wfn.org | NCCCUSA TESTIMONY ON “RELIGIOUS FREEDOM AMENDMENT”

[CAROL_FOUKE.parti@ecunet.org]

National Council of the Churches of Christ in the U.S.A.
Contact: Carol J. Fouke, NCC, 212-870-2252
Internet: carol_fouke.parti@ecunet.org

SUMMARY OF TESTIMONY
ON THE PROPOSED RELIGIOUS FREEDOM AMENDMENT
Presented before the House Subcommittee on the Constitution
July 23, 1996

by Rev. Oliver Thomas
Special Counsel for Religious and Civil Liberties
National Council of the Churches of Christ in the U.S.A.

The last thing America needs is a new First Amendment.  A stronger role for
religion in public life?  Yes.  A fairer and more respectful treatment of
religion in public schools?  Certainly.  But, a new constitutional amendment
on religion?  God forbid.  Passage of this latest amendment to the First
Amendment is the most liberal -- most radical -- thing this Subcommittee could
do.

1.  No one really knows what the  proposed amendment means or would be
interpreted by the courts to mean.  It has taken 200 years for the Supreme
Court to arrive at some reasonable understanding of the 16 words that comprise
the Religion Clauses.  Imagine how long it would take for lawyers and judges
to decide the meaning of these 65 words.

2.  By mandating equal treatment and prohibiting discrimination based on
religion, the proposed amendment could undermine religious exemptions and
preferences including such key religious liberty provisions as the Religious
Freedom Restoration Act.  Every accommodation for religion (e.g. an exemption
for conscientious objectors from Selective Service laws) is also an act of
discrimination "on account of religious belief" against everyone else.  The
proposed amendment could render all such accommodations void.

3.  A guarantee of equal "benefits" could easily be interpreted to include
education.  The result would be the largest unfunded mandate in history.  It
is no secret that many of the proponents of this amendment would try to use it
to obtain public funds to send their children to private religious schools. 
Aside from the fact that the majority of Americans oppose taxing people for
the support of religion, a constitutional mandate of equal funding for public
and parochial education could bankrupt most local school systems.

4.  Because the U.S. Code defines "person" to include organizations, this
amendment would require massive subsidies for the most sectarian organizations
and activities.  Current barriers against funding "pervasively sectarian"
organizations and activities would be eliminated by this amendment.  As a
result, every religious school (e.g. Bob Jones University) and organization
(e.g. Branch Davidians) would be eligible for government funding.

5.  The provision prohibiting any discriminatory action against a person based
on religion could roll back the school prayer decisions of the 1960s.  There
is nothing in the amendment to prevent a public school teacher, principal or
superintendent from leading students in prayers and other religious exercises
as long as they are not coercive.  If one could speak about the weather, one
could proselytize.  As a result, each school district would become a battle
ground where religious groups contend with one another for dominance in the
classroom.

TESTIMONY ON THE PROPOSED RELIGIOUS FREEDOM AMENDMENT
Presented before the House Subcommittee on the Constitution
July 23, 1996

by Rev. Oliver Thomas
Special Counsel for Religious and Civil Liberties
National Council of the Churches of Christ in the U.S.A.

I am Oliver Thomas, Special Counsel for Religious and Civil Liberties to the
National Council of the Churches of Christ in the U.S.A. (NCC).  The NCC is
the preeminent expression in the United States of the movement for Christian
unity.  Its 33 Protestant and Orthodox member communions, to which 52 million
people belong, work together and with other church bodies, to build a wide
sense of Christian community and to deepen the experience of unity.  While I
do not purport to speak for all members of the communions constituent to the
National Council, I do speak for our policy-making body, the General Assembly,
whose 270 members are selected by those communions in numbers proportionate to
their size.

As the nation's largest ecumenical body, the NCC has a particular interest in
religious liberty.  We believe that true religious freedom depends upon a
rigorous enforcement of both the Establishment and Free Exercise Clauses.

The government should not promote religion.  It violates conscience and hurts
the very faith it is intended to help.  One need only travel to Europe to see
the deleterious effect government support has on religion.  There is tax
support for the clergy and state-sponsored prayer in the schools, but the
churches are empty.

At the same time, government should work diligently to ensure that citizens
are secure in the exercise of their faith.  For that reason we joined with our
colleagues on this panel -- and on the previous one -- to work for passage of
the Equal Access Act and the Religious Freedom Restoration Act (RFRA) as well
as for the release of the Presidential Directive on religion and public
education.  Along with Dr. Charles Haynes at the Freedom Forum First Amendment
Center at Vanderbilt University, we are working with hundreds of school
districts to ensure that religion is treated fairly and respectfully by the
government.

