CRS Report for Congress
Received through the CRS Web
The Religious Freedom Amendment: H.J.Res. 78,
As Reported by the House Judiciary Committee
May 28, 1998
David M. Ackerman
American Law Division
Congressional Research Service ˜ The Library of Congress
H.J.Res. 78, the "Religious Freedom Amendment," would amend the Constitution in a manner
that would overturn many judicial interpretations of the religion clauses of the First
Amendment that have been based on a separationist perspective. This report details the
legislative, political, and constitutional context of the proposal and analyzes its legal effect if
ratified as part of the Constitution. It will be updated if H.J.Res. 78 passes the House.
The Religious Freedom Amendment: H.J.Res. 78, As
Reported by the House Judiciary Committee
On May 19, 1998, the House Judiciary Committee reported the Religious
Freedom Amendment (RFA), H.J.Res. 78, to the House, where floor action is
expected soon. The proposal would add the following language to the Constitution:
To secure the people's right to acknowledge God according to the dictates of
conscience: Neither the United States nor any State shall establish any official
religion, but the people's right to pray and to recognize their religious beliefs,
heritage, or traditions on public property, including schools, shall not be infringed.
Neither the United States nor any State shall require any person to join in prayer
or other religious activity, prescribe school prayers, discriminate against religion,
or deny equal access to a benefit on account of religion.
The Committee report states that the proposal "would coexist in the Constitution with
the religion clauses of the First Amendment ... [but] is intended to alter a number of
judicial interpretations of those clauses, particularly of the establishment clause."
H.J.Res. 78 is the latest, and the most ambitious, in a long line of constitutional
amendments that have been introduced in Congress since the Supreme Court's school
prayer decisions of Engel v. Vitale and Abington School District v. Schempp in 1962
and 1963. But this is the first time since then that a constitutional amendment
concerning church and state has been reported by a House committee. The one
previous occasion when the House voted on a school prayer amendment occurred in
1971, when H.J.Res. 191 was brought to the floor by means of a discharge petition.
But the vote on that measure — 240-162 — fell 28 votes short of the necessary twothirds majority. (The Senate has voted four times on such constitutional amendments
— in 1966, 1970, and twice in 1984.)
The RFA combines and builds on proposals that were introduced in the 104th
Congress and is considerably broader than the school prayer issue that has been the
focus of most previous proposals. Its legal effect is not certain in every instance, but
it seems clear that it seeks to undo separationist interpretations of the religion clauses
of the First Amendment and to foster a closer relationship between government and
religion than current constitutional interpretations allow. If ratified as part of the
Constitution, the consequences of H.J.Res. 78 would seem to include the addition of
a reference to "God" for the first time to the Constitution, a substantial easing of
constitutional restrictions on public aid to pervasively religious entities, an expansion
of government's role in fostering or accommodating religious expression in the public
schools and elsewhere, and a nullification of state constitutional provisions on church
and state that are more restrictive than the RFA.
This report details the legislative, political, and legal contexts of H.J.Res. 78 and
analyzes its legal effect.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Political Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Constitutional Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Effect of H.J.Res. 78 If Ratified . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(1) References to God in the Constitution . . . . . . . . . . . . . . . . . . . . . . 9
(2) No official religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(3) Public aid to sectarian institutions . . . . . . . . . . . . . . . . . . . . . . . . 10
(4) Religious expression on public property . . . . . . . . . . . . . . . . . . . 14
Additional Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Religious Freedom Amendment: H.J.Res.
78, As Reported by the House Judiciary
On May 19, 1998, the House Judiciary Committee reported a modified version
of the "Religious Freedom Amendment" (RFA), H.J.Res. 78, to the House.1 If
adopted by two-thirds of the House and the Senate and ratified by three-fourths of the
states, the proposal would add the following language to the Constitution:
To secure the people's right to acknowledge God according to the dictates of
conscience: Neither the United States nor any State shall establish any official
religion, but the people's right to pray and to recognize their religious beliefs,
heritage, or traditions on public property, including schools, shall not be infringed.
Neither the United States nor any State shall require any person to join in prayer
or other religious activity, prescribe school prayers, discriminate against religion,
or deny equal access to a benefit on account of religion.
H.J.Res. 78 reflects more than three years of informal debate and discussion (primarily
among House Republicans) on what form a constitutional amendment on church and
state ought to take, several decades of controversy over specific judicial
interpretations of the religion clauses of the First Amendment, and centuries of
argument and conflict about the proper relationship of government and religion.
The initiative is the latest, and the most ambitious, of the constitutional
amendments that have been proposed since the Supreme Court handed down its
school prayer decisions of Engel v. Vitale2 and Abington School District v. Schempp3
in 1962 and 1963. The proposal addresses a broader range of church-state issues than
the school prayer issue that was generally the focus of its predecessors and would
sanction a closer relationship between government and religion than is currently
permitted by judicial interpretations of the religion clauses of the First Amendment.
This report gives an overview of the legislative, political, and constitutional
contexts of H.J.Res. 78 and analyzes its legal effect were it to be ratified as part of the
The Committee had ordered the measure reported on a party-line vote of 16-11 on
March 4, 1998.
