"Hyde, a long-time ally of the Roman Catholic hierarchy, may also be able to call on the [Roman] Catholic bishops for backing. Although the U.S. [Roman] Catholic Conference has not yet issued a formal statement on the Hyde plan, the tax aid provision is likely to be attractive to the [Roman Catholic] church's leadership, which has pursued government subsidies for parochial schools for many years."

Subj: Hyde & Istook AmendmentsTo: All

From: David Bloomberg Date: 1/16/96

Double Trouble: Two Religious Right-Sponsored Constitutional Amendments Seek To Obliterate The Wall Of Separation Between Church And State

Church & State Magazine

January 1996

by Rob Boston

The Religious Right's long-expected assault on the First Amendment began in earnest in late November with the introduction of two constitutional amendments designed to erase the principle of church-state separation from the Constitution.

Though not completely unanticipated, the double-barrelled approach was a bit of a surprise. For more than a year, representatives from Religious Right groups have been meeting with congressional allies behind closed doors to draft a substitute for the First Amendment. The groups had hoped to coalesce behind one proposal, but last fall rumors began circulating in Washington, D.C., that a split had developed over what type of amendment to put forth.

As a result, the organizations parted company, producing two amendments that, while differing in their approach, share a common goal of rewriting the First Amendment's religious liberty clauses and closing the gap between religion and government.

Full implications of the Religious Right cleft and how it will affect each amendment's progress in Congress remain to be seen. Several leading Religious Right groups are backing one amendment. That proposal, dubbed the "Religious Equality Amendment," was introduced by Rep. Henry Hyde (R-Ill.) with no fanfare near the end of the day Nov. 15.

H.J. Res. 121 reads:

Less than a week later, the rival proposal, sponsored by Rep. Ernest Istook (R-Okla.), was unveiled at a press conference outside of the U.S. Capitol. Istook calls his measure a "Religious Liberties Amendment."

H.J. Res. 127 reads:

Although the proposals share some features, important differences exist between the two. The Hyde version stresses funding issues, mandating that every time the government gives money to programs and activities run by secular groups, it must also fund those sponsored by religious groups. It would, for example, require government at all levels to give tax money to parochial schools and other church-run projects, establishing a new broad principle of taxpayer-supported religion.

Istook's amendment focuses primarily on school prayer. It would permit local communities to decide what types of religious exercises to sponsor in public schools. Vocal classroom prayer, Bible reading and other devotions could occur daily as long as the prayers used are not written by government agencies.

Istook told reporters at a Nov. 21 news conference that he could not support Hyde's amendment because it does not deal explicitly with the school prayer issue. Calling Hyde's proposal "inadequate," the two-term Oklahoma Republican expressed confidence that his own amendment will eventually become the leading proposal. It currently has 101 co-sponsors in the House.

Many Religious Right groups, however, look at Istook's measure with skepticism. At the press conference, he managed to muster representatives from mostly second-tier organizations, including Christian nation advocate David Barton of Rebuilders (formerly WallBuilders) and Bill Murray, the son of atheist Madalyn Murray O'Hair, who filed one of the early cases challenging official prayer and Bible reading in public schools. (Murray, now a Christian evangelist, renounced his mother's views years ago.) To date, the only major Religious Right organization endorsing Istook's proposal is Concerned Women for America.

Other Religious Right groups, including the National Association of Evangelicals, the Christian Legal Society, James Dobson's Focus on the Family and its Washington arm, the Family Research Council, have thrown their support to Hyde.

Hyde, a long-time ally of the Roman Catholic hierarchy, may also be able to call on the Catholic bishops for backing. Although the U.S. Catholic Conference has not yet issued a formal statement on the Hyde plan, the tax aid provision is likely to be attractive to the church's leadership, which has pursued government subsidies for parochial schools for many years.

Despite the disagreements in the anti-separationist camp, both amendments are expected to see movement in the House this year. Hearings are being planned for late January or early February in the House Judiciary Committee's Subcommittee on the Constitution, chaired by Rep. Charles Canady (R-Fla.).

