Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Equality or Establishment?

James Skillen


March 31, 1997

Here we go again! Rep. Ernest Istook (R-Okla.) is proposing a constitutional amendment to clarify the First Amendment's guarantee of religious freedom. His Religious Liberty Amendment is slated to be introduced in the House after the Easter congressional recess. The Supreme Court's notorious inconsistencies on church-state issues and the persistent efforts by some government officials to chase all religion from the public square give ample reason for sweeping action to secure religious rights. But the remedy Istook is proposing now is just as bad as the one he proposed in the last Congress.

Istook's brief amendment aims to open up the public square to the expression of faith by emphasizing the right of citizens "to pray or acknowledge religious belief, heritage or tradition on public property, including public schools." The rest of the amendment forbids government compulsion in school prayers and government discrimination on account of religion.

The basic goal is right. Government should not penalize religious belief or hamper its expression. Even more: government has an affirmative duty to accommodate and respect the beliefs of every citizen and the practices and organizations in which those beliefs are embodied. That's the intent of the twin religion clauses of the First Amendment. If courts and officials persistently distort that meaning, a restatement in the Constitution itself could be the remedy.

But Istook's amendment takes us down the wrong track. Americans hold a diversity of religious beliefs, heritages, and traditions. If government tries to enable citizens to acknowledge their faith in public (government) institutions it will have to either em-brace the faith of the majority or devise some common-denominator belief. There is no other way to reconcile diverse views and unitary institutions. Yet establishing a majoritarian faith violates the Constitution and should bother everyone for whom religion is more than a popularity contest. The civil religion alternative also violates the First Amendment and should horrify everyone whose god isn't religion in general.

There is a better way. Rep. Henry Hyde (R-Ill.) championed it in the last Congress against the earlier version of the Istook amendment. Hyde's Religious Equality Amendment affirmed that government must not discriminate against citizens or groups on account of their religion, and it emphasized that the no-establishment requirement does not justify such discrimination. Government may not exclude religious groups or ideas from public places or act against religion in distributing benefits—as in funding only secular schools at the expense of those founded on some religious belief. Diverse faiths require pluralist policy.

Hyde's amendment rightly emphasized that government must be neutral and accommodating in the face of citizens' diverse faiths. Istook's approach, both in his earlier amendment and in the new version just about to be introduced, tends toward a government establishment of religion. But no matter how confused the courts are about faith, we shouldn't want the many governments scattered across this land to establish one kind of religion in one place and another kind in another place to mirror the diverse religious majorities that comprise our nation.

Neither should we find acceptable fevered attempts by public officials to craft prayers and other religious practices acceptable to believers of every faith. When a Midwestern state university tried to do that a few years ago at a conference that drew participants from a wide range of faiths, the resulting lunch-time prayer was so nondescript that even false gods must have spewed it out in disgust.

Government should honor faith by accommodating the diverse commitments of citizens. Istook's amendment will not lead to that. Where are you when we need you, Rep. Hyde?

—Stanley Carlson-Thies, Senior Fellow
   Center for Public Justice

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”