The Establishment Clause Assault

Holly Hollman March/April 1999 The Bell and McCord children were verbally assaulted at the school, not just by students, but by the faculty as well. Upside-down crosses were taped to their schoolbooks and lockers. The McCords' family pet, a prizewinning goat, had its throat slit. The parents were "publicly vilified" at a school board meeting. Both families received anonymous threatening phone calls at home. Joanne Bell, who went to the school to check on her children, was attacked by a school employee who bashed her head against a car door and threatened to kill her. Later, when she was attending her son's football game, her house burned to the ground. Though police suspected arson, no one was arrested.

These events occurred, not in some distant nation in another era, but in Oklahoma in the 1990s--all because these two families dared to challenge a public school for holding religious meetings during classtime.

Religious meetings in public school during classtime? In America's exceedingly pluralistic society, it's hard to image a more volatile recipe for religious strife. Yet this recipe is precisely what the House of Representatives cooked up on June 5, 1998, with the so-called Religious Freedom Amendment, proposed by Congressman Ernest Istook of Oklahoma and 150 fellow House members. Though the bill died in the House, the mere fact that it made it out of committee to the floor should warn Americans that their religious freedoms are still under assault, even by those who swear an oath to protect them.

Though brief and wellcrafted, the Istook amendment would have radically altered the nature of religious freedom in America. In its final form, the one defeated, the bill read: "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, proscribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion."

On March 10, 1998, speaking from the floor of the House of Representatives, Istook stated, "In 1962 the Supreme Court said it did not matter if prayer was voluntary; students could not come together and pray together as they had since the founding of the republic." This amendment would "correct the problems that have been caused by federal courts over the last 30 years and would allow students to pray in schools or even invite a teacher to occasionally offer a prayer."

The 1962 Supreme Court decision referred to was Engel v. Vitale, in which the Court ruled that it is not the government's business to compose official prayers for any group of the American people. "When the power, prestige, and financial support of government is placed behind a particular religious belief," wrote Justice Hugo Black for the Court, "the indirect coercive pressures upon religious minorities to conform to the prevailing officially approved religion is plain."

What's ironic about the proposed bill is that there was never a need for it. Even without the amendment, students have the opportunity and the right to pray whenever they want, either individually or in groups, at school. They may even discuss their religious views with other students as long as this activity is not disruptive. Students also can read their Bibles, say grace before meals, and pray before tests. Praying may be silent or out loud, as long as it does not disrupt. The limitations apply only to situations in which a student or teacher proselytizes a captive audience or "compels" other students to participate in any kind of religious activity--a limitation that would have been severely curtailed had this dangerous amendment passed.

While the proposed amendment would not have allowed the government or schools to initiate school prayers, it would have allowed students before captive audiences--even over the intercom- to do so. Once that happens, a number of questions arise: What will the content of the prayer be? Who gets to choose the prayer? What happens to those students who find the prayers offensive or against their own religious beliefs? What happens to those who do not--for whatever reason--wish to take part in the prayer? Will a student of a minority religion get equal time to pray to the God of his or her religion? Will Muslim students be allowed to offer a prayer to Allah over the intercom? Will Jews be forced to attend worships in which Jesus is mentioned? Can Buddhist students offer prayers over the intercom? How about Jehovah's Witnesses, or Christian Scientists, or Mormons?

People forget the power of peer pressure. Students and whole groups would be subject to teasing or alienation for having beliefs different from their classmates. Speaking on behalf of the Religious Action Center of Reform Judaism, Mark J. Pelavin warned that "religious minorities in particular will suffer because it is nearly impossible for a student who wishes not to participate to feel comfortable leaving the classroom without feeling embarrassed or intimidated by his or her classmates, teachers, or school officials."

The bill's guarantee that no person shall be required to "join in school prayer or other religious activity" was no protection either. In numerous rulings the Supreme Court has said that merely pressuring a person, especially a child, to partake of, or even be exposed to, forms of worship that offend them is an establishment of religion. That a Muslim child isn't forced to pray to Jesus or to sing hymns honoring the Trinity, but is merely required--by law--to listen while the rest of the class does, isn't religious freedom.

Nor is excusing the kids from the exercises an answer. As a New York Times editorial in 1962 said regarding Engel, the archetypical school prayer case: "The establishment clause is a keystone of American liberty: and if there is one thing that the establishment clause must mean, it is that government may not set up a religious norm from which one has to be excused--as was the case with the children in the New York school who did not wish to recite the prayer," and which also would be the case if the Religious Equality Amendment had been passed.