370 U.S. 421 (1962).
374 U.S. 203 (1963).
H.J.Res. 78 was originally introduced on May 8, 1997, by Rep. Ernest J. Istook
(R.-Okla.) and currently has 153 cosponsors. The Subcommittee on the Constitution
of the House Judiciary Committee held a hearing on the proposal on July 22, 1997,4
and on a party-line vote of 8-4 on October 28, 1997, reported a modified version of
the proposal to the full Committee. On March 4, 1998, the full Committee, on a
party-line vote of 16-11, ordered the proposal reported to the House, without further
The measure as reported by the Judiciary Committee differs in three respects
from the proposal as it was originally introduced: (1) The sentence "Neither the
United States nor any State shall establish any official religion" has been added; (2)
the phrase "Neither the United States nor any State" has been substituted for "The
Government" at the beginning of the last sentence; and (3) the phrase "prescribe
school prayers" in the last sentence originally read "initiate or designate school
prayers." As noted, the changes were all made by the Subcommittee on the
Constitution in a substitute proposed during mark-up by Rep. Hutchinson (R.-Ar.).
Democratic Members offered a number of amendments to the proposal in both
the Subcommittee and full Committee but all were defeated, largely on party-line
votes. Proposed amendments in the full Committee markup were as follows:
(1) a proposal by Rep. Scott (D.-Va.) to strike the last phrase "or deny equal
access to a benefit on account of religion" (rejected 9-14);
(2) an amendment by Rep. Nadler (D.-N.Y.) to strike as well the part
concerning the recognition of "religious beliefs, heritage, or traditions on public
property" (rejected on a voice vote);
(3) an amendment by Rep. Scott (D.-Va.) to deny public funding to any
religious institution that discriminates on racial grounds (rejected on voice vote);
(4) another proposal by Rep. Scott (D.-Va.) to add the word "unreasonably"
before "infringed" and to change the words "prescribe school prayers" to "prescribe
religious activity" (rejected on voice vote);
(5) an amendment by Rep. Jackson-Lee (D.-Tx.) to change "acknowledge
God" to "freedom of religion" (rejected 7-18);
(6) a proposal by Rep. Conyers (D.-Mich.) to bar public schools from
authorizing prayer over a public address system (rejected on voice vote); and
(7) a proposal by Rep. Watt (D.-N.C.) to strike the text and replace it with
the language of the religion clauses of the First Amendment (rejected on voice
The legislative lineage of H.J.Res. 78 dates at least to 1962, when the Supreme
Court handed down its first school prayer decision in Engel v. Vitale, supra. That
Hearing on Proposing an Amendment to the Constitution of the United States
Restoring Religious Freedom Before the Subcommittee on the Constitution of the House
Judiciary Committee, 105th Cong., 1st Sess. (July 22, 1997) (unpublished). The subcommittee
had also held two related sets of hearings during the 104th Congress — Hearings on Religious
Liberty and the Bill of Rights (1995) and Hearing on Legislation to Further Protect
Religious Freedom (1996).
decision and its companion decision a year later, Abington School District v.
Schempp, supra, precipitated an avalanche of proposals to amend the Constitution to
restore government-sponsored prayer to the public schools, and such proposals have
continued to be introduced in every subsequent Congress.5 But H.J.Res. 78 addresses
a broader range of church-state issues than most of its predecessors and, more
specifically, builds on competing constitutional proposals that emerged during the
Soon after the elections of 1994, when control of both the House and the Senate
shifted to the Republicans, Speaker-to-be Gingrich promised that the House would
vote on a constitutional amendment to restore prayer in the public schools no later
than July 4, 1995; and he designated Rep. Istook to lead the effort. But a number of
proponents of amending the Constitution on church-state concerns wanted to address
matters other than, or in addition to, school prayer. Arduous negotiations about the
form a proposal should take failed to develop a consensus; and as a result, late in the
first session of that Congress Rep. Hyde (R.-Ill.) and Rep. Istook (R.-Ok.) introduced
separate and competing proposals to amend the Constitution with respect to matters
of church and state — H.J.Res. 121 (also introduced in the Senate by Sen. Hatch as
S.J.Res. 45) and H.J.Res. 127, respectively.6 Late in the second session of the 104th
Congress Rep. Armey (R.-Tex.) introduced a modified proposal in an effort to unify
For a detailed review of Congressional action on constitutional and statutory measures
in this area of the law since 1962, see CRS, Prayer and Religion in the Public Schools: What
Is, and Is Not, Permitted (Oct. 7, 1996) (Report No. 93-680A).
The "Religious Liberties Amendment" (H.J.Res. 127) proposed by Rep. Istook provided
To secure the people's right to acknowledge God according to the
dictates of conscience: Nothing in this Constitution shall prohibit
acknowledgments of the religious heritage, beliefs, or traditions of the
people, or prohibit student-sponsored prayer in public schools. Neither
the United States nor any State shall compose any official prayer or
compel joining in prayer, or discriminate against religious expression
The "Religious Equality Amendment" proposed by Rep. Hyde (H.J.Res. 121) and by Sen.
