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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-543
_______________________________________________________________________


 
    PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 
                      RESTORING RELIGIOUS FREEDOM

_______________________________________________________________________


May 19, 1998.--Referred to the House Calendar and ordered to be printed

                                _______
                                

 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 78]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 78) proposing an amendment to the 
Constitution of the United States restoring religious freedom, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the joint resolution as amended 
do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           2
Background and Need for the Legislation....................           3
Hearings...................................................          15
Committee Consideration....................................          17
Vote of the Committee......................................          17
Committee Oversight Findings...............................          18
Committee on Government Reform and Oversight Findings......          19
New Budget Authority and Tax Expenditures..................          19
Congressional Budget Office Cost Estimate..................          19
Constitutional Authority Statement.........................          20
Legislative Analysis.......................................          20
Dissenting Views...........................................          21
Additional Dissenting Views................................          34

    The amendment is as follows:
    Strike out all after the resolving clause and insert in 
lieu thereof the following:

That the following article is proposed as an amendment to the 
Constitution of the United States, which shall be valid to all intents 
and purposes as part of the Constitution when ratified by the 
legislatures of three-fourths of the several States within seven years 
after the date of its submission for ratification:

                              ``Article --

    ``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.''

                          Purpose and Summary

    H.J. Res. 78 proposes to amend the Constitution of the 
United States to secure the people's right to acknowledge God 
according to the dictates of conscience.\1\ The purpose of the 
Religious Freedom Amendment (RFA) is to restore the right of 
religious persons to acknowledge their beliefs, heritage, and 
traditions on public property, to engage in voluntary school 
prayer, and to have an equal opportunity to participate in 
government programs, activities, or benefits. The RFA would 
prohibit Federal and state governments from establishing any 
religion, prescribing any particular prayer, forcing anyone to 
join in prayer, discriminating against religion, or denying 
equal access to a benefit because of religious affiliation.\2\ 
If adopted, the RFA would not repeal but would coexist in the 
Constitution with the religion clauses of the First Amendment, 
which provide that ``Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise 
thereof . . .'' Nevertheless, the RFA clearly is intended to 
alter a number of judicial interpretations of those clauses, 
particularly of the establishment clause.
---------------------------------------------------------------------------
    \1\ More than forty-five states mention God in their constitutions 
or preambles to their constitutions and reference to a divinity occurs 
three times in the Declaration of Independence (``God,'' ``Creator,'' 
and ``divine Providence'').
    \2\ During the Subcommittee on the Constitution markup on October 
28, 1997, H.J. Res 78 was amended to make clear that ``government'' 
meant both the United States and state governments. The clear intention 
of the RFA is that it apply to the federal government and the states. 
The Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940), held 
that the establishment clause applies to the federal government and to 
the states.
---------------------------------------------------------------------------
    H.J. Res. 78, introduced by Congressman Ernest J. Istook, 
of Oklahoma, would respond to the public's concern that the 
Supreme Court and lower courts have misinterpreted the 
Constitution by issuing rulings that severely restrict 
religious expression when other forms of free speech are not so 
restricted, and which result in discrimination against a 
religious viewpoint in public affairs. The RFA would rectify 
acts of discrimination toward religious expression in everyday 
life. For example, the RFA would permit public schools to give 
students a moment of silence for prayer and the ability to 
pray 
on a voluntary basis in their classrooms. The RFA would permit 
prayer at high school graduation ceremonies as long as the 
government did not mandate that the prayer be part of the 
ceremonies or prescribe the text of the prayer, and would give 
religious groups and clubs the same degree of consideration as 
other secular groups receive when the use of school meeting 
rooms is requested. The RFA would allow the posting and display 
of symbols of differing faiths on public property and on 
government seals and insignia. The RFA would permit religious 
groups that provide social services programs the ability to be 
eligible to receive grants and contracts for these services to 
the same extent other private secular social services group are 
eligible.
    The goal of the RFA is not to change the First Amendment 
but rather to restore to the law a balanced and even-handed 
treatment of religious expression and affiliation.\3\ The RFA 
has broad-based support from a diverse group of religious 
organizations.
---------------------------------------------------------------------------
    \3\ The only previous vote in the House on a constitutional 
amendment concerning church and state in recent decades occurred in 
1971, when the House voted in favor of H.J.Res. 191, a school prayer 
proposal by Rep. Wylie (R.-Oh.) by a margin of 240-162; but that was 
twenty-eight votes short of the necessary two-thirds majority. That 
measure came to the House floor not by means of a Committee 
recommendations but through a discharge petition. The Senate conducted 
votes in 1966, 1970, and 1984.
---------------------------------------------------------------------------

                Background and Need For the Legislation

    Over the past four years, the Subcommittee on the 
Constitution held a number of hearings on the issue of 
``Religious Liberty and the Bill of Rights.'' The hearings 
revealed that religious speech, whether in school or on other 
public property, is often not afforded the same protection as 
non-religious speech. In addition to individuals encountering a 
hostility toward the exercise of free speech when the topic is 
religious in nature, qualified faith-based institutions are 
prevented from participating in programs to provide social 
services, drug prevention education, and drug treatment because 
of their religious character.
    The Subcommittee hearings included testimony from legal 
experts on the state of legal protection for religious freedom 
and testimony from individuals from around the country who 
related stories of adverse treatment because of their religion. 
Testimony from the regional hearings showed widespread 
discriminatory treatment based both on ignorance of the law and 
on outright animosity toward people with a religious viewpoint. 
For example:
          In Harrisonburg, Virginia, Jason Nauman testified 
        that while he was Student Council President his 
        classmates voted to have him deliver the keynote 
        commencement address, but he was told by the principal 
        and the school board attorney that anyone submitting a 
        speech which included a prayer or reference to God 
        would be removed from the graduation program. Also in 
        Harrisonburg, Mrs. Ellen Pearson told the Subcommittee 
        that she took her daughter Audrey, who attended special 
        education classes, out of a Prince William County 
        public school after the principal said that Audrey 
        could not read her Bible on the school bus because it 
        was a violation of the separation of church and state.
          In Tampa, Florida, students testified that they were 
        told they could not carry Bibles to school, could not 
        mention God or prayer in their commencement addresses, 
        and could not invite classmates to a church-sponsored 
        harvestfest celebration that was being held as an 
        alternative to Halloween ``trick-or-treating.''
          In Oklahoma City, Lyn Whittington testified that she 
        filed suit in Federal court when, as a public employee, 
        she was forbidden by the government from attending 
        Bible studies during non-work hours.
          In the District of Columbia, Mrs. Anna Doyle, from 
        Rhode Island, told the Subcommittee on the Constitution 
        how public school officials confiscated rosaries that 
        her daughter Kathryn had made for her friends. Mrs. 
        Doyle reported that a teacher told her daughter that 
        her favorite book ``Jesus My Love'' could not be read 
        during ``sharing time'' in school because it was 
        ``against the law.''
    More problematic than ignorance of the law, however, is the 
effect of misinterpretation of constitutional guarantees by the 
courts. Specifically, the phrase ``separation of church and 
state'' has been used frequently not to promote official 
neutrality toward public religious expression, but to promote 
hostility. Essentially, it suggests that whenever government is 
present, religion must be removed. Because government is today 
found almost everywhere, this growth of government has dictated 
a shrinking of religion under this faulty theory. 
``Separation'' has become a euphemism for ``crowding out'' 
religion.\4\ That phrase is not found in the Constitution; yet 
it is commonly erroneously treated as the standard measuring 
stick for religious freedom issues. A proper analysis of the 
right to religious freedom should center on the actual text of 
the Constitution.
---------------------------------------------------------------------------
    \4\ The severity of the problem was noted by Pope John Paul II, on 
greeting the new American ambassador to the Vatican in December, 1997, 
when he stated, ``It would truly be a sad thing if the religious and 
moral convictions upon which the American experiment was founded could 
now somehow be considered a danger to free society, such that those who 
would bring these convictions to bear upon your nation's public life 
would be denied a voice in debating and resolving issues of public 
policy. The original separation of Church and State in the United 
States was certainly not an effort to ban all religious conviction from 
the public sphere, a kind of banishment of God from civil society.''
---------------------------------------------------------------------------
    Our courts are blazing a wayward trail because they use a 
broken compass, a fact noted by several dissenting justices on 
the Supreme Court. After reviewing at great length both the 
extra-constitutional origin of the phrase, and the history of 
the development of the First Amendment itself, Chief Justice 
Rehnquist in his dissent in Wallace v. Jaffree, 472 U.S. 38 
(1985), condemned the reliance on the phrase ``separation of 
church and state:'' ``The evil to be aimed at, so far as those 
who spoke were concerned [in the Congress which approved the 
First Amendment], appears to have been the establishment of a 
national church, and perhaps the preference of one religious 
sect over another . . .'' 472 U.S. at 99. Rehnquist also 
examined the meaning of establishment: ``It would seem from 
this evidence that the Establishment Clause of the First 
Amendment had acquired a well-accepted meaning: it forbade 
establishment of a national religion, and forbade preference 
among religious sects or denominations.'' Id. at 106. Justice 
Rehnquist pointed to the patch-work precedents which have 
attempted to clarify the rule as evidence of its 
inappropriateness:
          Our recent opinions, many of them hopelessly divided 
        pluralities, have with embarrassing candor conceded 
        that the `wall of separation' is merely a `blurred, 
        indistinct, and variable barrier,' which `is not wholly 
        accurate' and can only be `dimly perceived.' Lemon v. 
        Kurtzman, 403 U.S. 602, 614 (1971); Tilton v. 
        Richardson, 403 U.S. 672, 677-678 (1971); Wolman v. 
        Walter, 433 U.S. 229, 236 (1977); Lynch v. Donnelly, 
        465 U.S. 668, 673 (1984).
Id. at 107. Rehnquist perceived the real trouble of the rule as 
follows: ``But the greatest injury of the `wall' notion is its 
mischievous diversion of judges from the actual intentions of 
the drafters of the Bill of Rights. . . . [it] is a metaphor 
based on bad history, a metaphor which has proved useless as a 
guide to judging. It should be frankly and explicitly 
abandoned.'' Id.
    The RFA reflects the dissenting opinions of many Justices 
during this period, many of which were 5-4 decisions. As noted 
in numerous examples, the RFA reflects the opinions expressed 
by many Supreme Court justices prior to the Court's detours in 
recent years.
    The deficiencies in current law and the effect of the RFA 
are discussed in three sections: School Prayer, Religious 
Expression on Public Property, and Equal Access to Government 
Benefits.
I. School Prayer

