Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 18, 1995 TAG: 9506170014
SECTION: EXTRA PAGE: 1 EDITION: METRO
SOURCE: CODY LOWE
DATELINE: LENGTH: Long
Testimony last weekend before the Constitution subcommittee of the House Judiciary Committee provided a glimpse into the most egregious violations of religious liberty in the country.
Witnesses described public-school students denied the right to say prayers over their lunches; students arrested for praying before school; students told they can't read the Bible during free time; a federal judge's threat to jail students who might dare to utter the name of Jesus - or any other deity for that matter - at a high-school graduation.
They are the kinds of stories that make the blood boil, that make you want to do something to straighten out the idiot judges and school administrators who instigate such violations.
What the majority on the Judiciary Committee wants to do is write an amendment to the Constitution that will clarify the ambiguity that now surrounds the First Amendment.
The First Amendment - declared a flawless gem by numerous witnesses and the members of the committee - nevertheless needs a little refinement on the subject of religion, the majority says.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In the last 30 years, those two clauses - the first words of the First Amendment - have caused confusion in courts and classrooms around the country.
The most dramatic problems are the ones associated with the "free exercise" clause. Those are the ones where students are not allowed to read their Bibles on a school bus, or when a child is told he cannot write about Jesus for a theme on the "most influential person in my life."
Religious liberty legal-defense groups around the country can report hundreds - maybe thousands - of such incidents where misinformed and overcautious school administrators violate the religious rights of students. Most of those, however, are fairly easily remedied - when school officials are reminded by a lawyer that students don't give up their religious freedoms at the classroom door. Those violations are contrary not only to the clear meaning of the Constitution but also to recent U.S. Supreme Court decisions on the subject.
The more difficult problem, it seems to me, lies in the establishment clause. It is tough, sometimes, to judge when government - in the words of one legal test - becomes "excessively entangled" with religion to an extent that gives advantage to one religion over another or implies governmental endorsement of one religion.
It is the establishment clause that is invoked when the courts decide a municipal government cannot put up a creche on a courthouse lawn at Christmas. It is the establishment clause that prohibits a teacher from leading a prayer in a public-school classroom every morning. It is the establishment clause that prevents "state prayer" from being printed on a highway department road map. It is the establishment clause that prevents tax money from going to support parochial schools.
The tricky part is finding the dividing line between behavior that is tantamount to government-imposed religion and behavior that simply accommodates the religious expression of citizens. Does a student-body vote on whether to have a prayer at graduation amount to an establishment of religion? At least one court thinks so. Is the sanction of the state implied if a student uses the school public-address system to say a prayer? Again, at least one court has thought so.
Unfortunately, those kinds of problems are unlikely to be resolved with a new amendment.
Even if such an amendment - yet unwritten - were to have language guaranteeing that the reasonable accommodation of religion by government does not violate the establishment clause, there will be other challenges.
The Constitution subcommittee has declared its loyalty to the First Amendment. Committee members do not want any part of it overturned, they say. So, if the First Amendment remains fully in effect, at least some problems with the establishment clause will remain.
Can an amendment be written to cover every potential problem? No. Will the courts continue to issue conflicting and confusing decisions? Yes. Will a new amendment be subject to the courts' interpretations? Yes.
The easiest resolution would be for the Supreme Court to issue comprehensive decisions that clarify the issues that are causing so much trouble. It has not seen fit to do that so far. And we cannot force the court to address those issues. That is part of what causes so much frustration.
The second-best solution, I believe, would be for other states to follow Virginia's lead in producing a clear, objective summary of the law specifically for school administrators. We might even take the initiative to produce another similar document for local government. There are dangers in this course as well, but the proposed guidelines now being studied here prove it can be done.
In our zeal to do something about the inanities we see around us, we must be careful not to inadvertently make the problem worse. No reasonable person wants to create a climate in which members of minority religions are relegated to second-class citizenship. No reasonable person wants his or her children to be force-fed religious dogma from a public-school teacher. No reasonable person wants to be compelled to listen to indoctrination from a religion he or she abhors.
Religious freedom should be a matter of respect. I must respect your right to hold whatever religious beliefs you want, including no religious beliefs at all - even if I believe my religion is the only correct one and that you'd thank me for sharing it with you.
Though I shouldn't be allowed to harass you with my religion, I must be allowed to freely discuss it in public. Though the state shouldn't teach my children how to pray, it must allow them to pray if they want to.
All of that is covered by the very good First Amendment we have now. It may not be perfect. It certainly was not written with all of today's complications in mind. But it has served us well, and it is perfectly capable of addressing all the issues invoked to support the proposed "religious equality amendment."
by CNB