Hatch (S.J.Res. 45) provided as follows:
Neither the United States nor any State shall deny benefits to or otherwise
discriminate against any private person or group on account of religious
expression, belief, or identity; nor shall the prohibition on laws respecting an
establishment of religion be construed to require such discrimination.
proponents of changing the Constitution in this area of the law — H.J.Res. 184.7 But
that effort also proved unavailing.
Thus, no proposal to amend the Constitution with respect to the law of church
and state either emerged from committee or came to a vote in the House or the
Senate during the 104th Congress. But that formal inaction masked what was in fact
a vigorous examination of church-state concerns. Moreover, the proposals that were
introduced marked a significant broadening of the debate about a constitutional
amendment, as they addressed not only the long-standing issue of prayer and other
religious practices in the public schools but also such concerns as public aid to
religious institutions and the display of religious symbols on public property.
In the 105th Congress proponents of amending the Constitution on church-state
concerns have generally united behind a single proposal — H.J.Res. 78. The measure,
with some modifications, incorporates the salient aspects of both H.J.Res. 121 and
H.J.Res. 127 from the 104th Congress and has become the primary constitutional
initiative on church and state in the 105th Congress.
A number of significant events have occurred outside the Congress in recent
years which have helped shape the current political context of the debate on H.J.Res.
78. On May 18, 1995, for instance, the Christian Coalition proposed its "Contract
with the American Family," a 10-point legislative agenda that gave priority to a
"Religious Equality Amendment." The Coalition did not propose any particular
language for the amendment but said it would be designed to overcome "the hostility
of public institutions toward religious expression" and to "allow voluntary, student
and citizen-initiated free speech in non-compulsory settings such as courthouse lawns,
high school graduation ceremonies, and sports events." The issue has remained a high
priority for the Coalition, which is supporting H.J.Res. 78.
A month earlier on April 14, 1995, a diverse coalition of about three dozen
groups — including the American Jewish Congress, the National Association of
Evangelicals, People for the American Way, and the Christian Legal Society — joined
with Education Secretary Riley in a declaration on Religion in the Public Schools: A
Joint Statement of Current Law. The statement described various ways in which
students can practice their religion in the public schools consistent with the present
interpretation of the Constitution, stating: "Some say that the Supreme Court has
declared the public schools 'religion-free zones' or that the law is so murky that school
Also called the "Religious Freedom Amendment," H.J.Res. 184, proposed by Rep.
Armey, provided as follows:
In order to secure the right of the people to acknowledge and serve God
according to the dictates of conscience, neither the United States nor
any State shall deny any person equal access to a benefit, or otherwise
discriminate against any person, on account of religious belief,
expression, or exercise. This amendment does not authorize
government to coerce or inhibit religious belief, expression, or exercise.
officials cannot know what is legally permissible. The former claim is simply wrong.
And as to the latter, while there are some difficult issues, much has been resolved."
That document contributed substantially to a major initiative by President Clinton
on the issue of religious expression. In a speech on July 12, 1995, President Clinton
defended the Supreme Court's interpretation of the religion clauses of the First
Amendment, saying "it protects freedom of religion by allowing students to pray, and
it protects freedom of religion by preventing schools from telling them how and when
and what to pray." But he also said he understood that many believe there is "a
positive antireligious bias in the cumulative impact of [the courts'] decisions ...." As
a consequence, he announced that he was directing the Secretary of Education, in
consultation with the Attorney General, to provide every school district in America
with a statement addressing the extent to which religious expression and activity are
permitted in its public schools. On August 10, 1995, Secretary Riley did so, sending
every school superintendent in the country a guide entitled Religion Expression in
Public Schools.8 Drawing heavily from the coalition document described above, the
guide describes the legal standards governing such matters as student prayer and
discussion, graduation prayer and baccalaureates, teaching about religion, the
distribution of religious literature, and meetings of student religious groups.
Finally, on August 14, 1997, the Administration also issued a document to
govern religious exercise and religious expression by federal employees. Entitled
Guidelines on Religious Exercise and Religious Expression in the Federal
Workplace,9 the document attempts to establish rules to govern the treatment of
religion on the job. Under the guidelines, for example, agencies are barred from
regulating employees' religious expression in the workplace because of its content or
viewpoint and employees are allowed to engage in private religious expression to the
same extent as they may engage in private nonreligious expression. The government,
moreover, is barred from discriminating against any employee on the basis of the
employee's religious beliefs and practices or lack thereof. The document also
addresses the difficult issue of religious harassment and sets forth a number of
examples of what might constitute such harassment. The Guidelines have been
subject to both strong praise and criticism, but they are further evidence of this
Administration's willingness to address religious issues.
A number of organizations have taken positions publicly supporting H.J.Res. 78.
