The Religious Liberties Amendment:

Treating the Symptom, Avoiding the Problem

(March 30, 1997)

Oklahoma, which ranks 27th in population among the 50 United States, is currently producing far more than its share of prominent congressman. In just their first terms in Washington, the Touchdown Twins, i.e. former Seattle Seahawks wide receiver Steve Largent and former Oklahoma University quarterback J.C. Watts, established themselves as respected social and religious conservatives.

A third outspoken Sooner Republican, Rep. Ernest Istook, is making a name for himself as the chief sponsor of the proposed Religious Liberties Amendment to the United States Constitution. The proposed amendment has been berated by liberals as a thinly veiled "school prayer amendment", and thus deserving of opposition. Yes, the amendment should be opposed, but for an entirely different set of reasons.

The popularity of the proposed amendment represents a philosophical flaw which is too common among contemporary Christians and conservatives. Although both groups condemn the modern superstate, they seem quite content with it. Oh sure, they talk a good game about the ineptitude of government and about their loyalty to the Constitution. But, at best, their elected representatives tweak around a bit with a few peripheral issues, while, at the end of the day, leaving the monolith intact and imperceptibly smaller than if their unabashedly statist opponents had remained in power.

The proposed Amendment reads as follows: "To secure the people's right to acknowledge God according to the dictates of conscience: Nothing in this Constitution shall prohibit acknowledgments of the religious heritage, beliefs, or traditions of the people, or prohibit student-sponsored prayer in public schools. Neither the United States nor any State shall compose any official prayer or compel joining in prayer, or discriminate against religious expression or belief." (The proposed Amendment was rewritten after this essay was posted. Please click here to see new text.)

No one denies that America's traditional religious liberties (and especially those of Christians) are under attack. At least once a month, we hear of some new instance in which someone is prosecuted for innocuously expressing their beliefs. We here how courts stop Christian high school students from meeting on school grounds to pray and study the Bible; how courts forbid any mention of God in benedictions at public school graduations is; how IRS employees are told to remove any possible offensive material from public display on their desks (the directive includes both pornographic and religious items as offensive); how a fifth-grade girl is told that she cannot read her Bible on the school bus; how judges order the Ten Commandments removed from courtroom walls because the Sixth Commandment may unduly influence jurors in murder trials, etc.....

Mr. Istook states that "Only a constitutional amendment can restore the liberties eroded by court decisions."

Actually, no such amendment is necessary. What is needed is for our representatives to read the Constitution and start adhering to it. Courts would then become very limited in their ability to trample on our liberties. How would this happen?

To begin with, we have three branches of government for a reason: to keep any one of these branches from becoming too powerful. Article II, Section II of the Constitution empowers the President to appoint judges with the "advice and consent" of the Senate. The Senate is under no obligation to rubber stamp judicial appointees, especially those of a president with whom they purport to disagree profoundly. Yet the Republican majority in Washington has put up no opposition to Bill Clinton's judicial appointees. (Senator Bob Dole, for example, voted to confirm 98 percent of these appointees.)

The House of Representatives can exercise very significant power in relation to the Judicial Branch. Article III, Section II of the Constitution spells out specific areas in which the Supreme Court has jurisdiction, and allows Congress to make exceptions and regulations as to where the Supreme Court can exercise authority. Congress could, for instance, pass a law limiting the authority of federal courts in ruling in the area of education. Also, Article I, Section VIII empowers Congress to make laws limiting the activity of lower federal courts.

So many separation cases arise in the area of education, an area in which the Constitution grants the federal government no authority. If Congress were true to its constitutional mandate, it would get Uncle Sam entirely out of education, thereby eliminating the possibility for any judicial overreaching in education. The "student-sponsored prayer" clause of the proposed amendment will expand federal authority by explicitly placing Uncle Sam squarely into education.

The concept of a fully informed jury is difficult to explain in 25 words or less, but I will give it the old college try: it says that juries have the power to judge both the facts and the law pertaining to a case. If they feel a defendant is guilty of violating a law which is unjust to begin with, they may thereby acquit the defendant. The Fugitive Slave Laws were hard to enforce because it was very difficult to find 12 people who would so much as sit on a jury in a case pertaining such a law. Imagine if, today, we had similar difficulty finding 12 people to sit on juries pertaining to some of the church-state cases against which Christians and conservatives so rightfully inveigh.

The amendment which Mr. Istook proposes would do nothing to dismantle the federal monolith which has put religious freedom in such jeopardy. It says nothing about ending federal intrusion in education, challenging the appointment of liberal judges by liberal presidents, or limiting the scope of federal judicial authority. If education were in private hands, there would be far more prayer in school, but no one would be forced to attend or subsidize a particular school.

American's religious freedoms are already adequately guaranteed in the "free exercise" clause of the First Amendment. What America needs now is not another amendment, but rather elected representatives who understand the entire Constitution, and who will act upon it in order to restore genuine religious freedom for all. If this means finding an entirely new batch of congressmen and senators, so be it.

Revised Text of the Proposed Amendment

"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."

*This is the text of the Religious Freedom Amendment, as modified and approved by the House Judiciary Committee's Subcommittee on the Constitution (October 28, 1997), and so differs slightly from the text of HJR 78 as originally introduced.

Freely Speaking: Essays by Doug Newman

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