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Top: Jewish Founded Organizations: ACLU: School Prayer Comment by ACLU Executive Director

Jew Watch Comment:

The nature of the comment by the ACLU Executive Director is anti-religious although it uses the fraudulent phrase, "religious freedom" throughout. This is fraudulent, because the ACLU position is to deny religious freedom in public schools by denying prayer in schools. Christians are between 75%-90% of the American Public. The ACLU stance is 75%-90% anti-Christian in aspect....

--Jew Watch

This page appeared at aclu.org at http://www.aclu.org/congress/lg030298b.html March 6, 2022

March 2, 2022

On March 3, 2022 the House Judiciary Committee is scheduled to mark up H.J. Res. 78, Representative Istook's "Religious Freedom Amendment." The ACLU urges you to strongly oppose H.J. Res. 78. We believe that H.J. Res. 78 would jeopardize, rather than guarantee, religious freedom. In addition to the substantive concerns we have outlined in previous discussions with you and your office, we are offering this additional summary in preparation for tomorrow's mark-up.

Prayer and Religious Expression

The courts continue to uphold religious freedom, making a constitutional amendment unnecessary and duplicative. Recent court decisions have reaffirmed the right of citizens to erect religious symbols in public areas and to have access to public facilities for religious activities. Students have the right to pray, read the Bible, and distribute religious materials to their friends. H.J. Res. 78 would go much further and would permit organized prayer and other sectarian activities in the public schools. Any student would have the right to lead the class in prayer or other form of worship, because the school would not be able to "discriminate" against the student's religious expression or exercise. The amendment would also permit a teacher to join in the religious worship, because any attempt to prohibit the teacher could be deemed "discrimination" against the teacher's religious expression or beliefs.

The Constitution currently respects religious belief as a deeply personal matter. Under this Amendment, parents could no longer be certain that the religious beliefs, ideas, and modes of prayer taught in the home would not be undermined at public school. Whether a student is ostracized for refusing to participate in the prayer of the majority, or pressured to participate to avoid ridicule by other students, organized public school prayer would burden the religious liberty rights of individual students. The phrase protecting "[t]he people's right to pray and to recognize their religious beliefs, heritage or traditions on public property" would appear to permit a judge or jurors to lead the courtroom in prayer and legislators to declare the United States a "Christian nation." So long as the government did not compel joining in prayer or try to enforce its declarations through coercive measures, it could publicly endorse one religion and disparage others at will. The possibility of this result is reason enough to reject the Amendment -- the US Constitution cannot protect religious freedom for some while denying that same liberty to others.

Government Funding and Endorsement of Religion

The Amendment would mandate that the government directly fund religious schools, houses of worship, and other "pervasively sectarian" institutions that cannot be funded under current law. See Bowen v. Kendrick, 487 U.S. 589, 612 (1988). If a government entity denies funding based on the pervasively sectarian nature of an institution, the religious group could then claim "discrimination" under the Amendment based on "religious belief, expression, or exercise." The religious institution could also claim that they were denied their constitutional right to "equal access to a benefit." The key to understanding the force of the amendment lies in the use of the term "person," which will not simply mean "an individual." The term will also refer to "person" in the corporate sense under constitutional law, and thus will apply to groups of people, such as religious congregations and organizations. H.J. Res. 78 would bring us well beyond the school vouchers debate, and permit the direct government subsidization of parochial schools -- without even the pretense of vouchers. It would also allow religious ministries to seek taxpayer funds for advancement of their religious mission.

The Founders knew of the dangers of allowing the government to promote selected religions over others. Because of that concern, the Establishment Clause of the First Amendment prevents the government from funding religious ministries or entangling the government in the affairs of religious institutions. These constitutional safeguards provide religion with a great degree of autonomy from the influences of government. This autonomous status has allowed religion to flourish in our nation. These same principles dictate that the government should not use its "power of the purse" to favor certain religions over others. Thus, the Establishment Clause prohibits the government from funding sectarian institutions in order to further a particular religious mission. H.J. Res. 78 would overrule this fundamental provision of the Bill of Rights.

Government Regulation and Entanglement

The Amendment would remove religion's special autonomous status under the Constitution and inject the influence of government funds into our nation's houses of worship. Of course, the government money will come with the necessary and usual government oversight and restrictions. Current constitutional standards prohibiting "excessive entanglement" between church and state would be overridden, allowing the government to directly regulate the activity of religious institutions. Religious groups will then be forced to behave like government agencies, battling each other for scarce government funds.

The Amendment Process

Amending the Constitution is always a serious undertaking. It should be reserved for those rare instances where there exists a compelling need to establish rights that cannot be secured by other means. Moreover, it must not be done in a manner that expands the rights of some individuals by diminishing the constitutional rights and protections presently afforded all individuals under the federal Constitution. In our analysis, the proposed "Religious Freedom Amendment" fails to satisfy these standards and, accordingly, we are forced to oppose H.J. Res. 78.

Although, to some, the language of the H.J. Res. 78 may appear innocuous at first glance, it would operate to weaken, if not nullify the meaning of the Constitution's Establishment Clause. Proponents of the constitutional amendment will likely claim that the proposal is only intended to bolster individual religious freedom. Indeed, the protection of individual religious liberty is something that we strongly support; however, amending the constitution is not necessary.

Language and Judicial Interpretation

Finally, it is important to note that the language of the amendment is poorly written, and in some places, contradictory. The complexity of the language of H.J. Res. 78 would call for extensive judicial interpretation. At the very least, it will seriously complicate the landscape of church-state law, and provide each side of the litigation with numerous new arguments. This amendment does not give any clear direction to courts, and would therefore allow the Supreme Court excessive leeway in the area of church-state relations.

The ACLU firmly believes that H.J. Res. 78 would have the effect of moving this country ten steps back instead of ten steps forward in our journey toward securing religious freedom for all Americans.

Thank you for your attention to this matter. Please to do hesitate to contact us if you need further information.


Laura Murphy
Executive Director

Terri Schroeder
Legislative Analyst

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