These organizations include: American Conference of Jews and Blacks, American
Muslim Council, America's Prayer Network, the Catholic Alliance, Christian Action
Network, Christian Coalition, Concerned Women for America, Family Research
Council, Focus on the Family, National Association of Evangelicals, National Baptist
Convention USA, Salvation Army, Southern Baptist Convention, and the Traditional
The text of these guidelines is also available on the White House internet site.
This listing is taken from a fact sheet on H.J.Res. 78 released by the office of Rep.
By the same token a number of organizations publicly oppose the RFA. These
organizations include: American Civil Liberties Union, American Jewish Committee,
American Jewish Congress, Americans for Religious Liberty, Americans United for
Separation of Church and State, Anti-Defamation League, Church State Council of
Seventh-day Adventists, the Episcopal Church, Friends Committee on National
Legislation, Joint Baptist Committee on Public Affairs, Mennonite Central Committee
Washington Office, Muslim Public Affairs Council, National Council of Churches of
Christ in the U.S.A., and People for the American Way.11
No publicly available polls have been found assessing the sentiment of the
American people on H.J.Res. 78. So far as the First Amendment is concerned, a poll
conducted in July, 1997, and released on December 22nd indicated that 81% of
Americans consider the freedom to choose in matters of faith to be an essential right
and another 18% consider that choice an important right. That same poll, sponsored
by the Freedom Forum and undertaken by the Center for Survey Research and
Analysis, also found that 71 percent of Americans believe that the amount of religious
freedom in the United States is "about right"; 21% of Americans believe they have
too little religious freedom; and 6% say America has too much. As for teacher-led
prayer in school, a majority favored it, but less than a majority said they wanted to
amend the Constitution to get it. As a general matter, some polls about the religious
attitudes and beliefs of Americans have been criticized for being inaccurate because
of how the polling questions were phrased, though no such criticism appears to have
been raised so far about the Freedom Forum poll.
The constitutional context addressed by H.J.Res. 78 is formed primarily by the
religion clauses of the First Amendment, which provide that "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof
...,"12 and by court decisions applying these clauses in particular situations. It also
includes at times the free speech and free press clauses of the First Amendment,13
particular statutory enactments such as the Equal Access Act,14 and related judicial
The report of the House Judiciary Committee states that the RFA would "coexist
in the Constitution with the religion clauses of the First Amendment" but also "is
intended to alter a number of judicial interpretations of those clauses, particularly of
Istook on March 2, 1998, at the markup by the Subcommittee on the Constitution.
This listing is taken largely from a footnote in the "Dissenting Views" section of
H.Rept. 105-543, supra, n. 4, p. 21.
The religion clauses are applicable to the states as well as the federal government. See
Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause held applicable) and
Everson v. Board of Education, 330 U.S. 1 (1947) (establishment clause held applicable).
"Congress shall make no law ... abridging the freedom of speech, or of the press ...."
20 U.S.C.A. 4071 et seq.
the establishment clause."15 The Supreme Court and lower courts," the report asserts,
"have misinterpreted the Constitution ..."16 and "promote[d] hostility" toward
religion.17 Thus, it, says, "the goal of the RFA is not to change the First Amendment
but rather to restore to the law a balanced and even-handed treatment of religious
expression and affiliation."18 In contrast, the dissenting views of fourteen Democrats
on the Committee contend that the religion clauses of the First Amendment have
ensured both that "[r]eligion is alive and well in America today"19 and that the
American people can freely"express their religion" while being free "from a
Government which seeks to compel religion, either religion generally or a particular
These views reflect a long-standing debate about the meaning and interpretation
of the religion clauses of the First Amendment. On the one hand, it has been
contended that the religion clauses were a response to the "turmoil, civil strife, and
persecutions" that had been endemic in Europe in the centuries preceding and
contemporaneous with the colonization of America as various faiths allied themselves
with government to establish their supremacy. Similar struggles in the colonies
themselves, it is said, gradually created a "feeling of abhorrence" about such unions
of church and state and fostered a movement to eliminate existing establishments. As
a consequence, it is argued, the religion clauses were drafted with the intent of having
a broad scope and of creating a "wall of separation between church and state."21 In
a classic statement of the separationist understanding, Justice Black stated for the
Court in 1947:
The "establishment of religion" clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious beliefs or disbeliefs,
H.Rept. 105-543, 105th Cong., 2d Sess. (May 19, 1998), at 2.
Id., at 4.
Id., at 3.
Id., at 22 (Dissenting Views).
Id., at 25.