                          A. Classroom Prayer

    The Supreme Court has construed the establishment clause to 
prohibit government sponsorship or promotion of devotional 
activities such as prayer or Bible reading. Engel v. Vitale, 
370 U.S. 421 (1962); Abington School District v. Schempp, 374 
U.S. 203 (1963); Chamberlin v. Dade County Board of 
Instruction, 377 U.S. 402 (1964). In addition, moment-of-
silence statutes for the purpose of prayer are regarded as 
unconstitutional. Wallace v. Jaffree, 472 U.S. 38 (1985).
    Current law does not allow school-sponsored invocations and 
benedictions by clergy at commencement ceremonies. Lee v. 
Weisman, 505 U.S. 577 (1992). As for student-initiated and 
student-delivered prayer, the Supreme Court has yet to rule, 
and the federal circuit courts of appeal are split. See, e.g., 
Jones v. Clear Creek Independent School District, 977 F.2d 963 
(5th Cir. 1992) (student prayer does not violate establishment 
clause) and ACLU of New Jersey v. Black Horse Pike Regional 
Board of Education, 84 F.3d 1471 (3d Cir. 1996) (school board 
policy allowing vote of senior class to determine if prayer 
will be included in high school graduation is 
unconstitutional).
    The RFA states: ``[T]he people's right to pray and to 
recognize their religious beliefs, heritage or traditions on 
public property, including schools, shall not be infringed.'' 
In addition, it states that there are certain activities in 
which the government cannot engage: ``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  . . .''
    The RFA is intended to follow the standard which the U.S. 
Supreme Court has applied to the Pledge of Allegiance. ``The 
RFA effectively endorses and follows the standard applied by 
the Supreme Court in West Virginia State Board of Education v. 
Barnette, 319 U.S. 624 (1943). There the Court correctly ruled 
that no child could or should be compelled to say the Pledge of 
Allegiance. However, the Court did not create a right for an 
objecting student to prohibit their [sic] classmates from 
saying the Pledge of Allegiance.'' \5\
---------------------------------------------------------------------------
    \5\ Written Statement of Rep. Ernest Istook before the Subcommittee 
on the Constitution. July 22, 1997, p. 14.
---------------------------------------------------------------------------
    That portion of Engel v. Vitale which held that the 
government may not compose any official prayer or compel 
joining in prayer would not be overturned by the RFA, \6\ but 
RFA would overturn the portion of Engel which precludes 
students from engaging in group classroom prayer even on a 
voluntary basis. The prohibition on government-composed prayer 
or imposition of prayer found in Abington School District v. 
Schempp would not be disturbed.
---------------------------------------------------------------------------
    \6\ During the Subcommittee markup of H.J. Res 78, the text was 
amended so that the words ``initiate or designate'' were replaced with 
the word ``prescribe.'' The purpose of this change was to make clear 
that the government may not prescribe prayer either in the sense that 
it direct that prayers occur (the initiative would need to come from 
the students) nor may it ``prescribe'' prayer by mandating its content. 
In a letter to supporters of H.J. Res. 78 dated July 14, 1997, Mr. 
Istook explained the need for the amendment as follows: ``The concern 
was that any role by a school teacher or principal or other agent to 
accommodate student-sponsored prayer might be used to ban prayer . . . 
and to argue that certain Supreme Court rulings were not in fact 
reversed by the RFA. Some courts might then pursue detailed inquiry 
into whether some conduct of a teacher (such as asking a class 
president whether prayer was desired at graduation) `suggested' or 
`tainted' matters, even though it did not `compel' prayer. We do not 
wish to ban government accommodation, under a claim that such would be 
`initiating,' but we want to be clear that government should not 
prescribe prayer for students, nor the text of a prayer.''
---------------------------------------------------------------------------
    But to the extent that Abington broadly permits the 
Establishment Clause to supersede the Free Exercise Clause, it 
would yield to the standard enunciated in Justice Stewart's 
dissent:
          It is, I think, a fallacious oversimplification to 
        regard these two provisions as establishing a single 
        constitutional standard of ``separation of church and 
        state,'' which can be mechanically applied in every 
        case to delineate the required boundaries between 
        government and religion. We err in the first place if 
        we do not recognize, as a matter of history and as a 
        matter of the imperatives of our free society, that 
        religion and government must necessarily interact in 
        countless ways. Secondly, the fact is that while in 
        many contexts the Establishment Clause and the Free 
        Exercise Clause fully complement each other, there are 
        areas in which a doctrinaire reading of the 
        Establishment Clause leads to irreconcilable conflict 
        with the Free Exercise Clause.
374 U.S. at 309.
    In fact, Justice Stewart regarded permitting school prayer 
as a necessary element of diversity:
          [T]he duty laid upon government in connection with 
        religious exercises in the public schools is that of 
        refraining from so structuring the school environment 
        as to put any kind of pressure on a child to 
        participate in those exercises; it is not that of 
        providing an atmosphere in which children are kept 
        scrupulously insulated from any awareness that some of 
        their fellows may want to open the school day with 
        prayer, or of the fact that there exist in our 
        pluralistic society differences of religious belief.
Id. at 316-317.
    In addition, Wallace v. Jaffree would be overturned so that 
silent prayer would be permitted ``so long as there was no 
government dictate either to compel that it occur, or to compel 
any student to participate.'' \7\ As Chief Justice Burger 
stated in his dissent in Wallace v. Jaffree:
---------------------------------------------------------------------------
    \7\ Written Statement of Rep. Ernest Istook before the Subcommittee 
on the Constitution. July 22, 1997, p. 9.
---------------------------------------------------------------------------
          It makes no sense to say that Alabama has ``endorsed 
        prayer'' by merely enacting a new statute ``to specify 
        expressly that voluntary prayer is one of the 
        authorized activities during a moment of silence.'' . . 
        . To suggest that a moment-of-silence statute that 
        includes the word ``prayer'' unconstitutionally 
        endorses religion, while one that simply provides for a 
        moment of silence does not, manifests not neutrality 
        but hostility toward religion.
472 U.S. at 85. Burger denounced the majority's conclusion that 
the Alabama statute violated the principle of anti-
establishment:
          The notion that the Alabama statute is a step toward 
        creating an established church borders on, if it does 
        not trespass into, the ridiculous. The statute does not 
        remotely threaten religious liberty; it affirmatively 
        furthers the values of religious freedom and tolerance 
        that the Establishment Clause was designed to protect. 
        Without pressuring those who do not wish to pray, the 
        statute simply creates an opportunity to think, to 
        plan, or to pray if one wishes.
Id. at 89.
    The RFA would prohibit a school from preventing a student 
from engaging in religious expression on the same terms as non-
religious expression is allowed. Public school students would 
have the right to pray on school grounds during the school day, 
but students who did not wish to pray would be protected by the 
language which prevents government from compelling 
participation in prayer.
    According to Justice Potter Stewart in his dissent in 
Abington School District v. Schempp: 
          [A] compulsory state educational system so structures 
        a child's life that if religious exercises are held to 
        be an impermissible activity in schools, religion is 
        placed at an artificial and state-created disadvantage. 
        Viewed in this light, permission of such exercises for 
        those who want them is necessary if the schools are 
        truly to be neutral in the matter of religion. And a 
        refusal to permit religious exercises thus is seen, not 
        as the realization of state neutrality, but rather as 
        the establishment of a religion of secularism, or at 
        the least, as government support of the beliefs of 
        those who think that religious exercises should be 
        conducted only in private.
374 U.S. at 313.

                          B. Graduation Prayer

    With regard to graduation prayer, Justice Kennedy in the 5-
4 Lee v. Weisman decision concluded that the requirement that 
students maintain respectful silence during a rabbi's prayer 
was coercive because it created ``pressure, though subtle and 
indirect . . . as real as any overt compulsion.'' 505 U.S. at 
593. The standard articulated by Lee v. Weisman's slim majority 
has been dangerous because it rests upon the proposition that 
simple exposure to religious speech is so damaging that people 
must be protected from it. Indeed, Justice Kennedy in the 
majority opinion wrote: ``Assuming, as we must, that the 
prayers were offensive . . .'' Id. at 594.\8\ Lee v. Weisman's 
subjective standard permits a lone ``offended'' individual to 
silence all others in a public place, thereby censoring their 
religious expression.
---------------------------------------------------------------------------
    \8\ Even pornography is granted a chance to be measured against 
prevailing community standards; but prayer is assumed automatically to 
be offensive.
---------------------------------------------------------------------------
    The graduation prayers outlawed by Lee v. Weisman would be 
permitted under the RFA as long as the government did not 
require that prayer occur or seek to set forth the text of the 
prayer. The RFA takes issue with Justice Kennedy's view, and 
instead embodies the views of the four dissenting Justices, who 
concluded that ``hearing'' is not ``participating'' and 
``hearing'' is not ``joining'' in prayer, and thus there was no 
coercion to pray. The RFA would employ a common sense standard 
that no person can be compelled ``to join in prayer.'' \9\ The 
RFA applies a neutral standard--that respect for religious 
speech should be no less than the respect that is expected for 
nonreligious speech. In dissenting to Lee v. Weisman's 5-4 
ruling, Justice Scalia called the new ``psychological 
coercion'' standard ``boundless, and boundlessly manipulable.'' 
He noted that prayer at school graduations had been standard 
since the first known graduation from a public high school, in 
Connecticut in July 1868. Just as the RFA now does, Justice 
Scalia and the other three dissenting justices distinguished 
between being present and actually joining in a prayer:
---------------------------------------------------------------------------
    \9\ Current law allows the government to hire a chaplain to offer 
prayers at the opening of legislative sessions based on the practice's 
``unique history'' and the lack of any evidence tending to show that 
``the prayer opportunity [was] exploited to proselytize or advance any 
one, or to disparage any other, faith or belief.'' Marsh v. Chambers, 
463 U.S. 783, 794-95 (1983). The RFA, which states that ``neither the 
United States nor any state shall . . . prescribe school prayers,'' is 
intended to leave the holding in Marsh untouched because the 
prohibition on the prescription of prayer only applies to prayer in 
schools.
---------------------------------------------------------------------------
          According to the [majority opinion of the] Court, 
        students at graduation who want ``to avoid the fact or 
        appearance of participation,'' . . . in the invocation 
        and benediction are psychologically obligated by 
        ``public pressure, as well as peer pressure, . . . to 
        stand as a group or, at least, maintain respectful 
        silence'' during those prayers. This assertion--the 
        very linchpin of the Court's opinion--is almost as 
        intriguing for what it does not say as for what it 
        says. It does not say, for example, that students are 
        psychologically coerced to bow their heads, place their 
        hands in a Durer-like prayer position, pay attention to 
        the prayers, utter ``Amen,'' or in fact pray. . . . It 
        claims only that students are psychologically coerced 
        ``to stand . . . or, at least, maintain respectful 
        silence'' (emphasis added) . . . The Court's notion 
        that a student who simply sits in ``respectful 
        silence'' during the invocation and benediction (when 
        all others are standing) has somehow joined--or would 
        somehow be perceived as having joined--in the prayers 
        is nothing short of ludicrous.
505 U.S. at 636.

                  C. Equal Access for Religious Groups

    Current law permits students to meet to engage in religious 
speech on school grounds, subject to reasonable time, place, 
and manner restrictions. Hedges v. Wauconda Community School 
District, 9 F.3d 1295 (1993). In 1984, Congress enacted the 
``Equal Access Act'' (P.L. 98-377, 20 U.S.C. Sec. Sec. 4071 et 
seq.) which was intended to address widespread discrimination 
against religious speech in public schools. The Equal Access 
Act requires that public secondary schools receiving federal 
funds allow student groups to meet for religious speech, 
prayer, and Bible study on the same basis as other student 
groups are allowed to meet. In Board of Education of Westside 
Community Schools v. Mergens, 496 U.S. 226 (1990), the Supreme 
Court held that the Equal Access Act did not violate the 
establishment clause and upheld the act as constitutional. 
Application of the Act, however, has been intensely disputed. 
See Ceniceros v. San Diego Unified School District, 106 F.3d 
878 (9th Cir. 1997) (involving challenge to use of room during 
lunch time); Hsu v. Roslyn Union Free School District, 85 F. 3d 
839 (2nd Cir. 1996), cert. denied, 117 S.Ct. 608 (1996) 
(involving challenge to club with Christian-only officers 
policy); Garnett v. Renton School District, 987 F.2d 641, (9th 
Cir. 1993) cert. denied, 114 S.Ct. 72 (1993) (involving dispute 
over school as open forum).
    Current law, however, does not require that elementary 
schools allow religious clubs to meet on the same terms as 
nonreligious clubs (Bell v. Little Axe Independent School 
District, 766 F.2d 1391 (10th Cir. 1985)) or that schools allow 
private groups to conduct after-school religious instruction or 
services. The Bronx Household of Faith v. Community School 
District No. 10, 127 F.3d 207 (2nd Cir. 1997), cert. denied, 66 
U.S.L.W. 3687 (1998); Full Gospel Tabernacle v. Community 
School District No. 27, 979 F. Supp. 214 (S.D.N.Y. 1997).
    The RFA would effectively bar discrimination against 
religious clubs and organizations, and require that public 
meeting places, including elementary school facilities, be made 
available to them on the same basis as they are made available 
to other groups.
II. Religious Expression on Public Property

