WASHINGTON (BP)–Supporters and opponents of the Religious Freedom Amendment sparred over the meaning and effects of the proposal in a congressional hearing July 22.
Rep. Ernest Istook, R.-Okla., and others defended his constitutional amendment against criticisms from some members of the Constitution Subcommittee of the House of Representatives Judiciary Committee and some witnesses during the four-and-one-half-hour session.
The Religious Freedom Amendment, House Joint Resolution 78, says:
“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, prescribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.”
The Southern Baptist Ethics and Religious Liberty Commission endorsed the proposal in April after changes were made in an earlier Istook version it refused to support. Nearly all national evangelical and pro-family organizations back the amendment. It has more than 140 House cosponsors.
Supporters are seeking an amendment because Supreme Court and federal court rulings the last 35 years “have left us no other choice,” Istook told the panel.
In explaining each phrase of the amendment, Istook said “according to the dictates of conscience” is the “first of multiple protections” to safeguard the rights of religious minorities.
RFA does not “go beyond recognizing religious belief, heritage or tradition, and avoids becoming the promoting of any religion. It does not repeal the establishment clause of the First Amendment, but it interacts with it to restore the former balance between” the establishment and free-exercise clauses, Istook said.
Democratic members of the subcommittee and some witnesses, however, charged the proposal would harm religious liberty.
Rep. Walter Capps, D.-Calif., called RFA a “sectarian document” that is unnecessary.
Derek Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor University, expressed fear it would hurt minority religions and drive a “wedge between non-Christians and their government.”
Concerned Women for America special legal counsel Craig Parshall, however, said the courts in the last 50 years had forced the free exercise of religion “into the confines of a legalistic iron lung, constructed of bad history and secularistic presumptions.”
The First Amendment “has wrongly been interpreted to create a right not to be” confronted by spiritual ideas a person does not like, Parshall said. “It is the most perverse example of what First Amendment scholars usually call the ‘heckler’s veto.'”
Mark Scarberry, a law professor at Pepperdine University, said an amendment probably is needed to protect religious expression, because “many administrators, bureaucrats and lower-court judges fail to do so, despite the best efforts of many groups to educate them.” He expressed fear, however, the Istook proposal is a school prayer amendment, which he called unwise.
Much of the questioning of the opening panel of witnesses — which included Istook, two other House supporters and two House opponents of RFA — focused on specific applications of the amendment.
The subcommittee chairman, Rep. Charles Canady, R.-Fla., expressed some concern about the language, even though he acknowledged government often is hostile toward religious expression and even though he is a conservative evangelical.
Istook had said earlier “people” refers to citizens individually and collectively. Under questioning by Canady, the Oklahoma representative and two lawyers supporting RFA said the amendment would allow government to pay for a nativity scene or menorah to be displayed on public property during December. In response to a Canady question, Istook also said “recognize” was substituted in April for “acknowledge” in the amendment because it is used more commonly.
Government “is going to pay for the expression of one faith but not for the expression of others,” Canady told Istook. “When you’re talking about the people collectively, I think you’re talking about government.
“I don’t normally recognize my own belief. If you mean by recognize something as broad as acknowledge and if the people here can be equated with government, that concerns me a little bit.”
Rep. Robert Scott, D.-Va., asked Istook if, under his amendment, a Satanist would have a right to display a symbol where others were permitted.
That would be a decision for the locality, Istook said.
“I think what you’ll find is the frequency of uses of different symbols would tend to reflect the frequency with which it occurs in the population,” Istook said.
Rep. Jerrold Nadler, D.-N.Y., charged in a classroom setting the “majority may force the minority either to participate in a prayer” or to leave the room.
“The amendment has nothing that compels anyone to join a prayer,” he said. “Some people have the notion that if you don’t like what somebody else is saying you have” to protest in some form.
Rep. Sanford Bishop, D.-Ga., testified in behalf of the amendment but said he would be willing to change the opening clause to say to “secure the people’s right to freedom of religion” and to delete the last clause, “deny equal access to a benefit on account of religion.”
Istook has expressed hopes for a vote on the House floor this fall.
In addition to the ERLC and CWA, other supporters of RFA are the Christian Coalition, National Association of Evangelicals, Focus on the Family, American Center for Law and Justice and Family Research Council.
Opponents include the Baptist Joint Committee on Public Affairs, the National Council of Churches, People for the American Way and Americans United for Separation of Church and State.