The metaphor derives from a letter Thomas Jefferson wrote while President to a group
of Baptists in Danbury, Connecticut, who had inquired about his views on the religion clauses
of the First Amendment. He stated as follows:
Believing with you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions -- I
contemplate with sovereign reverence that act of the whole American people which
declared that their legislature should "make no law respecting an establishment of
religion or prohibiting the free exercise thereof," thus building a wall of separation
between church and State.
for church attendance or non-attendance. No tax in any amount, large or small,
can be levied to support any religious activities or institutions, whatever they may
be called, or whatever form they may adopt to teach or practice religion ... In the
words of Jefferson, the clause against establishment of religion by law was
intended to erect "a wall of separation between church and State."22
On the other hand, critics of some of the judicial interpretations of the religion
clauses (including the report of the House Judiciary Committee on H.J.Res. 78) have
noted that the phrase "wall of separation" is "nowhere to be found in the Constitution"
and have termed the phrase "misleading," "useless," "a mischievous metaphor," and
a "metaphor based on bad history."23 Critics of the separationist view have contended
that there has been "an unbroken history of official acknowledgments by all three
branches of government of the role of religion in American life from at least 1789"24
and that the Constitution does not require "complete separation of church and state
... [but] affirmatively mandates accommodation ... of all religions, and forbids hostility
toward any."25 Prior to the courts' modern constructions of the establishment clause,
it has been said, the clause had a
well-accepted meaning: it forbade establishment of a national religion, and forbade
preference among religious sects or denominations .... [It] did not require
government neutrality between religion and irreligion nor did it prohibit the Federal
Government from providing nondiscriminatory aid to religion.26
Both views of the religion clauses have been evident in judicial decisions about
church and state, particularly those involving the establishment clause. The
separationist view, for instance, has been most prominent in the decisions holding
unconstitutional government sponsorship of devotional activities in the public schools,
various forms of public aid to religious schools, and government sponsorship of
quintessential religious symbols. In other instances a principle of benevolent neutrality
or equality has governed the judicial application of the establishment clause. That
principle has been most prominent in decisions which have afforded broad protection
to private religious expression in the public schools and elsewhere, whether oral or
written or symbolic.
H.J.Res. 78, it seems clear, takes issue with the separationist perspective and
would overturn judicial decisions based on the separationist principle.
Legal Effect of H.J.Res. 78 If Ratified
Not all of the legal implications of H.J.Res. 78 are necessarily self-evident from
its language, and much of its legislative history still remains to be developed.
Moreover, the scope and meaning of constitutional amendments sometimes change
Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting).
Lynch v. Donnelly, 465 U.S. 668, 674 (1987).
Id., at 673.
Wallace v. Jaffree, supra, at 106 (Rehnquist, J., dissenting).
over time.27 Nonetheless, it seems clear that the general effect of the proposal would
be to introduce a reference to God into the Constitution for the first time, substantially
lower existing constitutional restrictions on public aid to religious institutions, allow
the government a greater role in fostering or accommodating the expression of
religious beliefs and traditions in the public schools and on other public property, and
override more restrictive state constitutional provisions on church and state.
(1) References to God in the Constitution. H.J.Res. 78 prefaces its
substantive provisions with the words "[t]o secure the people's right to acknowledge
God according to the dictates of conscience ...." If added to the Constitution, this
prefatory language would for the first time add a reference to God to the Constitution.
Unlike the Declaration of Independence28 (but like the Articles of Confederation29),
the Constitution as presently written makes no mention of a deity. Article VI forbids
a "religious test" for public office, and the First Amendment bars government from
making "any law respecting an establishment of religion, or prohibiting the free
Compare, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966) with City of Boerne,
Texas v. Flores, 117 S.Ct. 2157 (1997).
References to a divinity occur four times in the Declaration. The opening paragraph
When in the Course of human events, it becomes necessary for one people
to dissolve the political bands which have connected them with another, and
to assume among the powers of the earth, the separate and equal station to
which the Laws of Nature and of Nature's God entitle them, a decent respect
to the opinions of mankind requires that they should declare the causes which
impel them to the separation.
The second paragraph, in turn, opens with these words:
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness.
And the concluding paragraph declaims:
WE, THEREFORE, the Representatives of the UNITED STATES OF
AMERICA, in General Congress, Assembled, appealing to the Supreme Judge
of the world for the rectitude of our intentions, in the Name, and by Authority of
the good People of these Colonies, solemnly publish and declare, That these United
Colonies are, and of Right ought to be Free and Independent States .... And for the
support of this Declaration, with a firm reliance on the Protection of Divine
Providence, we mutually pledge to each other our Lives, our Fortunes and our
The substantive text of the Articles made no reference to a divinity, but the resolution
by which it was adopted by representatives of the States included the following words:
And whereas it has pleased the Great Governor of the world to incline the hearts
of the Legislatures we respectively represent in Congress, to approve of, and to
authorize us to ratify the said articles of confederation and perpetual union ....
exercise thereof ...." But the Constitution is otherwise silent on the subject of
religion. The introductory phrase of H.J.Res. 78 would alter that and, for the first
time, insert a specific reference to God.
Whether the term "God" as used in this introductory phrase is intended to have
a specific or generic meaning is, in the present state of the proposal's evolution,
uncertain. "God" is the term typically used in Western religious discourse about a
deity, but other religious faiths use other terms -- Vishnu, Shiva, and Brahma
(Hinduism); Kami (Shintoism) -- or are not centered about a deity (Taoism, e.g.).