For these reasons, I commend you and your Subcommittee for your leadership on
behalf of religious liberty.  By passing the Religious Freedom Restoration
Act, you gave the nation the most fulsome protection for religion since
passage of the First Amendment.  By convening this and similar hearings you
keep the issue of religious liberty on the hearts and minds of the American
people, and that is good.

But, while I commend your zeal for liberty and your passion for religious
faith, I must warn you that the proposal you are considering today is fraught
with problems.  So much so that to pass this measure would diminish -- not
expand -- the exercise of religious faith.

The last thing America needs is a new First Amendment.  A stronger role for
religion in public life?  Yes.  A fairer and more respectful treatment of
religion in schools?  Certainly.  But, a new constitutional amendment on
religion?  God forbid.  Passage of this latest amendment to the First
Amendment is the most liberal -- most radical -- thing this Subcommittee could
do.

A. Constitutional Amendments

First, there is the problem with all constitutional amendments.  They are
broad, They are general.  They are risky.

While statutes can be drafted with great specificity, constitutional
amendments frequently cannot.  As part of the broader legal/social compact,
they speak in what the Supreme Court has called "majestic generalities" that
must stand the test of time.  Decades pass before the true meaning of the
amendment can be deciphered by the courts.  Often we are surprised by their
interpretations and wonder how they could have strayed so far from what we
understood the language to mean.  For that reason, constitutional amendments
are a matter of last resort -- to be utilized only when all else has failed.

But, has all else failed ?

A close examination of the arguments in favor of amending the First Amendment
reveal that the problem -- to the extent there is one -- lies with an
occasional lower court decision or the decision of a local legislative body
such as a school board.  A radio station is told that it does not qualify for
public funding because it broadcasts one hour of religious programming.  A
student is told she may not do a research paper on the life of Jesus.  An
employee is told she may not wear religious garb in the work place.

While such decisions are cause for concern, they do not point to a
constitutional amendment.  To the contrary, such matters are best addressed
through the appeals process or through corrective measures at the state or
local level.  For example, the Tennessee School Boards Association (which
defended the school in Settle v. Dickson County School Board) at its Summer
Law Institute last Friday advised its members to permit students to do
research on explicitly religious topics as long as students meet the academic
criteria.

Recent Supreme Court decisions (e.g. Rosenberger and Pinette) confirm that
equal treatment (and in some cases equal funding) for religious speech and
ideas already is guaranteed under the Constitution.  In fact, the First
Amendment together with the Religious Freedom Restoration Act guarantee that
religion will be accommodated in all but a handful of cases.  Given the
overall favorable state of the law, Congress should avoid the risks associated
with a proposed amendment whose true meaning will not be known for years.

B.  Effect on Religious Exemptions and Preferences

Among the problems associated with the proposed amendment is the likelihood
that it would undermine countless religious exemptions and preferences in
state and federal law including the Religious Freedom Restoration Act.  The
language of the proposed amendments though seemingly "pro-religion" could be
used by nonreligious people to nullify key statutory protections for religious
freedom. Exemptions from Title VII, Title IX, the Internal Revenue Code, the
Selective Service Act, the Americans with Disabilities Act and the Lobby
Disclosure Act are among the federal laws that could be affected.  The same is
true of hundreds of state and local exemptions including those from property
and sales taxes.

Even more problematic would be the effect on the Religious Freedom Restoration
Act.  The proposed amendment could have the unintended effect of nullifying
every accommodation required by RFRA.

For example, in the hundreds of "dry" counties where wine is illegal, a church
can easily obtain an exemption under RFRA.  A similar exemption is available
from laws against the consumption of alcohol by minors.  But, under the
proposed amendment, nothing would prevent an atheist from challenging this
accommodation of religion as discrimination against non-Christians (i.e. "any
person") "on account of religious belief, expression or exercise."

The proposed amendment places no limits on which or on whose religious beliefs
may give rise to a cause of action.  And, while the atheist has no religious
beliefs of his own, if a Roman Catholic can obtain wine and he cannot, clearly
he is being discriminated against on the basis of someone's religious beliefs
or exercise.

We know that a Sabbatarian cannot be forced to choose between her religion and
her unemployment compensation benefits.  (See Sherbert v. Verner)  For that
reason, she may refuse employment that requires her to work on her Sabbath
without being penalized.  But, what of the man who likes to fish on Saturdays?
 Must we pay his unemployment benefits if he refuses Saturday work?  No.  The
First Amendment protects claims of conscience, not mere preference.

But, under the proposed amendment, our fisherman just might prevail.  Isn't he
being discriminated against based on a religious belief?  Preferring one
person because of religion is necessarily discriminating against another
because of religion.  Although some might consider this interpretation
far-fetched, it is corroborated by the memo of the Congressional Research
Service dated February 14, 1996.

