Statlib2.jpg (3079 bytes) Lady Liberty: Half Dead?
Thoughts on the Possibility of a Religious Liberty Amendment

By Larry Pahl
Instructor in Political Science
Rock Valley College
May 19, 2000

Mr. Pahl would like to thank his student researchers for their part in this essay.  Their names are purposely left out because written permission to use them on the web was not obtained.

The clamor for a religious liberty amendment to the US Constitution has arisen for good cause. Morality is on the decline, as is public recognition of Christianity, the tacit "official" religion of the US. Stories of Christian students suffering persecution in public settings are numerous, symptomatic of a political correctness that says religion is hateful. And perhaps most of all, the Supreme Court has removed the noblest gem in the American panoply of rights, the free exercise of religion, through its 1991 Smith decision.

Supporters of the amendment say it would go a long way toward solving these problems. It would give traditional Christianity a governmental "shot in the arm," something that might help stop our national moral decline. It would protect the religious rights of the students now suffering persecution at the hands of misinformed administrators. And it could restate the First Amendment’s free exercise clause in such a way that the current Supreme Court would have to honor it.

As a political issue the push for a religious liberty amendment could be a rallying point for a rebirth of America’s commitment to the powerful religious protections which our Founders placed in the First Amendment’s Establishment and Free Exercise clauses. Those mighty guarantees of freedom have, through centuries of reinterpretation at the hands of activist courts, been so stripped of their original promise as to be inert.

The decision to move ahead with a religious liberty amendment as a way to return to the Founders visions of liberty is, however, a delicate one. A skilled surgeon only decides to operate when no other method of treatment offers promise of healing. Should the surgeon’s scalpel be entered into the near-holy fabric of the world’s oldest and most praised civil constitution? The question is as radical and important as the decision of Madison, Jefferson and other evangelists of liberty to attempt to separate the church from the state in the infant American nation. Madison called it an "experiment." It had been done nowhere else in the long history of this world. The notion of a king and his power being distinct and separate from a pope, priest and pastor was unheard of in history’s annals.

Yet the American "experiment" has proven itself to be the world’s most successful at spawning and encouraging religious expression, religious diversity and religious enthusiasm. When de Toqueville came to early 19th century America he said the cultural barometer which distinguished America from all other societies was the righteousness being preached from its pulpits. And pulpits not paid for by the state, behind which stood preachers not on the public rolls, who spoke inside churches built with free will offerings, and not a dime of government subsidy.

While much debate centers on the sources who influenced this historical sea-change, it would be impossible to leave off as major foundation stones of the First Amendment religious clauses the idea-world built by Jefferson in his Virginia Statute for Religious Liberty, by Madison in his Memorial and Remonstrance, and their debt to John Locke and Roger Williams. These ideas culminated, one could realistically say, miraculously, into majoritarian sentiment at the time of the drafting of the Constitution. How could representatives from thirteen states, eleven of which had religious tests for public office, make the only religious part of the body of the Constitution a command to never have religious tests for public office in the United States? How could representatives of thirteen states, nine of which had established religions, write as the very first plank of the Bill of Rights that "Congress shall make NO LAW respecting an establishment of religion…?" A miracle indeed.

So back to our delicate question. Should we operate? Should we open the religious clauses, history’s finest at guaranteeing liberty to citizens, to the dangers of surgery?

A review of some of the potential complications will be helpful in our inquiry.

If we add a Constitutional Amendment concerning organized school prayer and other forms of government-sponsored religious expression, we would be limiting the very religious freedom we seek to ensure. Such a move would effectively strip the Establishment Clause of its meaning. The Establishment Clause was meant to keep the government out of the business of religious involvement, because the government is not God’s interpreter. The amendment would necessitate the government getting involved in deciding which groups would get protection and which wouldn’t. Do we have here an oxymoron – a religious liberty amendment that discriminates against religion?