That has advocates of church-state separation worried. Both proposals are dangerous, say officials at Americans United for Separation of Church and State. According to AU, both would overturn decades of Supreme Court rulings upholding religious freedom and fundamentally alter the way religion and government interact in the United States.

Continued Lynn, "Severe repercussions would result should either of these amendments become part of the Constitution. Parents would lose control of the religious upbringing of their own children, and Americans would no longer have the right to contribute only to the religious groups of their choice. Instead, they would have to support a daunting array of sectarian groups, including organizations with which they may profoundly disagree."

Lynn said the Hyde amendment has the potential to wreak havoc with the country's budget. There is simply no way, he said, that the government can fund every religious group that wants handouts. The result, the civil liberties activist said, would be increased taxes, an exploding deficit or both.

"It is ironic," said Lynn, "that a proposal like this, which would in essence create a huge new program of government welfare for churches and other religious groups, is being put forth at a time when Congress is intent on balancing the budget.

Americans United Legal Director Steven K. Green notes that the Hyde amendment would overturn at least 18 major church-state cases stretching back to 1948. Istook's proposal, he said, would wipe at least 23 decisions off of the law books. Both amendments, he asserts, would spell the end of the school prayer rulings of the 1960s and all high court rulings striking down taxpayer subsidies for parochial schools.

In a memo prepared for the Americans United staff, Green notes, "These proposed amendments of the church-state provisions of the U.S. Constitution will gut the meaning of church-state separation, undo a half-century of Court precedent and threaten the integrity of the entire First Amendment."

Amendments that would alter the nation's church-state relationship have been a staple in Congress for many years. Ever since the Supreme Court ruling declaring school-sponsored prayer unconstitutional in 1962, anti- separationist religious groups have been pressing for an amendment. The movement peaks and wanes in strength, but no amendment has faced a floor vote in either chamber since 1982.

That changed in November of 1994 when the Republicans took control of Congress. Several members, beholden to sectarian pressure groups like the Christian Coalition, promised action on some type of religion amendment.

Even before he became House speaker, Rep. Newt Gingrich (R-Ga.) promised to bring a school prayer amendment to a vote in the House. Gingrich, who originally hoped to have action by the Fourth of July 1995, subsequently turned the project over to Istook.

Religious Right groups, eager to take Gingrich up on his promise, began meeting regularly in Washington to draft an amendment. The groups decided that a school prayer amendment would not go far enough and began demanding enactment of a sweeping "Religious Equality Amendment" that would overturn most of the high court's church-state decisions.

Although Gingrich's Independence Day deadline came and went without a vote, last summer the House Judiciary Committee's Subcommittee on the Constitution did hold a series of field hearings around the country on "religious liberty." The hearings were intended to be a vehicle for Religious Right groups to denounce church-state separation and religiously neutral public education, but Americans United and other separationist groups managed to derail the plan. Pro-First Amendment activists packed several of the events, and some managed to speak against rewriting the Bill of Rights. (As a result, the final field hearing, scheduled for Los Angeles, was cancelled.)

As the year began drawing to a close, the Religious Right's effort to present a united front on the issue collapsed. Even the largest and most powerful Religious Right group, the Christian Coalition, appears uncertain about what approach to take. Last May, when the Christian Coalition unveiled its "Contract with the American Family" in Washington, CC Executive Director Ralph Reed called enactment of a "Religious Equality Amendment" the group's number one priority. But as of last month, the organization, founded by television evangelist Pat Robertson, could not decide which amendment to back.

"At this point, we're working with both of the authors on individual issues," Brian Lopina, CC director of government affairs, told the Washington newspaper The Hill. Lopina did indicate some preference for the Istook version, saying, "It would be nice to have the word 'prayer' in there since it's been known as that from the beginning."

A second Robertson-founded organization, the American Center for Law and Justice (ACLJ), also has taken a low-key stance. Although the ACLJ was one of the original organizations that met in Washington as part of the Religious Right umbrella group, it hasn't thrown its weight officially behind either version yet.

The ACLJ and other Religious Right organizations say their proposals are designed to end "discrimination" against religious groups and people in American society. They assert that this alleged discrimination is widespread and insist that only a constitutional amendment can correct it.