The rest of the amendment uses the more obviously inclusive term "religion" or
"religious." During markup the Judiciary Committee rejected a proposal to replace
the phrase "acknowledge God" with the phrase "freedom of religion" by a vote of 718.30
In any event, this language does not appear to confer or prohibit any particular
right or power. But like the Preamble to the Constitution, it could conceivably be
used to evidence the scope and purpose of the amendment. Joseph Story said of the
Preamble that "its true office is to expound the nature and extent and application of
the powers actually conferred by the Constitution, and not substantively to create
them."31 Thus, if any of the substantive provisions of H.J.Res. 78 were subject to
conflicting or ambiguous constructions, this language might be used as evidence of
the intent of the provision.
(2) No official religion. The initial substantive provision of H.J.Res. 78
provides that "neither the United States nor any State shall establish any official
religion." This provision was added to the proposal by the Subcommittee on the
Constitution and appears to reflect one side of the ongoing debate about the original
intent of the religion clauses of the First Amendment described above. As noted,
separationists have construed the clauses broadly as creating, in Jefferson's words, a
"wall of separation between church and state" and as barring any preference not only
for one religion over another but also for religion generally over irreligion. Critics of
that view, on the other hand, have contended that the religion clauses were intended
to do no more than bar the establishment of an official religion by the government,
i.e., articles of faith, a preferred church, special privileges for one faith or church. The
clauses were not intended, it is argued, to bar nondiscriminatory assistance to religion
and preferential treatment for religion over irreligion. This provision of H.J.Res. 78
appears to resolve this debate in favor of the latter view, i.e., that the Constitution
ought to bar only the official designation of a church or faith as favored by the
government and not bar nondiscriminatory assistance to religion.
(3) Public aid to sectarian institutions. This construction of H.J.Res. 78
appears to be born out by its concluding words: "Neither the United States nor any
State shall ... discriminate against religion, or deny equal access to a benefit on
account of religion." This language appears to have its most dramatic effect on the
constitutional law governing the direct provision of public aid to sectarian institutions,
because that area of the law now requires discrimination and denial of benefits on the
See H.Rept. 105-543, supra, at 17-18.
Story, Joseph, Commentaries on the Constitution of the United States (1833), § 462.
basis of religion. H.J.Res. 78 would require that pervasively religious entities be
eligible for direct (and indirect) government assistance on the same basis as
nonreligious private entities.
Existing interpretations of the establishment of religion clause have made clear
that it "absolutely prohibit[s] government-financed or government-sponsored
indoctrination into the beliefs of a particular religious faith."32 As a consequence of
this separationist principle, the Supreme Court has held the clause to impose
substantial, although not absolute, constraints on public aid to religious institutions.
Public aid that flows directly to such institutions in the form of grants or
contracts, the Supreme Court has said, must be used only for "secular, neutral, and
nonideological purposes."33 Thus, under the establishment clause direct support can
be provided to the secular programs and services sponsored or provided by religious
organizations but not to their religious activities or to any religious proselytizing.
Thus, if an organization's religious and secular functions are separable, direct aid can
be provided to its secular functions.34 But if they are not separable, i.e., if an
institution is "pervasively sectarian," then direct aid is generally prohibited (although
benefits that are no more than "incidental" may be allowed).35 In other words, in
direct aid programs the establishment clause has been construed to require
government to deny benefits to religious activities and to entities with a pervasively
Indirect aid to religious institutions has not been held to be constrained to the
same extent by the establishment clause. Tuition grant, tax benefit, and other
programs in which the public aid does not flow directly to the religious institution but
Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899) (public grant to religiously
affiliated hospital to care for the health needs of the poor in the District of Columbia upheld);
Tilton v. Richardson, 403 U.S. 672 (1971) (federal construction grants for academic
buildings at institutions of higher education, including several sectarian colleges, upheld);
Roemer v. Maryland Board of Public Works, 426 U.S. 736 (1976) (state program of general
purpose grants to colleges in the state, limited only by a bar against sectarian use, upheld);
Bowen v. Kendrick, 487 U.S. 589 (1988)(program of federal grants to institutions, including
religious ones, to provide pregnancy prevention and care services upheld facially but
remanded for an examination of whether funding went to pervasively religious entities); and
Agostini v. Felton, 117 S.Ct. 1997 (1997) (provision of Title I remedial educational services
to children attending sectarian schools by public school teachers on the premises of the
sectarian schools held to be constitutional).
This has been particularly true with respect to sectarian elementary and secondary
schools. The Court has found such schools to be so permeated with a religious purpose and
character that their secular functions and religious functions are "inextricably intertwined."
See, e.g., Committee for Public Education v. Nyquist, supra (program of maintenance and
repair grants struck down); Lemon v. Kurtzman, 403 U.S. 602 (1971) (program of grants for
the support of teachers of secular subjects struck down); and Wolman v. Walter, 433 U.S.
