he House Constitution Subcommittee will again be taking up the controversial Religious Freedom Amendment, (H.J. Res78), proposed by Rep. Ernest Istook, on Thursday, October 23, 1997. Legislative alerts note that no other business is before the Subcommittee which means that the measure could be "fast tracked" for a quick vote in the House of Representatives.

    The proposed amendment is brief, well-crafted, and has serious consequences for the First Amendment separation of state and church in America. This version reads:

    "To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The government shall not require any person to join in prayer or other religious activity, proscribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion."

   Although mixing prayer in the affairs of government -- and, in particular, returning the prayer ritual to the public schools -- has been a major objective for modern religious right groups, that effort has enjoyed little success. Supreme Court decisions in the early 1960s such as ENGLE v. VITALE, MURRAY v. CURLETT and SCHEMPP v. ABINGTON TOWNSHIP SCHOOL DISTRICT helped to end, in theory anyway, Bible recitation, prayer chanting and other forms of coercive religious ritual in public schools. Religious groups fought this trend, in part, by proposing so-called "voluntary prayer" amendments. Various forms of this legislation grudgingly conceded that while students should not be "forced" to participate in the prayer, or even given the "option" of leaving the classroom while the prayer was being recited, some form of religious ritual should be permitted. Courts have taken a dim view of these disingenuous proposals, though, noting that especially in the lower grades and even in high school, students who chose to not pray were subject to ostracism, marginalization and even physical violence. Atheists noted that permitting prayers from "minority faiths" or scams like the "moment of silence" -- presumably, silent meditation to a deity -- was simply a form of stealth religious ritual, and still did not address the basic problem with prayer, or the deeper constitutional issues involved.

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"Following the 1994 elections, the Coalition was generally recognized as a major player on Capitol Hill and inside Republican Party politics..."

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    The rise of the modern religious right -- its "second wave" form embodied in politically active groups like the Christian Coalition -- re-ignited efforts to pass some form of school prayer amendment. The CC emerged as a central force in this debate, and staked out an ideological and political position different from its predecessors in the sixties, seventies and into the 1980s who had carried the banner for "voluntary prayer." Insisting that government had become "hostile to the people of faith" (Ralph Reed, Pat Robertson), the Coalition and its allies framed the school prayer debate in a larger context, that of so-called "religious liberty" or "religious freedom." Mr. Reed set the new clarion call for the religious right when he insisted that "People of faith have grown increasingly distressed by the hostility of public institutions toward religious expression. The erosion of the time-honored rights of religious Americans has been abetted by a court system which stands the plain meaning of the First Amendment on its head..."

    For the Coalition and other religious right activist groups, bringing back some form of school prayer required two things. First was a "linkage" to other state-church separation issues, such as display of nativity creches and other "sacred symbols" on government land (misleadingly termed "the public square.") Second was the realization that no school prayer law would likely pass constitutional muster; despite cracks in the "wall of separation," legal standards involved in the crucial LEMON case (which required a government neutrality in matters of religion) would probably strike down any legislative remedies. Only a full, constitutional amendment would suffice.

    Following the 1994 elections, the Coalition was generally recognized as a major player on Capitol Hill and in Republican politics. Christian evangelicals and fundamentalists had been mobilized in increasing numbers to where that segment of the society was one of the most active voting blocks. Over 75,000 participating churches had distributed the CC's questionable "voters guide" (that number escalated to 125,000 in just the last election.) The Coalition also could take credit for handing control of the both the U.S. House of Representatives and the U.S. Senate to the Republican Party for the first time in forty years. The GOP's "Contract With America" took off; and the Coalition soon crafted its own social-agenda version which it labeled, "The Contract With The American Family." It called for a wide, activist role for the state in defending "family values," including legislation against abortion rights, curtailing gay rights, and returning prayer to the schools and public square. The latter was to be achieved through what the Coalition proposed as the "Religious Equality Amendment."

    Several factors, though, worked against the passage of the RFA. Americans, and many Republicans inside the beltway were enthused about the economic agenda in the "Contract With America," but less invigorated about the social programs of religious right groups. People were more receptive to tax cuts than they were to discomforting and divisive issues such as ending abortion. In addition, some religious groups could not support the original Religious Equality Amendment. A split in religious right groups soon emerged, with some organizations like the Family Research Council taking the position that RFA was simply not sufficient to achieve their objective of a greater involvement of religion with government. Competing versions of the RFA soon emerged.

    Attempts to compromise these versions has met with limited success. Last July, a "fusion version" was introduced by House Majority Leader Dick Armey and re-packaged as the Religious Freedom Amendment. It picked up the lukewarm support of House Judiciary Committee Chairman Henry Hyde, who had supported earlier competing versions. Despite efforts to "fast track" the measure, it never cleared committee for a floor vote.

    The present version before the House Judiciary Committee enjoys more support among the different religious right groups than previous efforts managed to achieve. This version has been amended; and both supporters and critics note that the present wording is artfully constructed, deceptively simply, and stands a better chance of surviving the Capitol Hill grist mill than its predecessors. One crucial piece of phrasing speaks of denial of "equal access to a benefit." Those words would essentially legitimize government funding of religious groups and "faith based" outreaches. When combined with other provisions of the Act, the RFA would "gut" the Establishment Clause of the First Amendment and reduce state-church separation to the "one-directional" function envisioned by Reed, Robertson and others whereby government would never interfere in the "practice" of religious groups, regardless of effects.

   Should the RFA clear the Judiciary Committee as expected, it would still have a rough road ahead first in the House, then in the Senate. It would then have the arduous task of winding its way through the respective state legislatures for the necessary ratification. Even so, getting the Religious Freedom Amendment onto the floor of the House and Senate serves a secondary purpose, explicitly mentioned by Christian Coalition strategists. It would put incumbent Representatives and Senators "on the record" where their votes could be used in the 1998 and 2000 elections as being "for prayer" or "against religious faith."

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