Besides impacting religious behavior in school, the amendment would have also opened the door for sectarian prayer and the display of religious artifacts in courtrooms and other government buildings. It would permit Alabama judge Roy Moore to continue to display his hand-carved representation of the Ten Commandments and allow him to open each day's court session with a prayer by a Christian minister.

"It is time," Istook stated, "to reaffirm Americans' right to religious expression on public property."

According to Jamin Raskin, constitutional law professor at American University's Washington College of Law, these changes would "completely neutralize the Establishment Clause of the Constitution." The Establishment Clause, embodied by the Constitutional framers in the First Amendment, states, in part, "Congress shall make no law respecting an establishment of religion. . . ." The 200-year tenure of this principle--which has permitted the traditions of religious pluralism and tolerance to flourish in this country sheltering those seeking relief from religious persecution, coercion, and intolerance--would, under the Istook amendment, have effectively been snuffed out.

The vague language of Istook's amendment left other questions unanswered. Who would lead prayer, and what belief would this person have to have in order to give it? Who draws the line, and where will it be drawn on who gets to decide what religious symbol may be displayed where? This newfound right could also invite religious jealousies and aggressions between groups madly scrambling for the chance to expose their own religious artifacts in government buildings.

Included in the mandate of the amendment was that government shall not "deny equal access to a benefit on account of religion." This language has been interpreted by legal experts to mean that private religious schools could not be denied taxpayer funding simply because they are sectarian in nature. Rep. Henry Hyde (R-Ill) chair of the House Judiciary Committee, stated that the purpose of the amendment was "to recognize the fact that where freedom of religion is to exist, religious schools are to be treated the same as secular schools are treated. . . . You can't discriminate against a school because it's religious."

Why not? The whole purpose of keeping tax money out of the hands of religions was to ensure that people don't work to support religious faiths that they don't agree with. On a more mundane level, Rep. Robert Scott (D-Va.) asked, "What happens when the Catholics must compete with the Baptists for limited school funding? How much better off will churches be once they become dependent on government funding?"

Also, who would have determined how the government funds are divided? Do the Wiccans, Satanists, and right-wing racist separatist religions get a piece of the pie too? What limitations will be placed on these funds?

Government funding for religion and related activities sooner or later entangles church-state relationships and inevitably weakens church autonomy. The inevitable result of this money means restrictions--on how to manage the money, accounting, monitoring, even sanctions when the money is perceived to be used improperly. Soon churches will come to rely on these funds, creating dependence problems. The government admittedly cannot fund all religious groups. Who gets a share, and who is discriminated against?

Fortunately these questions, though still relevant and manifested in a host of other church-state debates, went off the the frontburner along with Istook's amendment. Despite intense lobbying on both sides (the Christian Coalition, strong supporters of the bill since its infancy, expended $500,000 in a last-minute campaign), the numbers 224 for and 203 against narrowly missed the two thirds necessary to carry the House.

The important question needed to be asked here is this:
What does it say about the fragility of the Establishment Clause when more than half the members of Congress voted for a bill that would effectively have destroyed the clause? It says a lot.

For now, the Establishment Clause remains intact. But Istook's amendment was just one salvo in the fight that shows no promise of ending soon. Ralph Reed, then executive director of the Christian Coalition, stated, "This we can pledge: We will stay in this battle, and we will keep coming back, not only for this Congress, but in every subsequent Congress until an amendment is passed and sent to the states for ratification. . . . We are confident that we will begin to move the ball forward in this session and that ultimately we will see victory."

Americans who care about protecting their freedoms better pray he's wrong. Justice Black, speaking for the High Court, wrote that "the First Amendment was written to stand as a guarantee. . . people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office." Those who won our freedom recognized the occasional tyrannies of governing majorities and amended the Constitution so that religious freedom was withdrawn, as much as possible, from majoritarian despotism.

The prosperity, the vitality, and the growth of faith in America--by far the most religious nation in the industrialized West--didn't happen by chance, but because this country has taken seriously the idea that religion is too sacred, too important, too fundamental to be promulgated and promoted by, of all things, the government. Despite the problems, the flaws, the paradoxes and exceptions, the principle has, indeed, worked well for Americans.

Nevertheless, more than half of the most recent Congress voted for an amendment that, if placed in the U.S. Constitution, would have undone it all. And if that fact doesn't frighten most Americans, it no doubt would have frightened Joanne Bell . . . especially as she stood in the ashes of her home.

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Article Author: Holly Hollman

Holly Hollman serves as general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty, where she provides legal analysis on church-state issues that arise before Congress, the courts, and administrative agencies. She is a member of the U.S. Supreme Court, D.C. and Tennessee bars.