                           A. Public displays

    The Court has construed the establishment clause to 
prohibit government from displaying religious symbols by 
themselves on public property. Current law, however, does allow 
privately-sponsored religious displays on public property as 
long as the government does not foster or encourage the belief 
that government is endorsing religion. Lynch v. Donnelly, 465 
U.S. 668 (1984); Allegheny County v. American Civil Liberties 
Union, 492 U.S. 573 (1989).
    In Lynch v. Donnelly, the Supreme Court in a 5-4 decision 
upheld a city's inclusion of a creche in a Christmas display in 
a downtown park. Chief Justice Burger, writing for the 
majority, stated that, ``[t]here is an unbroken history of 
official acknowledgment by all three branches of government of 
the role of religion in American life from at least 1789'' and 
that there are ``countless other illustrations of the 
Government's acknowledgment of our religious heritage and 
governmental sponsorship of graphic manifestations of that 
heritage.'' 465 U.S. at 674 and 677.\10\
---------------------------------------------------------------------------
    \10\ See also, ``Legal Analysis of H.J.Res. 78, the `Religious 
Freedom Amendment,'' by David Ackerman, Congressional Research Service, 
June 11, 1997, footnote 43.
---------------------------------------------------------------------------
    In Allegheny County v. American Civil Liberties Union, 
however, the Supreme Court in another 5-4 decision restricted 
the display of a private creche on public property, citing a 
need for better visual ``balance'' with secular emblems. 
Justice Kennedy, concurring in part and dissenting in part, 
reiterated the appropriateness of the acknowledgments listed by 
Justice Burger, noting that ``government policies of 
accommodation, acknowledgment and support for religion are an 
accepted part of our political and cultural heritage'' 492 U.S. 
at 657. (Chief Justice Rehnquist, and Justices White and Scalia 
joined in this opinion.) Further, Justice Kennedy stated:
          Rather than requiring government to avoid any action 
        that acknowledges or aids religion, the Establishment 
        Clause permits government some latitude in recognizing 
        and accommodating the central role religion plays in 
        our society. Lynch v. Donnelly, supra at 678; Walz v. 
        Tax Comm'n of New York City, supra, at 669. Any 
        approach less sensitive to our heritage would border on 
        latent hostility toward religion, as it would require 
        government in all its multifaceted roles to acknowledge 
        only the secular, to the exclusion and so to the 
        detriment of the religious. A categorical approach 
        would install federal courts as jealous guardians of an 
        absolute `wall of separation,' sending a clear message 
        of disapproval. In this century, as the modern 
        administrative state expands to touch the lives of its 
        citizens in such diverse ways and redirects their 
        financial choices through programs of its own, it is 
        difficult to maintain the fiction that requiring 
        government to avoid all assistance to religion can in 
        fairness be viewed as serving the goal of neutrality.
492 U.S. at 657-58. Justice Kennedy concluded:
          In my view, the principles of the Establishment 
        Clause and our Nation's historic traditions of 
        diversity and pluralism allow communities to make 
        reasonable judgments respecting the accommodation or 
        acknowledgment of holidays with both cultural and 
        religious aspects. No constitutional violation occurs 
        when they do so by displaying a symbol of the holiday's 
        religious origins.
Id. at 679.
    Most recently in Capitol Square Review Board v. Pinette, 
115 S.Ct. 2440 (1995), Justice Scalia, held that a Ku Klux 
Klan-sponsored display of a cross in an open public forum in 
the square in front of the Ohio Capitol during the 1993 
Christmas season was not an impermissible establishment of 
religion. The plurality opinion, however, did not pronounce a 
coherent standard for such a display's constitutionality. 
Justices O'Connor, Ginsburg, Souter, Stevens, and Breyer 
supported the view that religious displays on public property 
are permissible only if the reasonable observer would not 
perceive the display as a government endorsement of religion. 
But Chief Justice Rehnquist and Justices Kennedy and Thomas 
joined the portion of Justice Scalia's decision which stated 
that, if the government applied an equal access policy to 
privately-sponsored public displays, it would not matter what 
the reasonable observer thought.
    While public displays of religion are, under current law, 
acceptable where they appear in an open forum, such as a 
square, and are limited in duration, more permanent displays 
have not been upheld, regardless of attempts to discourage the 
impression or perception of government endorsement.\11\ Public 
schools, for example, may not post the Ten Commandments. In 
Stone v. Graham, the Supreme Court concluded that a law 
requiring the posting of the Ten Commandments in public schools 
was an unconstitutional establishment of religion. The Court 
expressed concern that posting the Ten Commandments would 
``induce the schoolchildren to read, meditate upon, perhaps to 
venerate and obey, the Commandments.'' 449 U.S. at 39 (1980). 
In addition, the Ninth Circuit has upheld a permanent 
injunction forbidding the permanent presence of 3 crosses on 
public property in San Francisco. Ellis v. City of La Mesa, 990 
F.2d 1518 (9th Cir. 1993). Public displays of religious symbols 
have been prohibited as violating the establishment clause, 
including a cross on the seal of the City of Edmond, Oklahoma 
and the removal of a cross in San Francisco which had been in a 
public park for 65 years.
---------------------------------------------------------------------------
    \11\ See discussion at Government Seals and Insignia, infra.
---------------------------------------------------------------------------
    The RFA states, in part, that, ``the people's right to pray 
and to recognize their religious beliefs, heritage, or 
traditions on public property, including schools, shall not be 
infringed.'' To the extent that this provision is read to apply 
only to private religious expression, it is largely consonant 
with, and not to alter, existing constitutional law. According 
to its principal sponsor Representative Istook, however, the 
RFA also seeks to reinstate the principle that:
          ``the people's right'' is a right held both by 
        individuals and as a collective group. The RFA does 
        not, however, create a mechanism for government 
        officials to begin ordering inclusion of religious 
        symbols for constant or incessant display on public 
        property, because they would remain bound by the First 
        Amendment's prohibition on establishing a religion via 
        government. I stress that the Religious Freedom 
        Amendment is not intended to override the First 
        Amendment's prohibition on establishing any religion as 
        a state religion, or creating official status for any 
        set of beliefs. Nor would the RFA do so.\12\
---------------------------------------------------------------------------
    \12\ Written Statement of Rep. Ernest Istook before the 
Subcommittee on the Constitution. July 22, 1997, p. 11.
---------------------------------------------------------------------------
In testimony before the Subcommittee on the Constitution, 
Representative Istook explained that the expected 
implementation of this provision would require an approach that 
allows all faiths, minority as well as majority, to be 
included, so long as the inclusion does not mean advocating or 
promoting any particular faith.\13\
---------------------------------------------------------------------------
    \13\ Written Statement of Rep. Ernest Istook before the 
Subcommittee on the Constitution. July 22, 1997, p. 13.
---------------------------------------------------------------------------
    The RFA would overturn Allegheny County v. ACLU to the 
extent that the display of a private creche on public property 
requires secular symbols for better visual ``balance.'' The so-
called ``plastic reindeer'' test for holiday symbols on public 
property would no longer be decisive. Instead, Allegheny County 
would be brought back in line with Lynch v. Donnelly, which 
permitted display of a government-owned Nativity scene.
    The RFA would also overturn Stone v. Graham and allow, but 
not require, the posting of the Ten Commandments on public 
property as an expression of the religious beliefs, heritage, 
or traditions of the people.
    The key inquiry for public displays under the RFA would be 
``whether symbols of differing faiths were afforded similar 
opportunity for display during their special seasons'' and 
``whether government sought to establish an official 
religion.'' \14\ The intent of RFA is to establish true 
neutrality by affording religious expression the same 
protection as other expression.
---------------------------------------------------------------------------
    \14\ Written Statement of Rep. Ernest Istook before the 
Subcommittee on the Constitution. July 22, 1997, p. 12.
---------------------------------------------------------------------------

                    B. Government Seals and Insignia

    The federal courts of appeal are split on whether religious 
symbols on government seals and insignia are unconstitutional. 
See, e.g., Wayne Robinson v. City of Edmond, 68 F.3d 1226 (10th 
Cir. 1995), cert. denied, 517 U.S. 1201 (1996) (holding seal 
with cross unconstitutional); Harris v. City of Zion and Kuhn 
v. City of Rolling Meadows, 927 F.2d 1401 (7th Cir. 1991), 
cert. denied, 112 S.Ct. 3054 (1992) (holding that depiction of 
cross on seal creates impression that local government tacitly 
endorses Christianity in violation of the establishment 
clause); and Robinson v. City of Edmond, 68 F.3d 1226 (10th 
Cir. 1995) (concluding that religious symbols on government 
seals and insignia are in violation of the establishment 
clause). But see Murray v. City of Austin, 947 F.2d 147 (5th 
Cir. 1991) (ruling that religious symbols on government seals 
and insignia are not in violation of the establishment clause). 
The standard is whether an average observer would perceive the 
government's use of religious symbols on its seals and insignia 
to be an endorsement, but courts often disagree about the 
perception of the average observer.
    The RFA, on the other hand, would allow local governmental 
seals to reflect the people's religious beliefs, heritage, and 
traditions. The key inquiry for public displays under the RFA 
would be ``whether government sought to establish an official 
religion, rather than outlawing traditions from a public 
forum.'' \15\ As stated above, the intent of RFA is to 
establish neutrality in government's treatment of religion by 
affording religious expression the same protection as other 
expression.
---------------------------------------------------------------------------
    \15\ Written Statement of Rep. Ernest Istook before the 
Subcommittee on the Constitution. July 22, 1997, p. 12.
---------------------------------------------------------------------------
III. Equal Access to Government Benefits
    Aid that does not flow directly to religious institutions 
but initially to individuals has been upheld so long as the 
initial recipients have had a genuinely free choice about where 
to use the aid. Mueller v. Allen, 463 U.S. 388 (1983); Witters 
v. Washington Department of Services for the Blind, 474 U.S. 
481 (1986); Zobrest v. Catalina Foothills School District, 509 
U.S. 1 (1993).
    In Rosenberger v. Rector and Visitors of the University of 
Virginia, 515 U.S. 819, 844 (1995), aid in the form of payments 
to outside contractors on behalf of a religious student 
publication was upheld because the funding program was neutral 
toward religion, the payments were not made to the publication, 
and the publication was not a religious institution ``in the 
usual sense of that term as used in our case law.''
     Finally, in Agostini v. Felton, 117 S. Ct. 1997 (1997), 
the Supreme Court held that a federally funded program 
providing supplemental, remedial instruction to disadvantaged 
children on a neutral basis is not invalid under the 
establishment clause when such instruction is given on the 
premises of sectarian schools by government employees pursuant 
to a program containing safeguards. Because the program ``does 
not result in governmental indoctrination, define its 
recipients by reference to religion, or create an excessive 
entanglement,'' the program was found not to violate the 
establishment clause. Id. at 2016.
    In contrast with the reasoning found in Agostini, 
Rosenberger, Zobrest and Witters, there is also a body of 
Supreme Court precedent which prohibits the use of public funds 
for ``specifically religious activities'' or by ``pervasively 
religious'' organizations. Lemon v. Kurtzman, 403 U.S. 602 
(1971); Hunt v. McNair, 413 U.S. 734 (1973). This line of cases 
has been criticized recently, however, by Justice O'Connor who 
stated in her concurrence in Bd. of Education of Kiryas Joel v. 
Grumet, 512 U.S. 687, 717 (1994), that, ``the Religion Clauses 
prohibit the government from favoring religion, but they 
provide no warrant for discriminating against religion.''
    The RFA states, in part: ``Neither the United States nor 
any State shall . . . discriminate against religion, or deny 
equal access to a benefit on account of religion.'' The 
principle underlying this portion of the RFA was explained by 
Professor Carl Esbeck in his testimony before the Subcommittee 
on the Constitution:
          When government provides benefits to enable 
        activities that serve the public good, such as 
        education, health care, or social welfare, there should 
        be no discrimination in eligibility based on religion. 
        Nor should religious schools and charities be required 
        to engage in self-censorship or otherwise have to water 
        down their religious character as a condition of 
        program participation. The religious-equality model 
        allows individuals and religious groups to participate 
        fully and equally with their fellow citizens in 
        American's public life, without being forced to either 
        shed or disguise their religious character or 
        convictions. Importantly, the theory is not a call for 
        preferential treatment for religion in the 
        administration of publicly funded programs. Rather, 
        when it comes to participation in programs of aid, 
        religious equality merely lays claim to the same access 
        to benefits, without regard to religion, enjoyed by 
        others.\16\
---------------------------------------------------------------------------
    \16\ Written Testimony of Professor Carl Esbeck, Professor of Law, 
University of Missouri, before the Subcommittee on the Constitution, 
July 23, 1996, p. 3.
---------------------------------------------------------------------------
    Some opponents of the Amendment have argued that it would 
require the government to fund private religious institutions 
on the same basis as it supports public programs. Because the 
government funds public schools, for example, it would also be 
required to support private religious schools. This argument 
misreads the purpose and effect of the amendment. As explained 
by David Ackerman in the Congressional Research Service, 
``Legal Analysis of H.J.Res. 78, the `Religious Freedom 
Amendment:' ''
          The proposal does not, it should be noted, appear to 
        mandate the extension of benefits to religious 
        institutions where the benefits are otherwise 
        restricted to public institutions. The subsidy of 
        public schools, for instance, would not seem to trigger 
        a requirement of comparable funding of private 
        sectarian schools. Only where other private entities 
        are eligible participants or recipients would religious 
        entities have to be included and comparably 
        treated.\17\
---------------------------------------------------------------------------
    \17\ ``Legal Analysis of H.J.Res. 78, the `Religious Freedom 
Amendment,' '' by David Ackerman, Congressional Research Service, June 
11, 1997, p. 8.
---------------------------------------------------------------------------
    Some people object to the idea of allowing religious 
individuals and institutions to participate in publicly-funded 
programs. Participation by religious people, they argue, will 
allow taxpayer dollars to support religious ideas and values 
with which they do not agree in violation of their religious 
freedom. This objection is valid only when funding is provided 
to a religious activity or for a religious purpose on a 
preferential basis. In contrast, the RFA says that when 
government funds private groups to perform a valid secular 
purpose, it cannot prevent religious groups from participating 
on an equal basis. The principle of equality underlying this 
aspect of the amendment was explained by Professor Michael 
McConnell in his testimony before the Constitution Subcommittee 
in June of 1995:
          [I]t is argued that it would violate the religious 
        freedom of taxpayers to compel them to support schools 
        or other activities propagating ideas in which the 
        taxpayer does not believe. But this is a valid 
        objection only when funding is provided to a religious 
        activity on a preferential basis, because it is a 
        religious activity. That is what the battle over 
        disestablishment among our founders was about. The 
        principle has no application when the government funds 
        a wide variety of private groups, for a secular 
        purpose, and religious groups are included on a neutral 
        basis. No one suggests that churches or synagogues 
        should be denied the valuable benefits of police, fire 
        protection, roads, sewers, or tax benefits, on an equal 
        basis with other property and other nonprofit 
        institutions. There is no principled reason to deny a 
        similar equality to citizens who choose religious 
        schools or the services of other religious 
        institutions. Justice Brennen stated the principal well 
        in his plurality opinion in Texas Monthly, Inc. v. 
        Bullock, `Insofar as [a] subsidy is conferred upon a 
        wide array of nonsectarian groups as well as religious 
        organizations in pursuit of some legitimate secular 
        end, the fact that religious groups benefit 
        incidentally does not deprive the subsidy of the 
        secular purpose and primary effect mandated by the 
        Establishment Clause.' The underlying requirement is 
        one of neutrality.\18\
---------------------------------------------------------------------------
    \18\ Written testimony of Professor Michael McConnell, William B. 
Graham Professor of Law, University of Chicago Law School, before the 
Subcommittee on the Constitution, June 8, 1995, pp. 16-17.
---------------------------------------------------------------------------
    In sum, the provisions of the RFA would apply where a state 
enacts a program of aid that funds all private and public 
schools, for example, but explicitly disqualifies participation 
by religious providers. Should a state decide to provide 
support only to government-operated schools, however, such a 
decision would not violate the RFA.
    The RFA is in keeping with the principles underlying 
Agostini, Rosenberger, Zobrest and Witters. Under the RFA, 
government aid or a government program would still need to 
serve a secular purpose such as education or drug treatment. As 
long as sectarian institutions are considered on an equal basis 
with non-sectarian institutions and with other sectarian 
institutions they will be eligible to receive government 
funding, even funding made directly to the institutions.