Opponents of the amendment, including most mainstream religious denominations, dispute those claims. The Coalition to Preserve Religious Liberty, which represents some 50 religious, education and civil liberties organizations (including Americans United), wrote each member of Congress Nov. 16 to express support for the First Amendment.

Charging that the Hyde proposal would "perform radical surgery on the First Amendment," the coalition said, "The amendment is unnecessary. The First Amendment, the Religious Freedom Restoration Act, and the Equal Access Act already protect religious exercise. Prayer has not been kicked out of the public schools and religion has not been banished from the public square.

Church-state experts note that American citizens enjoy a level of religious liberty unparalleled throughout the world and say that what the Religious Right means by "discrimination" is really the government's refusal to give money to or promote religious groups and sectarian ideas.

These critics also contend that the Religious Right's effort to change the First Amendment, if successful, would foster majoritarianism in religious matters. Istook, for example, has been upfront about his belief that every community should be able to decide for itself what type of religious expression it will have in public schools. The matter, he has said, should come down to a majority vote.

During Istook's press conference last November, a reporter asked him what would happen in a community if 51 percent of the students voted to have prayers and 49 percent voted the other way. Istook refused to answer the question, saying that type of close vote would never happen because most Americans favor prayer in schools.

Istook was also asked about incidents from the 19th century when Roman Catholics and Protestants battled over prayer in schools. (In some northeastern cities, tensions got so high that violence erupted.) Remarked Istook, "It's ridiculous to suggest that people will turn to violence in the name of religion," a comment that sparked gales of laughter from the crowd observing the event. "What about Bosnia?" one observer quipped.

Two other House Republicans, Zach Wamp of Tennessee and Gerald Solomon of New York, joined Istook at the event. Wamp blithely dismissed the concerns of religious minorities who may be forced to participate in devotional exercises foreign to them in public schools. "We don't have to tolerate the actions of people just because we tolerate the people," he said. The First Amendment, Wamp asserted, guarantees "freedom of religion not freedom from religion."

Solomon, chairman of the powerful Rules Committee, promised to see that the Istook amendment moves promptly through Congress. He blamed the "breakdown of the American family" on the Supreme Court's school prayer rulings and said, "Our country may yet survive because of this effort today."

Also in attendance was former California congressman William Dannemeyer, who now heads a group called Americans for Voluntary School Prayer. Dannemeyer, an ultra-conservative Republican, was a frequent booster of school prayer amendments during his years in the House.

By contrast, Hyde's amendment was introduced in the House with no formal press announcement, in an apparent bid to get it out of the gate before Istook's version and foster the impression that it is the leading proposal. The Christian Legal Society's Center for Law and Religious Freedom issued a press statement hailing the amendment.

Continued McFarland,

The type of fundamental revamping of the relationship between church and state that CLS and other Religious Right groups want cannot happen until two-thirds of both chambers of Congress approve an amendment. It must then be approved by three-fourths of the state legislatures. If that occurs, the "Religious Equality Amendment" or the "Religious Liberties Amendment" could become the 28th amendment to the Constitution.

Although the amendment process is difficult, AU's Lynn said the American people should not assume that one or both of these amendments cannot pass. Many members of Congress, who believe they owe their seats to groups like the Christian Coalition, can and will use their committee chairmanships to push the proposals along. Committee action and full floor votes in each chamber are likely.

Lynn noted that the 104th Congress has demonstrated a cavalier attitude toward church-state relations. Religious school vouchers are getting a big push in the House and Senate, and the welfare bill moved through both chambers despite having inadequate church-state safeguards.

The AU director also noted that Congress has shown a willingness to alter other provisions of the First Amendment, pointing out that an anti- flag burning amendment soared through the House by a wide margin last year.

"We cannot assume that these amendments will be defeated simply because they are so extreme," Lynn remarked. "It will take lots of hard word from dedicated Americans United members to educate the public and our elected officials about both the Hyde and Istook proposals. It's not too early for members to begin phoning and writing their congressional representatives to let Congress know that the American people oppose tampering with the Bill of Rights."

Origin: The mentally stunted turn morally rabid. (1:2430/2112)