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The Istook Constitutional
Amendment on Religious Freedom

Activity during 1995 &1996

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Constitutional Amendments Allowing School Prayer:

The House of Representatives' Constitution Subcommittee held field hearings on a constitutional amendment during mid-1995. The Senate Judiciary Committee convened hearings on religious liberty in the US during the fall.

A working group was formed, consisting of a number of very conservative Christian groups: American Center for Law and Justice, Christian Coalition, Concerned Women for America, Family Research Council, Focus on the Family, Southern Baptist Convention, and the Traditional Values Coalition. They proposed a draft "Religious Equality Amendment" to the Constitution which read:

Section I: Neither the United States nor any State shall abridge the freedom of any person or group, including students in public schools, to engage in prayer or other religious expression in circumstances in which expression of a non-religious character would be permitted; nor deny benefits to or otherwise discriminate against any person or group on account of the religious character of their speech, ideas, motivations, or identity.

Section II: Nothing in the Constitution shall be construed to forbid the United States or any State to give public or ceremonial accommodation to the religious heritage, beliefs, or traditions of its people.

Section III: The exercise, by the people, of any freedoms under the First Amendment or under this Amendment shall not constitute an establishment of religion.

Three constitutional amendments were been proposed:

  1. In late 1995, Representative Henry Hyde (R-IL) brought his "religious equality" constitutional amendment to the House of Representatives (H.J. Res. 121; 1995-NOV-15) . Sen. Orrin Hatch (R-UT) introduced Hyde's proposal into the Senate (S.J. Res. 45; 1995-DEC-21). It was supported by at least three conservative Christian groups: National Association of Evangelicals, Family Research Council, and the Christian Legal Society. The text read:

    "Neither the United States nor any State shall deny benefits to or otherwise discriminate against any private person or group on account of religious expression, belief, or identity; nor shall the prohibition on laws respecting an establishment of religion be construed to require discrimination against anyone on account of their religious belief."

  2. Representative Ernest Istook (R-OK) introduced his "Religious Liberties" amendment on 1995-NOV-28. It read:

    "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."

  3. In 1996-JUL, Representative Dick Armey (R-TX) introduced a third proposal, called a "Religious Freedom Amendment". Because of a lack of consensus, opposition from moderate Republicans, concern from civil liberty groups and opposition from some religious organizations, no further action was taken.

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Istook amendment:

Many groups commented on the original Istook amendment proposal of 1995-NOV-28:

bulletOn 1995-NOV-30, Tommy P. Baer, international president of B'nai B'rith stated:"We believe in religion and we believe in the importance of prayer. What we don't believe in is government-sponsored religion expressed in public places...As a minority, we have felt the pain of being the outsider. No one -- especially school children -- should be made to feel inferior because they do not believe in the religion of the majority...For over 200 years the First Amendment has protected our freedoms. This proposed amendment would protect the rights of the majority while hurting the rights of the minority."
bulletDuring 1996-MAR, Lois Goldrich, Director of Public Affairs for the United Synagogue of Conservative Judaism issued a Position Paper which quoted various of their officials as saying, in part:"These amendments represent a sweeping attempt to rewrite the religion clauses of the First Amendment and constitute an encroachment on the principle of church-state separation. If passed, they would amend the Bill of Rights for the first time in history... the amendment would in fact require that the government fund religious and secular activities equally."
bulletThe 1996-MAY/JUN "Washington Memo" of the Mennonite Central Committee was authored by Karl S. Shelly and titled: "How Government Promotion of Religion Can Undermine Religious Liberty". He stated, in part: "Religious freedom has flourished in the United States in large part because of the Constitution's First Amendment... Mennonites, as a minority denomination with some unpopular beliefs, have particularly benefited from this..."

In early 1997, the proposed Istook amendment was re-worded to read:

"To secure the people's right to acknowledge God: The right to pray or acknowledge religious belief, heritage or tradition on public property, including public schools, shall not be infringed. The government shall not compel joining in prayer, initiate or compose school prayers, discriminate against or deny a benefit on account of religion.