                                Hearings

    The Subcommittee on the Constitution held five days of 
hearings on ``Religious Liberty and the Bill of Rights'' on 
June 8, 10, and 23, and July 10 and 14, 1995; a hearing on 
``Legislation to Further Protect Religious Freedom'' on July 
23, 1996; and a hearing on H.J. Res. 78: ``Proposing an 
Amendment to the Constitution of the United States Restoring 
Religious Freedom'' on July 22, 1997.
    On June 8, 1995, testimony was received from the following 
witnesses: Representative Ernest J. Istook, Jr., U.S. House of 
Representatives, 5th District, Oklahoma; Michael Stokes 
Paulsen, Professor, University of Minnesota Law School; Norman 
Redlich, Attorney, Watchell, Lipton, Rosen & Katz; Michael 
McConnell, William B. Graham Professor of Law, University of 
Chicago Law School; Dr. Derek H. Davis, Director, J.M. Dawson 
Institute of Church-State Studies, Baylor University; William 
Ball, Counsel, Ball, Skelly, Muffen & Connell.
    On June 10, 1995, at a field hearing held in Harrisonburg, 
Virginia, testimony was received from the following witnesses: 
Colby May, Attorney, American Center for Law and Justice; C. 
Dow Chamberlain, Interfaith Center for Public Policy; Reverend 
William Wilson, Pastor, First Baptist Church of Waynesboro; Dr. 
Charles G. Fuller, Pastor, First Baptist Church of Roanoke; Ron 
Rosenberger, Former student, University of Virginia; Professor 
Robert Alley, Professor of Humanities, University of Richmond; 
Jason Nauman, Former Student Council President, Spotswood High 
School; Audrey Pearson, Student, accompanied by her mother, 
Mrs. Ellen Pearson; Craig L. Parshall, Attorney; Ray Gingerich, 
Professor of Bible and Church History, Eastern Mennonite 
College; Kelly Shackelford, Adjunct Professor, University of 
Texas School of Law.
    On June 23, 1995, at a field hearing held in Tampa, 
Florida, testimony was received from the following witnesses: 
Matthew D. Staver, Attorney, Stavers & Associates; Reverend 
Henry Green, Pastor, Heritage Community Church; Amber Johnston-
Leohner, Student, accompanied by her mother, Marian Johnston-
Loehner; Jennifer Greene, Student; Reverend Marcia Free, 
President, Hillsborough Clergy Association; Dr. Charles W. 
Spong, Director for Distance Education, Southeastern College of 
the Assemblies of God; Rebecca Fiore, Student, accompanied by 
her mother April Fiore; Delano S. Stewart, Attorney, Stewart, 
Joyner, Jordan-Holmes, Holmes; Joshua Burton, Student, 
accompanied by his father Mark Burton; Robert Rosenthal, 
President, American Jewish Committee, Sarasota Chapter; A. Eric 
Johnston, Attorney, Trippe & Brown.
    On July 10, 1995, testimony was received from the following 
witnesses: His Eminence, John Cardinal O'Connor; Reverend Dr. 
James Forbes, Jr., Senior Minister, The Riverside Church; 
Father Richard John Neuhaus, President, Institute on Religion 
and Public Life; Rabbi Arthur Hertzberg, Rabbi Emiritus, Temple 
Emmanuel; Rabbi Mayer Schiller, Author and Lecturer; Mrs. Lisa 
Herdahl, Ecru, Mississippi; Mr. Joseph P. Infranco, Attorney, 
Migliore and Infranco, P.C.
    On July 14, 1995, at a field hearing held in Oklahoma City, 
Oklahoma, testimony was received from the following witnesses: 
Representative Ernest J. Istook, Jr., U.S. House of 
Representatives, 5th District, Oklahoma; William J. Murray, 
Author and Editor, Al Edwards, Texas House of Representatives, 
District No. 146; Scott Armey, Commissioner, Denton County, 
Texas; Shannon Welch, High School Valedictorian; Ron Barber, 
Attorney, Barber & Bartz; Lyn Whittingham, Private citizen; 
Greg Schwab, father of student, Audrey Schwab; Dr. Lavonn D. 
Brown, Pastor, First Baptist Church in Norman, Oklahoma; Miss 
Shanda Bontempi, Oklahoma City School Student; Richard L. 
Christensen, Assistant Professor of Church History, Phillips 
Theological Seminary; Dr. Sandra Rana, mother of a student in 
Tulsa Public School.
    On July 23, 1996, testimony was received from the following 
witnesses: Representative Ernest J. Istook, Jr., U.S. House of 
Representatives, 5th District, Oklahoma; Anna Doyle, mother of 
six, accompanied by daughters Katie and Rebecca, Rhode Island; 
Brother Bob Smith, Principal, Messmer High School, Milwaukee, 
Wisconsin; Reverend Elenora Giddings Ivory, Director, 
Washington, D.C. Office, Presbyterian Church, U.S.A.; Dr. 
William A. Donahue, President, Catholic League for Religious 
and Civil Rights; Dr. Anne L. Bryant, Executive Director, 
National School Boards Association; Jay Alan Sekulow, Chief 
Counsel, American Center for Law and Justice; Forest 
Montgomery, Counsel, Office for Governmental Affairs, National 
Association of Evangelicals; Reverend Oliver S. Thomas, Special 
Counsel, National Council of Churches; Dr. Richard Land, 
President, Christian Life Commission, Southern Baptist 
Convention; Rabbi A. James Rudin, Director of Interreligious 
Affairs, American Jewish Committee; Carl H. Esbeck, Isabell 
Wade & Paul C. Lydia Professor of Law, University of Missouri; 
Reverend Lou Sheldon, Chairman, Traditional Values Coalition; 
Carole Shields, President, People for the American Way; Craig 
Parshall, Attorney, Concerned Women for America; Reverend Barry 
W. Lynn, Executive Director, Americans United for Separation of 
Church and State; Gregory Baylor, Assistant Director, Center 
for Law and Religious Freedom, Christian Legal Society.
    On July 22, 1997, testimony was received from the following 
witnesses: Representative Ernest J. Istook, Jr., U.S. House of 
Representatives, 5th District, Oklahoma; Representative Chet 
Edwards, U.S. House of Representatives, 11th District, Texas; 
Representative Tom Campbell, U.S. House of Representatives, 
15th District, California; Representative Walter Capps, U.S. 
House of Representatives, 22nd District, California; 
Representative Sanford Bishop, U.S. House of Representatives, 
2nd District, Georgia; Craig Parshall, Special Legal Counsel, 
Concerned Women for America; Reverend Barry W. Lynn, Executive 
Director, Americans United for Separation of Church and State; 
Jim Henderson, Senior Counsel, American Center for Law and 
Justice; Dr. Derek H. Davis, Director, J.M. Dawson Institute of 
Church-State Studies; Mark Scarberry, Professor of Law, 
Pepperdine University School of Law; William Murray, Americans 
for School Prayer; Reverend Timothy McDonald, Iconium Baptist 
Church; Rabbi Aryeh Spero, Congregational Rabbi.

                        Committee Consideration

    On October 27, 1997, the Subcommittee on the Constitution 
met in open session and ordered favorably reported the 
resolution H.J. Res. 78, as amended by an amendment in the 
nature of a substitute offered by Mr. Hutchinson, by a vote of 
8 to 4, a reporting quorum being present.
    On March 4, 1998, the Committee met in open session and 
ordered reported favorably the resolution H.J. Res. 78, as 
amended by an amendment in the nature of a substitute ordered 
reported by the Subcommittee, by a recorded vote of 16 to 11, a 
reporting quorum being present.

                         Votes of the Committee

    The Committee considered the following amendments.

                          Rollcall Vote No. 1

    An amendment by Mr. Scott to delete that portion of the 
Resolution that would permit religious organizations to have 
equal access to the same benefits made available to private 
non-religious groups. The amendment was defeated by a 9-14 
rollcall vote.

        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Mr. Meehan                          Mr. Buyer
Mr. Wexler                          Mr. Bryant (TN)
Mr. Rothman                         Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Rogan
                                    Mr. Graham (SC)

                          Rollcall Vote No. 2

    An amendment by Ms. Jackson-Lee to delete the reference in 
the Resolution to the people's right to ``acknowledge God'' and 
replace it with the people's right to ``freedom of religion.'' 
The purpose of the amendment was to delete a reference to 
``God'' in the Resolution. The amendment was defeated by a 7-18 
rollcall vote.

        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Nadler                          Mr. Sensenbrenner
Mr. Scott                           Mr. McCollum
Ms. Jackson-Lee                     Mr. Coble
Ms. Waters                          Mr. Smith (TX)
Mr. Meehan                          Mr. Gallegly
Mr. Delahunt                        Mr. Canady
                                    Mr. Inglis
                                    Mr. Buyer
                                    Mr. Bryant (TN)
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Rogan
                                    Mr. Watt
                                    Ms. Lofgren
                                    Mr. Wexler
                                    Mr. Rothman
        PRESENT
Mr. Graham (SC)

                          Rollcall Vote No. 3

    Final Passage. Mr. Hyde moved to report H.J. Res. 78 
favorably, as amended by an amendment in the nature of a 
substitute ordered reported by the Subcommittee, by a recorded 
vote of 16 to 11.*

        YEAS                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Sensenbrenner                   Mr. Frank
Mr. McCollum                        Mr. Nadler
Mr. Coble                           Mr. Scott
Mr. Smith (TX)                      Mr. Watt
Mr. Gallegly                        Ms. Jackson-Lee
Mr. Canady                          Ms. Waters
Mr. Inglis                          Mr. Meehan
Mr. Goodlatte                       Mr. Delahunt
Mr. Buyer                           Mr. Wexler
Mr. Bryant (TN)                     Mr. Rothman
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Mr. Graham (SC)
    *Ms. Lofgren, who was absent on official business, 
indicated, had she been present, she would have voted NAY.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the resolution, H.J.Res. 78, the 
following estimate and comparison prepared by the Director of 
the Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, March 9, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 78, a joint 
resolution proposing an amendment to the Constitution of the 
United States restoring religious freedom.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for the federal costs), who can be reached at 226-
2860, and Leo Lex (for the state and local impact), who can be 
reached at 225-3220.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

    cc: Hon. John Conyers, Jr.,
         Ranking Minority Member.
H.J. Res. 78--A joint resolution proposing an amendment to the 
        Constitution of the United States restoring religious freedom
    H.J. Res. 78 would propose amending the Constitution to 
secure people's rights to religious freedom. The legislatures 
of three-fourths of the states would be required to ratify the 
proposed amendment within seven years for the amendment to 
become effective.
    CBO estimates that adopting this amendment would result in 
no significant cost to the federal government. Because 
enactment of H.J. Res. 78 would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply.
    CBO is uncertain whether section 4 of the Unfunded Mandates 
Reform Act of 1995 (UMRA), which excludes from consideration 
under that act any bill or joint resolution that enforces 
constitutional rights of individuals, applies to H.J. Res. 78. 
If the joint resolution is not excluded from consideration 
under UMRA, uncertainties about how it would be interpreted and 
implemented make it impossible to determine whether it would 
impose any intergovernmental mandates and what the costs of any 
such mandates might be. The joint resolution would impose no 
private-sector mandates.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for the federal costs), who can be reached at 226-
2860, and Leo Lex (for the state and local impact), who can be 
reached at 225-3220. This estimate was approved by Robert A. 
Sunshine, Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article V of the Constitution.
    Article V of the United States Constitution provides that 
the Congress has the authority to propose amendments to the 
Constitution. Such proposed amendments must be approved by two-
thirds vote of both Houses. Congress must also specify whether 
the ratification process is to be done through State 
legislatures or by State conventions. In either case, a 
proposed amendment must be ratified by three-fourths of the 
State legislatures or State conventions. H.J. Res. 78 calls for 
ratification by State legislatures.