229 (1977) (programs providing bus transportation for field trips and instructional materials
other than textbooks struck down).
initially to individuals have been upheld by the Court so long as the initial recipients
have had a genuinely free choice about where to use the aid.36 Aid received by
religious institutions through such programs need not be confined to secular use, the
Court has said, because the initial recipient and not the government chooses where the
aid ultimately goes. As a consequence, the government is deemed to be religiously
neutral and not to be the agent of any religious use. However, if the government has
designed an indirect aid program in such a way that the initial recipient's choice is
constrained or channeled to pervasively sectarian institutions or programs, the
program will not pass muster under the establishment clause.37 In that case the
government is not deemed to be religiously neutral, because the design of the program
inevitably channels most of the benefits to religion-pervasive institutions.38
H.J.Res. 78 would substantially alter this constitutional framework for both
direct and, to a more limited extent, indirect aid programs. Under the proposal's
nondiscrimination and equal access mandate, religious entities could not be excluded
from participation in public aid programs for which they would be eligible but for their
pervasively religious character. Religiously affiliated or sponsored entities that
received government funds in the form of grants or contracts would no longer be
constitutionally restricted to using the funds exclusively for "secular, neutral, and
nonideological purposes." Similarly, pervasively religious institutions would seem no
longer to be deemed ineligible for direct assistance simply because religion permeates
their activities and programs. In addition, indirect assistance programs that otherwise
included comparable private institutions as potential beneficiaries seemingly could not,
as now, exclude religious institutions.
See, e.g., Mueller v. Allen, 463 U.S. 388 (1983) (tax benefit program allowing
educational expenses incurred by the parents of both public and private schoolchildren to be
deducted from gross income for state income tax purposes upheld); Witters v. Washington
Department of Services for the Blind, 474 U.S. 481 (1986) (vocational education grant to
student who wished to use it for training for a religious ministry upheld); and Zobrest v.
Catalina Foothills School District, 509 U.S. 1 (1993) (provision of sign language interpreter
to deaf student attending a sectarian secondary school upheld).
See, e.g., Committee for Public Education v. Nyquist, supra (tuition grant and tax
relief programs limited to the parents of private schoolchildren struck down) and Sloan v.
Lemon, 413 U.S. 388 (1973) (program of tuition grants limited to private schoolchildren
It should be noted that one decision by the Supreme Court does not fit easily into either
of the foregoing categories. In Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995) the Court held a public university subsidy of the printing costs
of an openly religious student publication not to violate the establishment clause. In that case
the University, in order to promote vigorous debate on the campus, used student activity fees
to subsidize the printing costs of a variety of student publications. But it denied the subsidy
to student religious publications. The Court, however, said that a denial of funding to the
religious publication when the subsidy was available to all other student publications
constituted viewpoint discrimination violative of the free speech clause of the First
Amendment. It further held that the subsidy did not violate the establishment clause, because
the subsidy program was available to all student publications and, thus, was neutral with
respect to religion.
The report of the House Judiciary Committee confirms this understanding. It
[T]he RFA says that when government funds private groups to perform a valid
secular purpose, it cannot prevent religious groups from participating on an equal
basis .... Under the RFA, government aid or a government program would still
need to serve a secular purpose such as education or drug treatment. As long as
sectarian institutions are considered on an equal basis with non-sectarian
institutions and with other sectarian institutions they will be eligible to receive
government funding, even funding made directly to the institutions.39
For example, if H.J.Res. 78 were added to the Constitution, a religious
institution that operated a government-funded social services program would no
longer be constitutionally precluded from engaging in religious activities or religious
proselytizing in the funded program. Sectarian elementary or secondary schools -now generally precluded from receiving direct government assistance because they are
deemed pervasively sectarian -- would be fully eligible for direct government funding
on the same basis as other private schools. An educational voucher program that
permitted students to use the vouchers at public or private nonsectarian schools
would have to permit the vouchers to be used at sectarian private schools as well, and
provisions of state constitutions that are more strict than the religion clauses of the
First Amendment with respect to such public funding of pervasively religious entities
(such as those in the Milwaukee voucher case40) would be overridden. In short,
constructions of the establishment clause and of pertinent provisions in state
constitutions that have imposed restrictions on the participation of religious entities,
including pervasively religious institutions, in public subsidy programs would be
Moreover, as is true in existing law as well, the nondiscrimination mandated by
H.J.Res. 78 would appear to be all-inclusive. That is, if private entities were eligible
participants or recipients in any publicly funded program, government could not
exclude any particular religious group from participating. So long as an entity met the
test of being religious, it could not be excluded from participating in an otherwise
The proposal does not, it should be noted, appear to mandate the extension of
benefits to religious institutions where the benefits are otherwise restricted to public
institutions. The subsidy of public schools, for instance, would not seem to trigger
a requirement of comparable funding of private sectarian schools. Only where other
H. Rept. 105-543, supra, at 14-15.
In Jackson v. Benson, 1997 Wisc. LEXIS 973 (Ct. App. Wisc., decided August 22,
1997), an intermediate state appellate court in Wisconsin held the part of Milwaukee's
Parental Choice Program allowing sectarian elementary and secondary schools to participate
to violate a provision of the state constitution barring any money from being drawn from the
treasury "for the benefit of religious societies, or religious or theological seminaries" (Art. I,
§ 18). Similarly, a state court in Maine has held that state's constitution to bar the inclusion
of sectarian schools in a state voucher program for parents in rural areas without public
schools. See Bagley v. Town of Raymond, Me., No. ___ (Maine Superior Court, decided
April 29, 1998).
private entities are eligible participants or recipients would religious entities have to
be included and comparably treated.41
Nor does the proposal appear to alter the present constitutional limitation on
indirect aid programs that give preference to religious institutions. As noted above,
tax benefit, tuition voucher, and other similar programs are at present constitutionally
invalid if religion is given preferential treatment.42 H.J.Res. 78 would require only
nondiscrimination in such programs and does not appear to alter that limitation.