The Christian Coalition and some other conservative Christian groups supported the amendment. During the week of 1997-MAR-2, Rep. Istook visited the National Association of Evangelicals at their Orlando convention in an effort to seek their support. He had a letter of support from Speaker of the House, Newt Gingrich. But the NAE initially rejected his request. Forest Montgomery, the Association's counsel declared: "According to my faith, there is no way I can love my neighbor and support majoritarian legislation that requires Jewish kids to recite Christian prayers....It is wrong, legally and theologically."

The Christian Legal Society is a Washington DC based group of conservative Christian lawyers. Their spokesperson, Steven McFarland, said: "The Istook amendment has sex appeal, and for those with a soundbite mentality, a roll-call vote on God sounds great...But do we really want to let government choose a favorite religion? When Caesar gets into the business of doing anything for religion, it prostitutes the faith, it co-opts the church. No thank you." He predicted that if Southern Baptists and other Evangelicals oppose the amendment while the Christian Coalition and other Christian groups promote it, then "it's going to get ugly."

Rep. Istook held a news conference on 1997-MAR-24. He indicated that he planed to introduce a bill proposing a amendment after Congress returns from its 1997 Easter recess. He said that the purpose of the amendment "is to restore the protection of our precious religious freedoms and liberties, which have been eroded by a steady onslaught of court decisions, especially during the past 35 years." Rep. Istook highlighted a report by the Office of Public Affairs of The Rutherford Institute which is critical of President Clinton's directive on school prayer. (The Rutherford Institute is a Christian legal group that defends what it believes to be infringements on freedom of religion). He was accompanied by Ellen Pearson and her daughter Audrey. 9 years ago, Audrey was prohibited from reading her Bible during 90 minute school bus trips to and from her public school in Dumfries VA. Her principal said that the separation of church and state required him to ban reading of the Bible on school property. The principal was clearly wrong in his belief. In fact, the US Supreme Court has ruled that students have religious freedom on school property - including on the school bus. The Rutherford Institute successfully intervened on behalf of the child and her parents and gave a short course in constitutional law to the principal. Children have the clear right to read their Bibles (or any other religious texts) on school property during private time. The principal withdrew his ban when he was informed of the reality of the law. It could be argued that this incident is a good indicator that the US has no need for a constitutional amendment; existing law is quite adequate to handle almost any situation.

His press conference raised some voices in protest:

bulletMark Pelavin of the Religious Action Center of Reform Judaism said that a new amendment "is unnecessary because we already have a religious freedom amendment. It is called the First Amendment."
bulletRev. J. Brent Walker of the Baptist Joint Committee said: "To the extent that our laws have not worked well or have been misapplied or misconstrued the answer is education, not more legislation...We don't need more laws on the books. If it ain't broke, you don't fix it."
bulleta letter sent to the Cleveland Plain Dealer questioned whether an amendment might give suicide cults like Heaven's Gate more access to influence children in the schools.
bulletThe Rev. Barry W. Lynn, director of Americans United for Separation of Church said: "This amendment will give government officials power to run roughshod over the rights of religious minorities. It is a sham based on the false pretense that religious freedom is in jeopardy in America. This amendment will not increase free speech or make us a more reverent nation...I don't want politicians and TV preachers telling my children and me when and how to pray, and I don't think most other Americans want that either...Americans today enjoy more religious freedom than any people in world history. We can't let a few misguided politicians put that accomplishment at risk."
bulletOn 1997-MAR-24, Rev. Dr. Albert Pennybacker of The Interfaith Alliance said during a press conference: "the right to private personal prayer anywhere is protected...Let us avoid ill-conceived new formulas which will enable the religious purposes and sensibilities of one part of our society to coerce all the rest of us."
bulletOn 1997-MAY-8, the People For the American Way Action Fund issued a press release. President Carole Shields said that the amendment would allow the government to advance one religion over another. She called it a "Christian Nation" amendment, rather than a "Religious Freedom" amendment. She warned that supporters of the amendment talk about religious freedom, but "in reality they want to impose their brand of Christianity on other Christians and non-Christians alike."

Continue with information from 1997

Related essays:

bulletWhat the Bible says about public prayer
bulletSeparation of church and state issues
bulletRecent U.S. court rulings on separation of church and state
bulletOrganizations dealing with separation issues

Copyright © 1995 to 2001 by Ontario Consultants on Religious Tolerance
Latest update: 2001-NOV-9

Author: B.A. Robinson

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