                          Legislative Analysis

    H.J.Res. 78 proposes to reinforce the people's right to 
acknowledge God according to the dictates of conscience, to 
protect the people's right to religious expression on public 
property, and to prohibit the government from denying religious 
people or organizations the ability to participate in 
government programs, activities, or benefits.
    The RFA is proposed to clarify that the supreme law of the 
land protects the religious freedom rights against infringement 
by state as well as federal governmental actions. The RFA is 
proposed to correct adverse court decisions that have resulted 
in the weakening of constitutional protection for the freedom 
of religion, as previously discussed in the Background and Need 
for the Legislation section.
    The RFA allows voluntary prayer (and other religious 
activity) in public schools and religious expression on public 
property, but forbids any mandatory participation or prescribed 
prayers. The RFA does not create an absolute right to 
protection of religious expression, such as a right to disrupt 
class by spontaneously offering a prayer, just as the First 
Amendment does not protect the right to disrupt class by 
expressing speech of a different content. Neither the federal 
government nor the state government could, however, prescribe 
prayer or direct or dictate the content of the prayer under the 
RFA. Religious symbols and religious expression would no longer 
be suspect when they occur on public property under the RFA.
    The ``benefits'' language in the RFA does not guarantee any 
benefit to any person or group. Rather, it provides that 
government may not deny to a religious person or organization 
the ability to apply for a benefit to the same extent that the 
benefit is made available to other private people or 
organizations. The portion of the Amendment requiring ``equal 
access to a benefit on account of religion'' will ensure that 
government programs be administered without discrimination on 
the basis of religion.

                    Dissenting Views to H.J. Res. 78

                              Introduction

    H.J. Res. 78 \1\--the sixth constitutional amendment 
scheduled for a floor vote so far this Congress--represents a 
continuation of an unprecedented assault on our Constitution 
and our civil liberties.
---------------------------------------------------------------------------
    \1\ H.J. Res. 78 provides, ``[t]o 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.''
---------------------------------------------------------------------------
    Though short, this Amendment effectively destroys the First 
Amendment while doing nothing to protect against government 
discrimination against religion that the Constitution does not 
already do. The First Amendment Free Exercise Clause and the 
Establishment Clause,\2\ as well as the Fourteenth Amendment 
Equal Protection Clause \3\ already clearly and effectively 
prohibit the government from discriminating against religion.
---------------------------------------------------------------------------
    \2\ The First Amendment to the Constitution provides ``Congress 
shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof.'' The former the ``Free Exercise 
Clause,'' and the latter is the ``Establishment Clause.'' U.S. CONST. 
amend. I, cl.1.
    \3\ The Equal Protection Clause of the Fourteenth Amendment 
provides ``No State shall . . . deny to any person within its 
jurisdiction the equal protection of the laws.'' U.S. Const. amend. 
XIV, Sec. 1, cl. 4.
---------------------------------------------------------------------------
    The most likely effect of H.J. Res. 78 is to allow coercive 
religious activities by government in general and public 
schools in particular, and to mandate that the government fund 
religion in the same manner it funds secular activities, paving 
the way for public support of parochial schools and other 
religious causes. The result will be the defunding, if not the 
elimination of public education in this country.
    While many proponents of H.J. Res. 78 claim it is ``pro-
religion,'' their argument is undercut by the significant 
number of religious organizations that oppose this 
Constitutional Amendment.\4\ It is, in fact, because we are so 
concerned about the need to protect religious liberty that we 
vigorously oppose H.J. Res. 78 and dissent from its adoption.
---------------------------------------------------------------------------
    \4\ Religiously affiliated organizations opposing this Amendment 
include: American Baptist Churches, U.S.A., American Jewish Committee, 
American Jewish Congress, Americans for Religious Liberty, Americans 
United for Separation of Church and State, Anti-Defamation League, 
Baptist Joint Committee on Public Affairs, B Nai Brith, Central 
Conference of American Rabbis, Church of the Brethren Washington 
Office, Church State Council of Seventh-day Adventists, the Episcopal 
Church, Friends Committee on National Legislation, General Board of 
Church & Society, United Methodist Church, General Conference of 
Seventh-day Adventists, Hadassah, the Interfaith Alliance, Interfaith 
Religious Liberty Association, Jewish Council for Public Affairs, 
Jewish Labor Committee, the Jewish Reconstructionist Federation, Jewish 
Women International, Lutheran Office for Governmental Affairs of the 
Evangelical Lutheran Church in America, Mainstream Loudoun, Mennonite 
Central Committee Washington Office, Muslim Public Affairs Council, 
National Council of Churches of Christ in the U.S.A., National Council 
of Jewish Women, National Council on Islamic Affairs, National Jewish 
Democratic Council, Presbyterian Church Washington Office, Rabbinical 
Assembly, Reconstructionist Rabbi Association, Soka Gakki International 
U.S.A., Southern Christian Leadership Conference, Union of American 
Hebrew Congregations, United Church of Christ Office for Church in 
Society, the United Synagogue of Conservative Judaism, Unitarian 
Universalist Association, Women of Reform Judaism the Federation of 
Temple Sisterhoods, Women's American ORT, and the Women's League for 
Conservative Judaism.
---------------------------------------------------------------------------
I. The First Amendment Has Fostered Widespread Religious Liberty and 
        Diversity
    Religion is alive and well in America today. According to 
the annual Pew survey on the state of religion in America, 71% 
of those polled ``never doubted'' the existence of God; 61% 
believe that miracles come ``from the power of God;'' and 53% 
believe in daily prayer.\5\ Notably, all of these figures have 
risen by double digits since 1987.\6\ Moreover, a recent study 
conducted by the University of Michigan shows that weekly 
worship in the United States exceeds that in any other 
industrialized nation. We worship more than twice as often as 
the French and nearly twice as much as the British.\7\
---------------------------------------------------------------------------
    \5\ Frank Rich, Let Them Not Pray, N. Y. Times, Jan. 7, 1998, at 
A21.
    \6\ Id.
    \7\ Id.
---------------------------------------------------------------------------
    More specifically, a 1994 Gallup poll shows that 96% of all 
Americans believe in God; 69% of Americans are members of a 
church or synagogue, 42% attended a church or synagogue within 
the past 7 days, 58% say that religion is ``very important ''in 
their life, and 62% believe that religion ``can answer all or 
most of today's problems.'' \8\
---------------------------------------------------------------------------
    \8\ George Gallup, Jr., Religion in America; Religion in America, 
Will the Vitality of Churches be the Surprise of the Next Century?, 6 
The Public Perspective, No. 6, October/November 1995.
---------------------------------------------------------------------------
II. The First Amendment Was Never Intended to Permit Government 
        Entanglement with Religion
    Supporters of H.J. Res. 78 contend that the courts have 
consistently misinterpreted the framers' intentions in creating 
the First Amendment in the Bill of Rights, resulting in the 
suppression of religion. The majority argues that the framers 
intended only that no one single religion be preferred over 
others, but that the framers had no intention of prohibiting 
government aid to all religions or to religion on a 
nonpreferential basis. In truth, convinced that government 
meddling with religion produces intolerance, persecution and 
bloodshed, the Founders outlined a process of checks and 
balances to protect life, liberty and property, not to save 
souls or make men moral and good.\9\ An analysis of the history 
of the Establishment Clause demonstrates this intent.
---------------------------------------------------------------------------
    \9\ Isaac Kramnick and R. Laurence Moore, In Godless We Trust; Why 
the Founding Fathers Created a Religion-Free Political Order, and Why 
We Shouldn't Change It, W. Post, Jan. 14, 1996, at C1.
---------------------------------------------------------------------------
    In Europe, an establishment of religion meant a state 
church: one church exclusively enjoying the benefits of a 
formal, legal union with the state.\10\ It was the church of 
the state and attendance at its services was often compulsory 
and all subjects, even dissenters paid for its support.\11\ In 
this country, the political debate at the time the First 
Amendment was adopted was not between those who wanted to 
support religion and those who did not. At the Constitutional 
Convention, it had already been decided not to give the federal 
government any power to deal with religion.\12\ The issue faced 
by the first Congress was how to define a prohibition so that 
no future Congress would assume an authority that had not been 
provided in the Constitution.\13\ For this reason, the language 
did not say ``Congress shall make no law establishing 
religion,'' but instead reads: ``Congress shall make no law 
respecting an establishment of religion.'' This clear language 
cannot be construed as authorizing Congress to support 
religious institutions.\14\ It defies logic to suppose that an 
amendment expressly designed to prohibit a power never given to 
Congress in the Constitution should be construed as creating 
the authority to enact laws benefitting religion 
financially.\15\
---------------------------------------------------------------------------
    \10\ Leonard W. Levy, The Establishment Clause, How Does the 
Constitution Protect Religious Freedom?, 69 (Robert A. Goldwin and Art 
Kaufman eds. 1987).
    \11\ Id.
    \12\ John M. Swomley, Religious Liberty and the Secular State: The 
Constitutional Context, 44-45 (1987).
    \13\ Id. at 45.
    \14\ Id. at 49.
    \15\ Id.
---------------------------------------------------------------------------
    Some argue that the word establishment really means 
preferment, and that the First Amendment is therefore against 
preferential aid to churches, but not against aid itself. Yet 
when considering the Amendment, the Senate rejected the idea 
that establishment is preferment by voting against all attempts 
to limit the meaning of establishment to the concept of 
preference.\16\ It did not thereby imply that nonpreferential 
aid is acceptable.
---------------------------------------------------------------------------
    \16\ Id. at 51.
---------------------------------------------------------------------------
    In the House, when a prohibition on a single national 
establishment of religion was proposed, it was rejected in 
Committee and repudiated on the floor. The author of the 
proposal withdrew it and the House then adopted a motion that 
``Congress shall make no laws touching religion. . . .'' \17\ 
No consideration was ever given to preferential aid to religion 
because the First Amendment does not empower Congress. Rather, 
it denies Congress any power to vote laws respecting an 
establishment of religion.\18\
---------------------------------------------------------------------------
    \17\ Id. at 52.
    \18\ Id. at 51.
---------------------------------------------------------------------------
    In essence, the unamended Constitution vests no power over 
religion and the First Amendment vests no power at all. The 
framers believed that no limitations on the government's power 
over religion was necessary because the government possessed 
only delegated authority plus the authority necessary to 
execute the delegated powers, leaving the government entirely 
without authority over religion.\19\ Therefore, even in the 
absence of the First Amendment, the government is powerless to 
