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House subcommittee approves Religious Freedom Amendment

WASHINGTON (BP)–A House of Representatives subcommittee finally approved the Religious Freedom Amendment Oct. 28, more than two years after a floor vote on such a measure was to have occurred, according to a promise from Speaker of the House Newt Gingrich.
The Judiciary Committee’s Constitution Subcommittee sent House Joint Resolution 78 forward by an 8-4 vote along party lines, with Republicans in the majority. A vote by the full committee appears unlikely before adjournment, which may be as early as Nov. 7. A vote on the House floor is not expected before next spring.
The path to subcommittee action has been a torturous one. Even before the 1994 election, Rep. Gingrich, R.-Ga., said if the GOP took over the House there would be a vote on a school prayer amendment by July 4 of the following year.
Negotiations on the language of such a measure proved complex, dragging out the process. In late 1995, two versions were introduced, one by Rep. Henry Hyde, R.-Ill., and another by Rep. Ernest Istook, R.-Okla. Neither moved forward. An amendment attempted as a compromise by Rep. Dick Armey, R.-Texas, in 1996 also failed to progress.
When a new session began early this year, Hyde chose not to reintroduce his version. Istook gained even more support among pro-amendment organizations when he made changes in the spring that brought the support of the Southern Baptist Ethics & Religious Liberty Commission, the National Association of Evangelicals and Traditional Values Coalition. All three previously had supported Hyde’s version.
The version approved by the subcommittee contains amendments of the Istook proposal originally introduced this year. The new version reads:
“To secure the people’s right to acknowledge God according to the dictates of conscience: Neither the United States nor any state shall establish any official religion, but the people’s right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. Neither the United States nor any state shall 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 substitute, offered by Rep. Asa Hutchinson, R.-Ark., makes the following changes:
— The phrase that concludes with “any official religion” is new;
— The “United States nor any state” is substituted for “government” in the final sentence;
— “Prescribe” replaces “initiate or designate” in the last sentence.
Istook said afterward the changes provide “some safeguards that we knew were already there but … make them even clearer to people. And I think the fact that we’re showing people that we’re very sensitive to concerns, that we’re heeding those concerns and answering them is going to help us continue to expand the support for the amendment.”
The amendment has nearly 150 cosponsors.
Will Dodson, the ERLC’s director of public policy, said, “I think that the changes to the wording of the amendment clarify the concerns of many. It has been suggested that the Religious Freedom Amendment was an attempt to revoke the establishment clause. Adding language to the effect that the establishment clause does fully apply (by prohibiting establishment of an ‘official religion’) makes it clear that this amendment is an attempt not to change the First Amendment but to correct Supreme Court misinterpretations of the First Amendment.”
Opponents of the measure found no consolation in the new version.
“I don’t think it causes us to look any more favorably on the amendment,” said Brent Walker, general counsel of the Baptist Joint Committee on Public Affairs. “I think that if anything the amendments made it more problematic.”
The part “about establishing any official religion puts sort of a false limit on what can be done,” Walker said.
The BJCPA, as well as organizations such as People for the American Way and Americans United for Separation of Church and State, have expressed opposition to any religious liberty amendment.
Some opponents, including some subcommittee members, have charged the RFA will destroy the First Amendment. In the subcommittee mark-up, Rep. Jerrold Nadler, D.-N.Y., called it “one of the most pernicious suggested amendments in the history of the republic.”
Subcommittee chairman Charles Canady, R.-Fla., who endorsed the Hyde approach in the last session of Congress, denied such assertions and supported Hutchinson’s substitute.
“The First Amendment, as written, needs no improvement,” Canady said during the mark-up. “The First Amendment, as interpreted by the courts, including the U.S. Supreme Court, has strayed both with respect to the meaning of the establishment clause and the free-exercise clause, and the relationship between the two.
“This is not about going back to the days when everyone stood up and said the Lord’s Prayer. I don’t support that,” Canady said.
During the debate-filled, three-hour session, seven amendments of the Hutchinson substitute were offered by Democratic opponents. All failed.
In addition to the ERLC, NAE and TVC, other RFA supporters are the Christian Coalition, Concerned Women for America, Focus on the Family, American Center for Law and Justice, Family Research Council and the General Council of the Assemblies of God.
The board of Christian Legal Society recently affirmed its organization’s decision not to support the amendment.