (Under the Religious Freedom Restoration Act courts were split as to whether a person's religious exercise was burdened (1) if he was prohibited from engaging in religiously motivated conduct or (2) only if he was prohibited from engaging in religiously mandated conduct.) The possibility that the nondiscrimination provisions would be limited in that way is perhaps remote, but a very minor change in the text could help protect against that possibility; the colon could be changed to a comma, and the capital "T" in the word "The" following the colon could be changed to a lower case "t." The result would be that the preamble would not then appear to be a comprehensive description of the rationale for the entire proposed amendment.
Next, the proposed amendment may be ambiguous with respect to whether a government may exercise "[t]he people's right to pray and to recognize their religious beliefs, heritage or traditions" on behalf of the people as their representative. As Professor Douglas Laycock pointed out when he testified before this subcommittee on October 20, 1995, state governments often prosecute criminal cases on behalf of their citizens under the name of "The People." I understand that the change in the language of the proposed amendment from the language contained in H.J. Res. 127 (proposed in the 104th Congress by Representative Istook) may have been designed to ensure that the people directly rather than any government would have the "right to pray and to recognize their religious beliefs, heritage or traditions." But as the CRS Memo points out, the second sentence of the proposed amendment may suggest to the contrary; the express denial to government of the power to require persons to join in prayer or religious activity or to initiate or designate school prayers may naturally be understood as a limitation on the power granted to government by the first sentence. If that is the correct interpretation of the amendment, then the amendment would seem to permit governments such wide latitude that they could even organize and run religious services. (That point was made by Professor Laycock in his October, 1995 testimony.)
I will assume the first sentence of the proposed amendment does not give government the power to organize prayer or any more power than it has at present to recognize religious beliefs, heritage or traditions. Nevertheless, the first sentence may permit or require governments to facilitate "the people" in exercising their religious rights on public property beyond what the Constitution presently permits or requires. Presently, the people are entitled to engage in religious (and other) expression in traditional and designated public forums subject only to reasonable, content-neutral time, place and manner regulations. At least that is true so long as there is no compelling state interest in regulating the expression, such as the need to avoid a violation of the Establishment Clause; as a result it is possible that religious expression in a public forum could be restricted if a reasonable observer would believe the government was endorsing the religious expression. See Capitol Square Review and Advisory Board v. Pinette, __ U.S. __, 115 S.Ct. 2440 (1995). Putting the rights of schoolchildren aside for the moment, if the government property is neither a traditional nor a designated public forum, the government need only show that its regulation of expression is reasonable and viewpoint neutral. See Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (requiring school district to make school property available for expression of religious viewpoint on topics which were otherwise permitted topics for evening meetings); Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (upholding restrictions on religious solicitation of funds within airport terminal). For example, a government need not allow demonstrations on military bases or jailhouse grounds. See Greer v. Spock, 424 U.S. 828 (1976); Adderley v. Florida, 385 U.S. 39 (1966).
It is entirely possible that the first sentence of the proposed amendment would require public property to be opened up to religious expression on a much wider basis than the First Amendment presently requires for religious or any other expression. The First Amendment does not expressly refer to public property; and the historical understanding of the right of free speech which the First Amendment protected from being abridged did not include a right to free speech on all public property. Thus it was not hard for the Supreme Court to conclude that governments could limit expressive conduct on public property other than public forums. The Court could not so easily reach that result as to religious expression under the proposed amendment, because it explicitly protects a right to engage in such expression on public property, including public schools, which are not considered public forums. While the Court likely would not require the government to permit religious anti-war services to be held on board nuclear submarines, it is possible that the Court would require a strong showing--perhaps a compelling interest--before allowing public property to be closed to religious expression. Some disruption of public functions might have to be tolerated. In addition, religious expression might be given preferential treatment over political and other forms of expression under the proposed amendment. (That would then make it necessary for the Court to distinguish between religious expression and other expression, a difficult and perhaps dangerous task.)
For example, it is not clear whether the amendment would overrule Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). In Lyng the Court held that the Free Exercise Clause did not prohibit the United States from building a logging road on government owned land which was sacred to the local Indian tribes even though the building of the road would substantially harm the Indian tribes' ability to exercise their religion. The Court held that the government's use of its own property as it saw fit did not impose a constitutionally cognizable burden on the Indian tribes' exercise of their religion. Under the proposed amendment, it is possible that the Court would hold that the government had infringed the Indian tribes' "right to pray and to recognize their religious beliefs, heritage, or traditions on public property" by building the road. Lyng has been much criticized, and perhaps it deserves to be overruled; but that should be done, if at all, consciously rather than as an unintended consequence.