enact laws benefitting religion, with or without 
preference.\20\
---------------------------------------------------------------------------
    \19\ Levy, supra note 10, at 84.
    \20\ Id.
---------------------------------------------------------------------------
    The history of the Constitution clearly refutes those who 
argue that the Constitution was designed to perpetuate a 
Christian order and that the separation of church and state is 
a myth created by the heretical left. Those concerned with the 
absence of a reference to a deity in the Constitution knew it 
then. The anti-Federalist opponents of the Constitution 
attacked it and its infidel sponsors. One of the most damning 
criticisms of the Constitution during the ratification debates 
was ``its cold indifference towards religion.'' \21\
---------------------------------------------------------------------------
    \21\ Kramnick and Moore, supra note 9.
---------------------------------------------------------------------------
III. Congress Has Wisely Rejected Altering the First Amendment in the 
        Past
    Congress has taken a number of statutory actions to protect 
religion, but has wisely rejected efforts to amend the 
Constitution. Over time Congress has contemplated many measures 
to address the school prayer issue including constitutional 
amendments; \22\ limitations on federal court jurisdiction; 
\23\ equal access proposals; \24\ appropriations riders; \25\ 
the cutoff of funds; \26\ and Sense-of-the-Congress 
resolutions.\27\ In addition, Congress modified two Senate-
passed funds cutoff proposals to the ``Goals 2000: Educate 
America Act'' in 1994 to bar funds under the Act from being 
used by state or local educational agencies ``to adopt policies 
that prevent voluntary prayer and meditation in public 
schools.'' \28\
---------------------------------------------------------------------------
    \22\ These proposals have taken a variety of forms and have been 
the subject of numerous hearings. The Senate has voted four times on 
such measures (in 1966, 1970, and twice in 1984) and the House once (in 
1971). But only the in Senate vote in 1970 did a constitutional 
amendment garner the two-thirds majority necessary for adoption, and 
that vote was perceived less as a vote on school prayer than as a vote 
to kill the measure to which the school prayer amendment was attached--
the Equal Rights Amendment.
    \23\ In every Congress from the 93rd through the 103rd, proposals 
were introduced to strip the federal courts of all jurisdiction over 
cases involving the school prayer issue. Several hearings were held on 
the proposals, and the Senate voted in favor of such a measure in 1979. 
Subsequently, however, the Senate rejected such proposals by 
increasingly wide margins in 1982, 1985, and 1988.
    \24\ The Supreme Court's 1981 decision in Widmar v. Vincent, gave 
impetus to Congressional proposals to ensure the student-initiated 
religious groups at the high school level the same extracurricular 
rights and privileges as non-religious student groups. 454 U.S. 263 
(1981). Several hearings were held on the subject, and in 1984 Congress 
enacted into law the ``Equal Access Act.'' Pub. L. 98-377, Title VIII 
(AUG. 11, 1984); 98 Stat. 1302-04; 20 U.S.C. Sec. 4071-74 (1997).
    \25\ Beginning in 1980 efforts were made to attach riders to the 
appropriations acts for the Department of Education barring the use of 
funds to prevent the implementation of programs of voluntary prayer and 
meditation in the public schools. Neither the House nor the Senate has 
ever taken a recorded vote on the matter, but the rider (known as the 
Walker amendment) has been included in all of the measures funding the 
Department of Education since fiscal 1981.
    \26\ Since 1984 both the House and Senate have voted on amendments 
to cut off federal education funds from any state or local educational 
agency that prevents individuals from participating in voluntary 
prayer. Such proposals have been approved twice in both the House (in 
1989 and 1994) and the Senate (both in 1994), and rejected once in each 
body (in 1984 in the house, in 1994 in the Senate.) A limited version 
of the proposal--the Kassebaum amendment--was enacted into law in 1994 
as part of the ``Improving America's Schools Act of 1994.'' Pub. L. 
103-382, Title XIV, Sec. 14510 (Oct. 20, 1994); 108 Stat. 3518; 20 
U.S.C. Sec. 8900.
    \27\ A number of resolutions have been introduced since Engel, that 
would express Congress' view on what devotional activities in the 
public schools remain permissible under the Court's decisions. The 
resolutions have sometimes been perceived as an alternative to a 
constitutional amendment, but they have not won extensive support. The 
Senate rejected two such proposals in 1966 while adopting one in 1994, 
but the latter proposal was deleted in conference.
    \28\ P.L. 103-227, Title X, Sec. 1011 (March 31, 1994); 108 Stat. 
265; 20 U.S.C. Sec. 6061.
    Although able to avoid a constitutional amendment or the 
elimination of federal court jurisdiction over the issue of school 
prayer, Congress has not been able to avoid any legislation on this 
issue. Congress has enacted (1) a requirement that public secondary 
schools which receive federal financial assistance afford student-
initiated religious, philosophical, and political groups the same 
opportunity to meet during the school day as is afforded other student-
initiated extracurricular groups (the Equal Access Act, 20 U.S.C. 
Sec. 4071-74); (2) a prophylactic rider to the appropriations acts for 
the Department of Education, added since fiscal 1981, providing that 
none of the funds may be used to prevent the implementation of programs 
of voluntary prayer and meditation in the public schools; (3) an 
amendment to the ``Goals 2000: Educate America Act'' barring state and 
local educational agencies from using funds under the Act to adopt 
policies that prevent voluntary prayer and meditation in public 
schools; and (4) an amendment to the ``Improving America's Schools Act 
of 1994'' cutting off federal education funds to any state or local 
education agency that refuses to abide by a court decision holding it 
in violation of the constitutional right of a student with respect to 
prayer in the public schools.
---------------------------------------------------------------------------
    The Senate has voted only four times on constitutional 
amendments concerning school prayer: in 1966,\29\ 1970 \30\ and 
twice in 1984.\31\ Only the 1970 constitutional amendment 
garnered the two-thirds majority necessary for adoption and 
that vote was considered less as a vote on school prayer than 
as a vote to kill the measure to which the amendment was 
attached--the Equal Rights Amendment.\32\
---------------------------------------------------------------------------
    \29\ In the 89th Congress (1965-1966), the Senate was forced to 
vote on a constitutional amendment to reverse the Supreme Court's 
holding in Engle v. Vitale, 370 U.S. 421 (1962), banning school 
sponsored prayer. 112 Cong. Rec. 23556 (Sept. 21, 1966).
    \30\ 116 Cong. Rec. 36478-36505 (Oct. 13, 1970).
    \31\ 130 Cong. Rec. 5733 (March 15, 1984); 130 Cong. Rec. 5619 
(March 20, 1984).
    \32\ See supra note 30.
---------------------------------------------------------------------------
    Last Congress, the Constitution Subcommittee held 6 
separate hearings on religious liberty and the bill of rights. 
These hearings concerned the general question of religious 
liberty with the last of those hearings, on July 26, 1996, 
focusing on a constitutional amendment proposed by Congressman 
Armey. Congressmen Hyde and Istook also introduced 
Constitutional Amendments related to religious rights. None of 
these proposals were ever marked up in Committee and, in fact, 
the only House floor vote related to school prayer was over 25 
years ago in 1971.\33\
---------------------------------------------------------------------------
    \33\ 117 Cong. Rec. 39886-39958 (April 5, 1979).
---------------------------------------------------------------------------
IV. Current Law Allows Wide Toleration of Religious Practices
    Present jurisprudence with respect to the Establishment 
Clause and Free Exercise Clause already include a carefully 
balanced set of rules to try to settle the tension between a 
religious (or nonreligious) people's need to express their 
religion, and at the same time be free from a Government which 
seeks to compel religion, either religion generally or a 
particular religion. Supporters of the Congressman Istook's 
approach to amending the Constitution have repeatedly told 
stories of ordinary citizens who have been victimized by a 
state authority: bibles taken, religious expression squelched, 
songs altered, pamphlets torn up and the like. The supporters 
have used these examples as indicative of the need for an 
amendment to the Constitution that will stop such alleged 
violations.
    To the extent problems may exist in the implementation of 
what is admittedly complex jurisprudence, the answer to the 
supporters stated concerns is not another amendment to the 
Constitution, which guarantees more litigation, but rather more 
education about what the existing rules permit. Careful 
reflection upon existing rules reveals that significant 
religious activity is already permitted in this nation, both in 
and out of schools.
    In an effort to make clear what is and what is not 
permitted in the public schools, numerous religious groups 
worked together to craft Religion in the Public Schools: A 
Joint Statement of Current Law.\34\ The pamphlet explains what 
student prayers and what graduation prayers are permissible. It 
also explains that teachers may not engage in religious 
activities with their students, and explains that students may 
be taught about religion without being taught religion itself. 
The pamphlet also covers homework and religion, the 
distribution of religious literature, religious persuasion 
versus religious harassment, religious holidays, the excusal of 
students from religiously objectionable lessons, religious 
attire, moral values and the Equal Access Act.
---------------------------------------------------------------------------
    \34\ This pamphlet was drafted by the American Jewish Congress, 
American Civil Liberties Union, American Jewish Committee, American 
Muslim Council, Anti-Defamation League, Baptist Joint Committee, 
Christian Legal Society, General Conference of Seventh-day Adventists, 
National Association of Evangelicals, National Council of Churches, 
People for the American Way, and the union of Hebrew Congregations. In 
addition, the following organizations have endorsed the pamphlet: 
American Ethical Union, American Humanist Association, Americans for 
Religious Liberty, Americans United for Separation of Church and State, 
B Nai Brith International, Christian Science Church, Church of the 
Brethren Washington Office, Church of Scientology International, 
Evangelical Lutheran Church in America, Federation of Reconstructionist 
Congregations and Havurot, Friends Committee on National Legislation, 
Guru Gobind Singh Foundation, Hadassah, Interfaith Alliance, Interfaith 
Impact for Justice and Peace, National Council of Jewish Women, 
National Jewish Community Relations Advisory Council, National 
Ministries--American Baptist Churches U.S.A., National Sikh Center, 
North American Council for Muslim Women, Presbyterian Church (USA), 
Reorganized Church of Jesus Christ of Latter Day Saints, Unitarian 
Universalist Association of Congregations, United Church of Christ.
---------------------------------------------------------------------------
    Based on this pamphlet, on August 10, 1995, United States 
Department of Education Secretary Richard W. Riley sent out a 
``statement of principles'' to the nation's school 
superintendents. This statement provides school officials with 
guidance, describing the extent to which religious expression 
and activities are permitted in public schools. The statement 
goes into depth explaining that schools may not forbid students 
who act on their own from expressing personal religious views 
or beliefs solely because they are of a religious nature, and 
that schools may not endorse religious activity or doctrine, 
nor may they coerce participation in religious activities.\35\
---------------------------------------------------------------------------
    \35\ Memorandum from Richard W. Riley, Secretary, U.S. Dept. Of 
Education, Religion in Public Schools (August 10, 1995) (on file with 
Committee).
---------------------------------------------------------------------------