Obviously, this could be a huge problem.  Every accommodation provided by RFRA
could be subject to challenge under this amendment.  Because the amendment
only guarantees "equal" treatment, it actually provides an inferior remedy to
RFRA which requires accommodation absent a compelling government interest.
A baseball cap is not a yarmulke, and a church is not a dry goods store. 
Religion is different.  That's why the framers gave us not one but two
religion clauses.  Any constitutional provision that diminishes the uniqueness
of religion should be suspect.  Otherwise a synagogue may find itself having
to hire a Baptist rabbi.

C.   The Problem With "Benefits"

A blanket prohibition against a denial of "benefits" based on religion raises
an important question.

What is a "benefit"?

If prisons provide Muslims, Christians and Jews a chapel for religious
services, must they provide comparable facilities for white supremacists,
Satanists and other religious groups that may jeopardize prison safety and
security?  Such groups are now subject to the compelling interests of the
Department of Corrections, but would they be under this amendment?

Would the amendment require an equal number of chaplains for every conceivable
religious group in prisons, hospitals and on military bases?

Most problematic is the prospect that "benefits" would be construed to include
educational benefits.  If this were the case, the amendment would be the
largest unfunded mandate in history.

It is no secret that many of the proponents of this amendment would try to use
it to obtain public funds to send their children to private religious schools.
 At the very least, claims could be made for a variety of services such as
athletic programs that are now unavailable for those who are not enrolled in
public schools. Aside from the fact that the majority of Americans oppose
taxing people for the support of religion, a constitutional mandate of equal
funding for public and parochial education could bankrupt most local school
systems.

D.    Subsidies for Religious Organizations

Because the Dictionary Act (1 U.S.C. Section 1(b)) defines "person" to include
organizations, the proposed amendment would require massive government
subsidies for the most sectarian organizations and activities.  Under current
law, "pervasively sectarian" organizations such as local churches and
theological seminaries are disqualified from receiving government funds. (See
e.g. Bowen v. Kendrick)  Religious organizations that are not pervasively
sectarian may receive government funds, but the funds must be used for a
specific nonreligious purpose such as food, clothing or medical care.

All of this would change under the new amendment.  But, it wouldn't just be
the Billy Grahams and Mother Teresas of the world who would qualify for this
funding.  Every religious kook and crackpot in the country would have his hand
out.

Bob Jones University would be entitled to the same government grants as the
University of Florida.  Jerry Falwell's Old Time Gospel Hour to the same
benefits as WAMU.  A pregnancy prevention program run by the Unification
Church could proselytize on the government's nickel under the Adolescent
Family Life Act if this amendment were adopted.

E.  School Prayer

The language prohibiting any discriminatory action against a person based on
religion would appear to roll back the school prayer decisions of the 1960's. 
The term "person" certainly would include a teacher in a public school. 
Therefore, a teacher could engage in a variety of religious speech and
activities (i.e. "expression or exercise") in the presence of her students. 
There is nothing to suggest she could not lead the children in prayer and
other religious activities as long as she was not; coercive (i.e. as long as
the activity was not compulsory).  The same would be true for the principal,
superintendent and guest speakers.  If one could speak about the weather, one
could proselytize.  The result would be a complete circumvention of Supreme
Court decisions that the American people and most religious organizations
overwhelmingly support. 

Although some might argue that Justice Kennedy's opinion in Lee v. Weisman
suggests that the prohibition against "coercion" might still preserve the
school prayer decisions, this is far from certain.  To the contrary, the
majority opinion is based on a construction of the Establishment Clause whose
primary function is to keep the government from promoting religion, not of a
Religious Equality Amendment whose primary purpose is to ensure that religious
expression and activities are in no way discriminated against.  In fact, the
preamble of the proposed amendment explicitly states that it is intended to
clarify the interpretation of the Establishment Clause as it pertains to
school prayer.  Given that Lee v. Weisman (1992) is the only Supreme Court
decision of this decade dealing with school prayer, it is highly unlikely that
its strict interpretation of coercion (which was criticized by four of the
Justices) would become the standard for interpreting this new amendment whose
express purpose is to temper the constraints of the Establishment Clause.

Ironically, this amendment comes at a time when we are finally making genuine
progress on the treatment of religion in public schools.  This amendment would
destroy that progress by pitting America's many religious groups against one
another as each seeks dominance in a particular school district.  The result
would be to subject our most basic constitutional freedom, freedom of
religion, to the will of the majority.

Conclusion

Last Sunday I was preaching the second of two services at a small Baptist
church at the foot of the Smoky Mountains when, out of curiosity, I asked the
congregation what they would like the government to do for religion.  Not a
scientific poll, I admit.  But, if you want to know what folks are thinking in
the heartland, why not ask?

"What should the government do for religion?"

An older member of the church rose to his feet and spoke the words that I, and
this Subcommittee, needed to hear.

"Leave it alone."

And, all the people said, "Amen."

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