While it might seem like making a new amendment to nudge the current Supreme Court in their misinterpretations of the religion clauses, let’s be honest and admit that their failure to render consistent rulings will not be solved by changing the existing Constitution. What makes anyone think that if the interpretation of the First Amendment has been perverted and so causes infringement on the very rights of people it was meant to protect, that the same interpretive perversion would not happen with this new amendment? It is hard to reform those who want to stay perverse, no matter how restrictive or instructive the legislation which is passed. What the country needs is not a new Amendment which will become subject to its own interpretation, but rather a knowledge of the proper interpretation of the existing First Amendment. Properly understood and applied, the religious liberty clauses of the First Amendment are all we need to protect the conscience of every parent and student in public schools. The United States remains the most successful experiment in religious liberty that the world has ever known because the First Amendment uniquely balances freedom of private religious belief and expression with freedom from state-imposed religious expression.

Will a new amendment reverse the American moral plummet? This view is misguided because it fails to address and neutralize the real problem. America’s moral decline is not due to some Supreme Court decision to "take God out of the public schools." If a moral decline is the problem then the only way to reverse it is by a change in character of the citizenry. No law will do that.

And as to the question as to whether God has been taken out of the public schools through wrong Supreme Court interpretations, as is so often charged, let it be simply said that public schools cannot block out religion. If God is an all-powerful, ever-present Being as is claimed, then no Court decision has the power to remove His/Her presence from any place on this earth! Students can "pray without ceasing" at school now. They can pray with friends around the flag pole in the morning, when the teacher hands out the Algebra test in the afternoon, and when running onto the athletic field at night. Students have a right to pray in school if it does not disrupt others, they are allowed to attempt to persuade other students of their personal religious views, and they may hand out religious literature if done at appropriate times and places. The First Amendment of the Constitution of the United States contains all the power an American needs to exercise his or her religion. Perhaps folks who are exploring a Constitutional Amendment option have not understood their already protected religious freedoms.

Another problem area for the possible amendment is that it would become an unintended pipeline for discrimination of minority sects of Christianity and other religions. Rather than allowing individual students at a school to choose what religion or expression of it they display, an amendment would allow the majority in a school classroom setting to rule. Since the government would be involved in religious decisions in a way that the Establishment Clause never intended, it is inevitable that religious questions would have governmental and political solutions. Political questions always come down to percentages and revolve around whose side is winning. There will be winners and losers. But the Establishment Clause was placed in preeminence in the noble listing of our rights by our Founding Fathers so that "losers" – that is to say, minorities – would have all the protections of winners – the more popular religions.

This is because Madison and others realized that the state could never really know what was right in religious matters. That must be left to the individual consciences of citizens. All that government can legitimately do is protect this already God-given freedom. Though it may seem at first glance to be backwards, and certainly contrary to the pattern of history, the wisdom enshrined in America’s religious protections says that it is more important to protect the faith of individuals, practically speaking, than of collective groups, including the government itself!

What else can be the meaning of the beginning of the Bill of Rights, "Congress shall make NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof."? This right holds a finger out to the most powerful government the world has ever known, and says in effect, you cannot make any law that will establish a religion or deny anyone their individual right to live out their religious convictions! This is the reasoning that Republican Congressman Don Manzullo (R-IL) gave, in a speech on the floor of the House of Representatives, for his failure to vote for the second Religious Freedom Restoration Act. He said the Act would have given Congress the right to legislate in an area of which the Constitution says, "Do not legislate here!"

Perhaps the answer to our inquiry is not as definite as we would like. While there are powerful red flags as to why we should avoid amending what are undeniably powerful protections, encased in historical genius, Americans in general are not aware of this heritage and its beauty, its wide ranging benefits. This is one of the reasons there are so many problems with religious persecution in public schools. There is no doubt an education process is called for.

But perhaps the lobbying and national visibility which a Constitutional Amendment could generate— if it passes the House by 2/3 then most if not all of the state legislatures will have to have a look at it—would provide the perfect forum for this education process. As Victoria Burwell says, "The fight for freedom is not something you can be timid about. Each freedom we have is tied to every other, and if we are robbed of one, we can be robbed of all."

We are certainly currently being robbed, by the Supreme Court and secular culture, of the true promises of the religion clauses of the First Amendment. Should we attempt to replace what we have been robbed of through the political process of a Constitutional Amendment? The answer to this question awaits your response. The future of freedom, not just for America, but for the world, may truly hang in the balance.