                      A. Religion/Prayer in School

    The Supreme Court has addressed the issue of school prayer 
numerous times, effectively holding that the Establishment 
Clause \36\ prohibits government from using the public schools 
directly or indirectly to inculcate religious beliefs. At the 
same time the Court has been careful to permit free religious 
expression and protect religious freedom. Starting with Engel 
v. Vitale \37\ in 1962 the Court struck a New York School 
Board's requirement that students join in prayer composed by 
the Regents. The Court stated that ``[g]overnment must maintain 
strict neutrality, neither aiding nor opposing religion'' and 
``it is no part of the business of government to compose 
official prayers for any group of the American people to recite 
as part of a religious program carried on by government.'' \38\
---------------------------------------------------------------------------
    \36\ Relying mostly on the Lemon test: to pass muster under the 
establishment clause, government action involving religious must be 
shown to have a primarily secular purpose, to have a primary effect 
other than the advancement of religion, and not to lead to excessive 
entanglement between government and religion. Lemon v. Kurtzman, 403 
U.S. 202 (1971).
    \37\ 370 U.S. 421 (1962).
    \38\ 370 U.S. at 425.
---------------------------------------------------------------------------
    Neither may the government sponsor or promote devotional 
exercises, teach or inculcate the precepts or prohibitions of 
any particular sect or dogma, or permit outside parties to give 
religious instruction to students during the school day on the 
public school premises. In Abingdon School District v. 
Schemp,\39\ the Court specifically disallowed State sponsorship 
of daily devotions, which involve oral readings from the Bible 
and the unison recital of the Lord's Prayer, notwithstanding 
that students who objected could be excused from participating 
and that the practices were claimed not to promote religion but 
to inculcate morality.\40\
---------------------------------------------------------------------------
    \39\ 374 U.S. 203 (1963).
    \40\ 374 U.S. at 223.
---------------------------------------------------------------------------
    Wallace v. Jaffree \41\ held the government may give 
objective instruction about religion in the public schools and 
provide for religiously neutral moments of silence, permit 
students to engage in private non-disruptive prayer during the 
school day, and pose no barrier to organized student-initiated 
religious clubs under the Equal Access Act.\42\
---------------------------------------------------------------------------
    \41\ The Court struck an Alabama statute providing for a moment of 
silence at the beginning of each school day for purposes of 
``meditation or voluntary prayer.'' The Court did not strike moments of 
silence en toto. Alabama had another law permitting a moment of silence 
for ``meditation,'' so this law, to the Court, was ``for the sole 
purpose of expressing the State's endorsement of prayer activities for 
one minute at the beginning of each school day.'' ``The legislative 
intent to return prayer to the public schools is, of course, quite 
different from merely protecting every student's right to engage in 
voluntary prayer during an appropriate moment of silence during the 
schooldays. The 1978 statute already protected that right. . . .'' 472 
U.S. 28, 49 (1985).
    \42\ Widmar v. Vincent, 454 U.S. 263 (1981) (The Court has 
permitted student initiated and student led groups to use school 
facilities for religious purposes (students at public university have 
free speech right to use campus facilities for religious meetings on 
same basis as other students).); Board of Education of Westide 
Community Schools v. Mergens, 496 U.S. 226 (1990) (extension of Widmar 
principle to federally assisted secondary schools in the Equal Access 
Act is constitutional. ``There is a crucial difference between 
government speech endorsing religion and private speech endorsing 
religion. We think that secondary school students are mature enough and 
are likely to understand that a school does not endorse or support 
student speech that it merely permits on a nondiscriminatory basis,'' 
Id. at 242).
---------------------------------------------------------------------------
    In addition, the Court has declined certiorari in Jones v. 
Clear Creek Independent School District,\43\ in which the 5th 
Circuit upheld as constitutional a school policy that permitted 
the graduating senior class to choose volunteers from among 
themselves to give ``nonsectarian, nonproselytizing invocations 
at their graduation ceremonies.'' The 5th Circuit said the 
purpose and primary effect of the policy was ``to solemnize 
graduation ceremonies'', not to advance religion.\44\ The 
policy did not endorse prayer, the court said, but merely 
passively permitted it.\45\
---------------------------------------------------------------------------
    \43\ 977 F.2d 963 (5th Cir. 1992), cert. den., 61 U.S.L.W. 3819 
(1993). However, the Court has held unconstitutional the inclusion of a 
clergy-led invocation and benediction in a public school's graduation 
ceremony, Lee v. Weisman, 505 U.S. 577 (1992), finding that ``at a 
minimum, the Constitution guarantees that government may not coerce 
anyone to support or participate in religion or its exercise, the 
prayer exercises in this case are especially improper because the State 
has in every practical sense compelled attendance and participation in 
an explicit religious exercise at an event of singular importance to 
every student.'' Id. at 587.
    \44\ 977 F.2d at 967.
    \45\ The Ninth Circuit had a contrary result in Harris v. Joint 
School District No. 241, 41 F.3d 447 (9th Cir. 1994), in which the 
court struck down a school policy that permitted the graduating class 
to determine whether or not to have an invocation and benediction and 
to choose who would deliver them, stating, ``when the senior class is 
given plenary power over a state-sponsored, state controlled event such 
as high school graduation, it is just as constrained by the 
Constitution as the state would be.'' Id. at 455. Harris was dismissed 
on technical grounds by the Supreme Court, and remanded to the Ninth 
Circuit with directions to dismiss as moot. Joint School District No. 
241 v. Harris, 515 U.S. 1154 (1995).
---------------------------------------------------------------------------
    In sum the case law indicates that the right of students to 
pray is protected. The majority would have us focus on a few 
isolated cases in an effort to demonstrate the need for a 
Constitutional Amendment allowing school prayer. A review of 
those cases is instructive.
    Often cited is the case of Kelley DeNooyer. In December 
1990, DeNooyer's parents sued officials at McKinley Elementary 
School in Livonia, Michigan after DeNooyer's teacher refused to 
allow the second grader to show a tape of herself singing a 
religious song, as part of a verbal presentation about herself. 
The teacher rejected the tape because she felt the tape would 
undermine the point of the exercise, which was to make to 
students feel comfortable giving speeches. She also said that 
the school has a policy requiring that all tapes be reviewed 
before being used in class. Finally, she felt the tape's 
religious content was inappropriate. The Sixth Circuit Court of 
Appeals ruled that public school teachers and administrators, 
not students, are the proper agents to determine classroom 
content and assignments.\46\ Thus, the case was more about 
teacher control of the classroom than religious freedom.
---------------------------------------------------------------------------
    \46\ DeNooyer v. Merinelli, 1993 U.S. App. LEXIS 30084, reh'g en 
banc denied, 1993 U.S. App. LEXIS 36723 (6th Cir. 1993), cert. denied, 
511 U.S. 1031 (1994).
---------------------------------------------------------------------------
    Another case to which the majority has sometimes referred 
is that of Brittney Settle Gossett. In 1991, Settle (now 
Gossett) sued the Dickson County Tennessee School Board after 
she was given a failing grade on a report she had written about 
Jesus Christ. The teacher had assigned each student in the 
ninth grade class to write a research paper on an unfamiliar 
topic, using four outside sources. Settle initially told the 
teacher she would do her paper on drama, but later asked to 
switch to the life of Christ. The teacher rejected the new 
topic saying Settle knew too much about it. Settle wrote the 
paper anyway and received a zero for ignoring the teacher's 
instructions. Both the federal district court and the Sixth 
Circuit Court of Appeals examined the facts and ruled in favor 
of the school, noting that Settle had no constitutional right 
to ``do something other than [the teacher's] assignment and 
receive credit for it.'' The Supreme Court denied 
certiorari.\47\
---------------------------------------------------------------------------
    \47\ Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 
1995), cert. denied, 516 U.S. 989 (1995).
---------------------------------------------------------------------------
    Brad Hicks, a former police officer in Newton, North 
Carolina was fired in April 1996 after he disobeyed the police 
chief's order to stop handing out gospel tracts while on duty. 
The police chief first learned of the problem when a woman whom 
Hicks had pulled over for speeding complained. Before being 
terminated, Hicks was placed on suspension and told he could 
keep his job if he stopped proselytizing while on duty; he 
refused.\48\
---------------------------------------------------------------------------
    \48\ Officer Who Gave Gospel Tracts to Speeders Fired, Kingston 
Free Press, April 12, 1996.
---------------------------------------------------------------------------
    Perhaps the only case to which the majority might even 
reasonably point as a case in which someone's rights were 
initially violated is a1989 incident in which Audrey Pearson's 
mother contacted the conservative legal group, the Rutherford 
Institute, after her daughter was told to stop reading a Bible 
on a public school bus in Prince William County, Virginia. The 
principal had not understood that students are permitted to 
bring religious material to school for their personal use and 
the decision was reversed when the Institute contacted the 
school. The matter never went to court. Thus, this matter was 
easily resolved by a simple phone call. A Constitutional 
Amendment appears to be overkill when a simple phone call can 
suffice to remedy a problem.

                              B. Benefits

    Generally, governments may not provide financial assistance 
to religious institutions. However, there are many exceptions 
to this rule, most of which follow the Lemon test that any 
statute that has the incidental effect of aiding religion must: 
(a) have a secular purpose; (b) have a principle or primary 
effect that does not advance or inhibit religion; and (c) not 
give rise to an excessive entanglement between government and 
religion.\49\ For example:
---------------------------------------------------------------------------
    \49\ Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
---------------------------------------------------------------------------
    Public funds may be used to: (1) transport children to 
religious schools; \50\ (2) buy textbooks for kids in sectarian 
schools, if the books are purely secular and approved by public 
school authorities; \51\ (3) pay for psychological and speech 
diagnostic services by state personnel in private schools (a 
``public health service'' that has ``little or no educational 
content''), and therapeutic and remedial education services by 
state employees off the site of the religious school; \52\ (4) 
pay for a signing interpreter to work with an eligible hearing 
impaired student at a sectarian school under the Education of 
All Handicapped Children Act, although it was important to the 
Court that the interpreter did nothing more than report what 
was said by others; \53\ and (5) construct buildings and other 
facilities at church related colleges, if it is clear that the 
construction is for facilities that will not be used for 
sectarian instruction or for religious worship.\54\
---------------------------------------------------------------------------
    \50\ Everson v. Board of Education, 330 U.S. 1 (1947).
    \51\ Board of Education v. Allen, 392 U.S. 236 (1968).
    \52\ Wolman v. Walter, 433 U.S. 229 (1977).
    \53\ Zobrest v. Catalina Foothills School District, 113 S. Ct. 2462 
(1993).
    \54\ Tilton v. Richardson, 403 U.S. 672 (1971).
---------------------------------------------------------------------------
    Public funds may not be used to (1) subsidize the teaching 
of secular subjects in religious schools (as opposed to the 
sign interpreting, for example),\55\ or (2) provide 
unrestricted maintenance and repair grants to religious 
elementary and secondary schools.\56\
---------------------------------------------------------------------------
    \55\ Lemon v. Kurtzman, 403 U.S. 602.
    \56\ Pearl v. Nyquist, 413 U.S. 756 (1973).
---------------------------------------------------------------------------
    The Court at one time had also prohibited the remedial 
instruction of special needs students (with Title I funds) in 
religious schools.\57\ This precedent, however, was overruled 
this past term by Agostini v. Felton,\58\ which held that 
federally paid public school teachers may offer remedial 
education inside parochial schools. Agostini declared Title I 
Services permissible in private religious schools because the 
instruction offered is secular in nature and is oversee by 
public school personnel.
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    \57\ Aguilar v. Felton, 473 U.S. 402 (1973).
    \58\ 1997 U.S. LEXIS 4000 (June 23, 1997).
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V. H.J. Res. 78 Would Unsettle the Law and Unbalance the First 
        Amendment
    Contrary to majority's view that H.J. Res. 78 will clarify 
and protect religious freedom, it seems far more likely to 
unsettle the law, cause confusion and result in greater numbers 
of violations of religious rights.
    A major problem with the Amendment is that it is so poorly 
drafted that no one is certain as to what it actually does. 
Even conservative Christian organizations and professors have 
voiced concerns over the language of this Amendment. In a 
letter to Chairmen Canady and Hyde, a well-known and highly 
respected conservative law professor from the University of 
Utah, Michael McConnell, recommended against adopting this 
Amendment, pointing out that it is ``questionable that a 
constitutional amendment is needed in order to achieve the 
legitimate objectives of the proposed Amendment.'' Professor 
McConnell also pointed out that ``there are serious problems 
with the drafting of this particular proposal'' referring to 
the proposal's ``confusion and ambiguity.'' \59\ The main 
question is whether or not the Amendment actually does 
anything.\60\
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    \59\ Letter from Michael McConnell, Professor, University of Utah 
School of Law to Henry J. Hyde, Chairman of the Comm. on the Judiciary, 
U.S. House of Rep., and Charles T. Canady, Chairman of Subcomm. on 
Constitution, U.S. House of Rep. (July 21, 1997) (on file with the 
Committee).
    \60\ Professor McConnell points out three major problems with the 
Amendment: (1) it is unclear to what ``the people's right to pray'' 
refers--whether this means the people collectively or as individuals or 
private groups--if the latter it is irrelevant and if the former there 
is a question as to what limits, if any, will be placed on the 
government's right to ``recognize'' religion; (2) it appears that the 
proposed protection is intended to create a right for religious speech 
that is superior to any free speech right people already have on public 
property, which would result in discrimination in favor of religious 
speech over all other speech; and (3) the relevance of the proposed 
amendment to prayer in public school is unclear--either the Amendment 
simply recognizes the same free speech rights that already exist for 
all speech or the Amendment will replicate all of the problems of 
governmental power over the content of prayer and at the same time 
allow significant classroom disruption. Id.
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    One possible interpretation of H.J. Res. 78 is that the 
language which states that the right to pray shall not be 
infringed upon may simply mean that no student may be 
prohibited from praying during lunch. In this case, the 
amendment is harmless (and meaningless) and merely ``codifies'' 
Supreme Court cases to the same effect. If the Amendment does 
anything, however, and we must assume it is intended to change 
the law in some way, its effects are clearly deleterious.