It is also not clear what effect the first sentence of the proposed amendment would have on the rights of children to pray and to express themselves on religious matters in the public schools. It should at least firmly guarantee what is probably already guaranteed under the First Amendment--for example, the right to pray nondisruptively and to speak about religion with other students during noninstructional time, and the right to bring a religious viewpoint to bear during a discussion or presentation where other personal or philosophical viewpoints are permitted. Presumably the Court would not interpret the sentence so as to permit religious students to disrupt the classroom; perhaps, however, the schools might be required to allow students some time each day or each week to pray in a student-sponsored, organized fashion during class time and to "recognize their religious beliefs, heritage, or traditions" by speaking to the class about their religion. It is more likely that schools would be permitted to allow students to do so. Representative Istook's letter to Religious Freedom Amendment supporters dated July 14, 1997 states that the intent of the amendment is that student-sponsored prayer would not be banned, and that schools could accommodate such student-sponsored prayer. (Apparently such prayer could be during class time.) That would seem to be a reasonable interpretation of the first sentence of the proposed amendment, especially in light of the second sentence; the prohibitions in the second sentence against government requiring persons to join in prayer or initiating or designating school prayers make the most sense if the first sentence permits class time, voluntary, group prayer. On the other hand, similar limitations were included in the Equal Access Act [see 20 U.S.C.A. 4071(d)] as a precaution even though it, of course, was subject to the Establishment Clause; perhaps their inclusion in this proposed amendment would thus not signal a change to the Establishment Clause ban on formal, class time, group prayer.
If the change to the second sentence is made which is suggested by the July 14 letter--substituting "prescribe" for "initiate or designate"--then the implication could well be that the school could initiate and organize prayer so long as it did not prescribe the prayer to be used. The July 14 letter states that accommodation of student-sponsored prayer is the goal, but the revised language of the proposed amendment could well be interpreted to allow school sponsorship.
It does not seem that the proposed amendment would overrule Lee v. Weisman, 505 U.S. 577 (1992). In Lee a school board had invited a rabbi to give a nonsectarian prayer at a public high school graduation ceremony. The Court held that the inclusion of the prayer violated the Establishment Clause. In Lee the school board initiated the prayer, and thus the second sentence of the proposed amendment would seem to require the same result reached by the Court in Lee. It is possible that the proposed amendment would be consistent with the Fifth Circuit's decision in Jones v. Clear Creek Independent School District, 977 F.2d 963 (1992) ("Clear Creek II"); in Clear Creek II the Fifth Circuit held that a prayer could be included in the graduation ceremony without running afoul of Lee if inclusion of the prayer resulted from a vote of the graduating students. The question might be whether the students, exercising authority delegated by the school, were acting in a governmental capacity and thus prohibited from initiating school prayer. (If the change suggested by the July 14 letter were adopted, then it seems likely the amendment would overrule Lee.)
It is also not clear whether the proposed amendment would give nonstudents the right to go onto public school grounds during the school day to meet with students for prayer or other religious expression.
The second sentence of the proposed amendment restates existing law in providing that the government "shall not require any person to join in prayer or other religious activity." As noted above, in order to give some effect to this portion of the amendment, a court may determine that the first sentence gives power to the government which is limited by this language.
The provision of the second sentence to the effect that "The Government shall not . . . discriminate against religion" would presumably reinforce the first sentence in protecting private religious speech even where a reasonable observer erroneously might conclude that the government was endorsing religion. It would seem to ensure that "no arm of government may discriminate against religious speech when speech on other subjects is permitted in the same place at the same time;" that statement, roundly endorsed by Professor McConnell in his October, 1995 testimony, comes from the Seventh Circuit's opinion in Hedges v. Wauconda Community School Dist, 9 F.3d 1295 (1993). Perhaps that provision would also mean that where governments accept nonreligious reasons for granting exemptions from otherwise applicable law, governments must also accept religious reasons. This is reminiscent of the way in which Justice Scalia in Smith distinguished Sherbert v. Verner and the other unemployment compensation cases. There might well be additional effects.
Finally, the provision of the second sentence prohibiting a denial of "equal access to
benefits on account of religion" would seem to guarantee that even pervasively religious
institutions (such as elementary and secondary parochial schools) could not be denied funding
simply because of their religious character. There is a strong argument under existing authority--especially Mueller v. Allen, 463 U.S. 388 (1983)--that states may include religious schools in
general school voucher programs. Arguably they must if they include secular private schools,
but it is possible to argue that exclusion of religious schools is justified to avoid an Establishment
Clause problem. However, under the equal access to benefits provision of the proposed
amendment the result should be clear. Any voucher program including private secular schools
would need to include religious schools as well, and that could be done without violating the
Establishment Clause. It is possible that the equal access to benefits provision could mandate
that a school district issue vouchers; absent vouchers a parent who exercises the constitutional
right to have the student educated at a religious school forfeits a major public benefit--arguably
that is discrimination "on account of religion." However, that is not a likely interpretation, as
Professor Laycock noted in his October, 1995 testimony before this subcommittee. An
additional problem is how to handle the case in which a religious organization seeks public
funding for a social welfare program but then refuses to provide services on a nondiscriminatory
basis. Perhaps the legislative history to the amendment should point to the provisions adopted as
part of the welfare reform package which permit religious organizations to receive grants to
provide social services, which safeguard the autonomy and identity of the religious
organizations, but which also require nondiscriminatory treatment of those for whom the aid is
ultimately intended. In an educational setting, however, because the students help to set the tone
of the institution and help to shape its religious character, religious nondiscrimination in aid
recipients should not be required.
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