                          A. Effect on Prayer

    Because H.J. Res. 78 authorizes prayers in captive audience 
situations, it will interfere with the rights of parents to 
raise their children according to their own religious faith. 
Congressman Istook has claimed that if parents do not want 
their children to listen to prayers over the intercom, they are 
incorrectly assuming that the prayer is harmful. But that 
depends on the religion of the child and the content of the 
prayer. All prayers are not acceptable to all parents. Yet this 
Amendment would require all children, regardless of faith to 
recite a particular prayer.
    Moreover, the language of the proposed Amendment does not 
specify the time or place of the prayer. This could mean 
schools will be required to allow prayers whenever and wherever 
a student so desires. This may mean that if a student decides, 
on his or her own initiative, during the middle of history 
class, to begin praying aloud and asks others to join him or 
her, the teacher is prohibited from stopping this. In addition, 
students could be permitted to read sectarian prayers over the 
intercom system and teachers might proselytize during class 
time.
    Further, since H.J. Res. 78 is not limited to schools but 
applies to all public property, anyone would conceivably have a 
right to interrupt proceedings in connection with government 
activities such as a debate on the floor of the House of 
Representatives, an ongoing court case, or a police training 
class by praying audibly.
    The greatest problem, however, will be one of coercion. The 
Amendment clearly authorizes coercive practices. If a public 
school teacher can lead her class in a prayer before a test or 
a football player feels pressured to join in a team prayer 
before a game, that is coercion. Yet these activities are 
authorized by the Amendment. If H.J. Res. 78 becomes the law of 
the land, we can expect to see more of egregious cases like 
these:
          (1) Fellow students called a Salt Lake City sophomore 
        a ``Dirty Jew'' and ``Jew Bitch'' when she objected to 
        having to sing Christian songs in her public high 
        school choir class and at the school's graduation 
        ceremony.\61\
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    \61\ Bauchman v. Wes High School, Civil Action No. 95-4084 (1995).
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          (2) A mother in Pontotoc County, Mississippi objected 
        to her five children being subjected to school prayer 
        over the intercom and in classroom and Bible classes in 
        their public school. When her eleven year old left his 
        classroom prior to religious Bible class, his teacher 
        stated aloud words to the effect that ``David doesn't 
        believe in God. People who believe in God go to Bible 
        class--those who don't, don't go to Bible class.'' 
        Another son's teacher made him wear headphones during 
        the school's organized prayers. His classmates called 
        him ``football head'' and ``baseball head.'' \62\
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    \62\ Herdahl v. Pontotoc County School Dist., Civil Action No. 
3:94CV188-B-A (1994) (intercom and classroom prayers enjoined April 18, 
1995).
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          (3) An eleven year old Jewish student was reprimanded 
        by a teacher for not praying during a moment of 
        silence. The teacher told the student he ``should be 
        praying all the time,'' and if he did so, he might ``go 
        to heaven with all the Christians'' instead of ``going 
        [to Hell] with all the other Jews'' if he didn't pray. 
        Other students told the boy his religion was ``stupid'' 
        and another asked why they were even talking to the boy 
        since ``the Jews weren't worth saving because they had 
        killed Christ.'' \63\
---------------------------------------------------------------------------
    \63\ Walter v. West Virginia Bd. Of Educ., 610 F. Spp. 1169, 1172 
(D. W.VA. 1985).
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          (4) Two Oklahoma students who did not attend 
        religious meetings on school campus were labeled 
        ``nonbelievers'' by some of their classmates. After a 
        lawsuit, their family received threatening letters and 
        the children were called ``devil worshipers.'' The 
        family's house was also destroyed by a fire of 
        suspicious origins.\64\
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    \64\ Bell v. Little Axe Independent School District No. 70, 766 
F.2d 1391, 1396-97 (10th Cir. 1985).
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          (5) A thirteen year-old Jewish girl said she was 
        ``threatened and jostled by classmates'' after she 
        complained about Christmas decorations and religious 
        caroling at her school in Concord, New Hampshire. One 
        classmate told her ``Christmas is about peace and 
        love'' before shoving her into a locker.\65\
---------------------------------------------------------------------------
    \65\ Jewish Student Reports Threats After Complaint over Christmas, 
N.Y. Times, December 25, 1993, at A3.
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          (6) A Native American member of a high school 
        marching band objected to the practice of pre-game 
        invocations delivered at home football games. The band 
        director proceeded to lecture him on Christianity.\66\
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    \66\ Jager v. Douglas County School District, 862 F.2d 824, 826 
(11th Cir. 1989).
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    It appears that the demise of public education and the 
creation of a ``Christian nation'' are exactly what the 
religious right has in mind when advocating this Constitutional 
Amendment. Pat Robertson has spoken in favor of ending public 
education. He has stated ``[f]or all we've been getting for our 
tax dollars out of the public schools, they should have 
disappeared years ago.'' So long as we have standards that 
ensure that our goals of quality education are achieved, then 
the very idea of maintaining an antiquated and ineffective 
public education system is absurd.\67\ In fact Mr. Robertson 
has gone on to declare that because the public schools ``take 
your tax money and insist on forcing your children to learn a 
philosophy that is contrary to what you believe very deeply . . 
. then the public schools are illegal nationwide . . .'' \68\
---------------------------------------------------------------------------
    \67\ Pat Robertson, The Turning Tide 239 (1993).
    \68\ Pat Robertson, The 700 Club, (The Family Channel television 
broadcast, Nov. 23, 1982).
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    Others on the religious right agree. Reverend Jerry Falwell 
said: ``I hope to see the day when, as in the early days of our 
country, we won't have any public schools. The churches will 
have taken them over again and Christians will be running 
them.'' \69\ Randall Terry has claimed that he is ``in full 
support of Christian teachers being missionaries in public 
schools, living and testifying to Christ. However, we should 
keep our children out and ultimately seek to sink the current 
public education fiasco and replace it with voucher, parent 
choice education.'' \70\
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    \69\ Rev. Jerry Falwell, America Can be Saved 52-53 (1979).
    \70\ Randall Terry, Why Does a Nice Guy Like Me Keep Getting Thrown 
in Jail? 169 (1993).
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                         B. Effect on Benefits

    Another problem with H.J. Res. 78 is that the language 
prohibiting the government from ``deny[ing] equal access to a 
benefit on account of religion'' undercuts the Establishment 
clause entirely and would allow the government to fund 
programs, even programs with a non-secular bent, sponsored by 
religious organizations. In other words, so long as the 
government is funding an organization or activity, religious 
organizations or individuals would be entitled to receive the 
same benefits. This means that if a public school received 
taxpayer funds, so too would religious schools be entitled to 
public funds. Similarly, if a secular social service agency 
contracted with the government to perform certain counseling 
services, then a house of worship that runs a religiously-based 
counseling service would also be entitled to receive a 
government contract.
    In a March 24, 1997 press release, Congressman Istook cites 
examples of the kinds of court decisions his Amendment would 
reverse. Most are cases where governments (not private citizens 
or churches) were endorsing one religion over another, such as 
placing a city-owned cross in a park. Even religious 
conservatives have expressed concerns that this amendment would 
allow the government to slide from neutral acknowledgment to 
religious favoritism.\71\ Under the pretext of acknowledgment, 
not only could a city place a nativity scene in a courthouse, 
it could also post photos of the Dalai Lama in every classroom 
or require New Age philosophy to be taught at all grade levels. 
It would also follow, therefore, that in California, if members 
of the Wiccan religion, which practices witchcraft, proposed to 
open a pre-school, they too would be eligible to receive 
taxpayer money to run their school. In fact, in 1993, before 
the unsuccessful voter referendum on school tuition vouchers, 
one such group had already announced its intention to seek such 
support.\72\
---------------------------------------------------------------------------
    \71\ McConnell letter, supra note 59; Memorandum from Steven T. 
McFarland, Director, Center for Law and Religious Freedom (June 27, 
1997) (on file with Committee).
    \72\ Hearing on H.J. Res. 78: ``Religious Freedom Amendment'' 
Before the Constitution Subcommittee, 105th Congress (July 22, 1997) 
(statement of Rev. W. Barry Lynn, Executive Director of Americans 
United for Separation of Church and State).
---------------------------------------------------------------------------
    Similarly, two years ago, the Department of Housing and 
Urban Development used federal funds to hire Nation of Islam 
Security, Inc. to patrol public housing projects. At the time, 
several members of Congress expressed concern that federal tax 
dollars were being used to subsidize religious proselytizing by 
the Nation of Islam guards.\73\ H.J. Res. 78, however, actually 
requires the government to contract with the Nation of Islam if 
HUD grants are available to other groups.
---------------------------------------------------------------------------
    \73\ Republican Congressmen Peter King and Rick Lazio as well as 
then-Senate majority leader Senator Bob Dole all attacked the Clinton 
Administration for allowing Nation of Islam affiliated groups to 
contract with the Department of Housing and Urban Development. Charles 
v. Zehren, Farrakhan Units Probed by HUD, Newsday, January 19, 1995 at 
A8.
---------------------------------------------------------------------------
    In addition, religious organizations are sometimes exempted 
from laws that apply to others. For example, religious 
institutions can make discriminatory decisions about whom to 
hire on the basis of religion; other businesses may not.\74\ 
While restaurants and hotels have to comply with the Americans 
with Disabilities Act, churches do not.\75\ If all access is to 
be equal, then the special dispensations we allow religious 
organizations may be called into question, even nullified.
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    \74\ 42 U.S.C. 2000e-1(a).
    \75\ 42 U.S.C. 12113(c) (exempting religious corporations from 42 
U.S.C. 12182-the public accommodations portion of the American with 
Disabilities Act).
---------------------------------------------------------------------------
    Finally, once government starts funding religion, people 
will reasonably want public accountability as to how the funds 
are spent. With government funding of a school or welfare 
program run by a religious institution will come government 
entanglement and scrutiny that religious organizations are 
unlikely to welcome. Furthermore, religions will be competing 
against one another for scarce government resources. 
Governments will be forced to fund more than 2,000 religious 
denominations that exist in this country or pick and choose 
among religions, creating competition and animosity between 
religious groups.
VI. Relevance of Religious Freedom Restoration Act
    Although not directly relevant, this past term the Supreme 
Court also decided the case of Boerne v. Flores,\76\ which held 
the Religious Freedom Restoration Act (``RFRA'') 
unconstitutional. In Boerne, the Court held that Congress 
exceeded the scope of its enforcement power under section 5 of 
the Fourteenth Amendment when it created RFRA in response to a 
previous Supreme Court case,\77\ to prevent neutral laws from 
burdening religion without compelling justification. 
Congressman Istook has claimed that his amendment would remedy 
the Court's Boerne decision.
---------------------------------------------------------------------------
    \76\ ____ U.S. ____,117 S.Ct. 2157 (1997).
    \77\ Employment Div. Dept. Of Human Resources of Ore. v. Smith, 494 
U.S. 872 (1990).
---------------------------------------------------------------------------
    There are at least two responses to this argument. First, 
the Boerne decision is best remedied by statute. If Congress 
had demonstrated the ``congruence and proportionality between 
the injury to be prevented or remedied and the means adopted to 
that end,'' \78\ RFRA might not have been held 
unconstitutional. A new statute might also rely on Congress' 
spending, commerce or treaty power. Moreover, Congressmen Hyde 
and Canady are currently working on a statutory solution to the 
Boerne decision and they have previously stated that they 
believe a Constitutional amendment is premature.\79\
---------------------------------------------------------------------------
    \78\ ____ U.S. at ____, 117 S.Ct. at 2157.
    \79\ Hearing on Protecting Religious Freedom after Boerne v. Flores 
Before the Subcomm. on Constitution of the House Comm. On Judiciary, 
105th Cong. 42, 61 (1997) (statements of Subcommittee Chairman Canady 
and Committee Chairman Hyde).
---------------------------------------------------------------------------
    Second, Boerne does not involve the Establishment Clause 
(it relied on the Free Exercise Clause), which is the section 
that would be most affected by the Istook amendment. The 
solution to solving the Court's ``attack'' on the Free Exercise 
Clause in Boerne can hardly be to undermine the protections 
afforded to religious liberty in the Establishment Clause as 
the Istook language clearly does.

                               Conclusion

    H.J. Res. 78 is poor policy and poorly conceived. We would 
expect that when undertaking something as serious and 
consequential as amending the Constitution of the United 
States, at the very least the drafters would understand the 
effects of that proposed Amendment and would ensure that the 
Amendment was clear and unambiguous. We are dismayed that the 
Committee could adopt a Constitutional Amendment that the 
majority's own experts deride as ``unacceptable'' \80\ in light 
of the Amendment's glaring ambiguities and inconsistencies.
---------------------------------------------------------------------------
    \80\ McConnell Letter, supra note 59.
---------------------------------------------------------------------------
    Moreover, we are deeply troubled over the notion of 
amending the First Amendment, which has stood as a bulwark of 
our democratic system of government. The freedom of religion 
established by the First Amendment is one of the fundamentals 
on which our country was founded. Religious freedom separates 
our country from all others and has worked to protect our 
citizens' freedom for over 200 years. Now is not the time to 
alter the constitutional structure which underlies this 
freedom.
                                   John Conyers, Jr.
                                   Charles E. Schumer.
                                   Robert C. Scott.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   Robert Wexler.

        Additional Dissenting Views OF Congresswoman Zoe Lofgren

    For over 200 years, the First Amendment has guaranteed 
Americans the freedom to practice their various religious 
beliefs, free from both government establishment of religion 
and government interference in its free exercise. The current 
proposal tampers with those freedoms, with unpredictable 
consequences.
    Our current system has given us a country that leads the 
world in religious freedom. The First Amendment originated as 
part of the great American experiment in democracy. It has been 
successful beyond the dreams of the founders. Far from needing 
modification, the First Amendment deserves our continuing 
support.
    The First Amendment to the United States Constitution ranks 
with the Magna Carta, the Declaration of Independence, and 
other major documents through which mankind has attempted to 
govern itself. It is remarkable that some apparently believe 
that we can better the works of the founding fathers of this 
country and the tested wisdom of 200 years of freedom, and 
craft a better First Amendment that the one that currently 
graces our Constitution and our nation.
    I pray that the United States Congress will have the good 
sense not to interfere with our successful scheme of religious 
freedom under law.

                                   Zoe Lofgren.