In sum, then, the effect of H.J.Res. 78 on the present constitutional framework
governing the provision of public aid to religious institutions, particularly with respect
to direct assistance, appears to be substantial. The secular use limitation that now
attaches to direct public aid to religious institutions would seemingly be eliminated,
and direct aid could be provided even to pervasively religious institutions. In indirect
assistance programs religious entities would have to be included in any program that
also included comparable nonreligious institutions, notwithstanding state
constitutional provisions that might prohibit such assistance.
(4) Religious expression on public property. The rest of H.J.Res. 78 concerns
religious expression on public property. Its second sentence affirmatively provides
that "[t]he people's right to pray and to recognize their religious beliefs, heritage, or
traditions on public property, including schools, shall not be infringed." The first part
of the last sentence is worded in the negative as a limitation on what government can
do with respect to religious expression -- "Neither the United States nor any State
shall require any person to join in prayer or other religious activity, prescribe school
According to the report of the House Judiciary Committee, this language would
have a number of consequences. It would
! allow public schools "to give students a moment of silence for prayer and the
ability to pray on a voluntary basis in their classrooms"43;
The report of the House Judiciary Committee states:
In sum, the provisions of the RFA would apply where a state enacts a program of
aid that funds all private and public schools, for example, but explicitly
disqualifies participation by religious providers. Should a state decide to provide
support only to government-operated schools, however, such a decision would not
violate the RFA.
H. Rept. 105-543, supra, at 14-15.
Committee for Public Education v. Nyquist, supra; Sloan v. Lemon, supra; Texas v.
Bullock, 489 U.S. 1 (1989) (exemption of religious periodicals that promoted the teachings
of a religious faith from a state's sales and use taxes held unconstitutional).
H. Rept. 105-543, supra, at 2-3.
! allow prayer at high school graduation ceremonies, so long as "the government
did not mandate that the prayer be part of the ceremonies or prescribe the text
of the prayer"44;
give "religious groups and clubs the same degree of consideration as other
secular groups receive when the use of school meeting rooms is requested"45;
extend the principle of the Equal Access Act,46 which allows student-initiated
religious groups in federally assisted secondary schools to meet in school
facilities during noncurricular time on the same basis as nonreligious student
groups, to the elementary school level47;
require that outside groups be allowed to use school facilities for after-school
religious instruction and worship services48;
allow the posting of the Ten Commandments and other religious texts and
symbols on public property without any need for accompanying secular texts
or symbols49; and
allow the inclusion of religious symbols on government seals and insignia.50
The intent, the report states, "is to establish neutrality in government's treatment of
religion by affording religious expression the same protection as other expression."51
This part of the RFA implicates at least two aspects of the courts' church-state
jurisprudence -- the decisions concerning religious activities in the public schools and
those involving religious expression in public places other than the schools. Both
aspects have a public and a private speech component.
With respect to religious activities in public schools, judicial applications of the
establishment, free exercise, and free speech clauses of the First Amendment have
generally prohibited government from sponsoring or promoting religious activities or
doctrines in the public schools. The Supreme Court, for instance, has struck down
government sponsorship of regular devotional activities such as prayer and Bible
reading,52 moment of silence statutes where prayer has been given preference by the
state,53 school-sponsored invocations and benedictions by clergy at commencement
Id., at 3.
20 U.S.C.A. 4071 et seq.
H. Rept. 105-543, supra, at 9.
Id., at 11-12.
Id., at 12.
Id., at 12.
Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S.
203 (1963); and Chamberlin v. Dade County Board of Instruction, 377 U.S. 402 (1964).
Wallace v. Jaffree, 472 U.S. 38 (1985).
ceremonies,54 public school accommodation of privately sponsored religious
instruction on the public school premises during the school day,55 the posting of the
Ten Commandments on schoolroom walls,56 and state prohibitions and constraints on
the teaching of evolution.57
But the Court has emphasized that "there is a crucial difference between
government speech endorsing religion and private speech endorsing religion."58 Thus,
it has upheld the constitutionality of released time programs in which students leave
the school premises during the school day to receive religious instruction from private
teachers at nearby religious centers.59 It has held as well that students in a public
university must be given the same right to use campus facilities for religious purposes
as is afforded nonreligious student uses.60 It has upheld as well the constitutionality
of the Equal Access Act,61 which requires secondary schools that receive federal
financial assistance to permit student-initiated religious groups to meet in school
facilities on the same basis as other noncurricular student groups.62 It has implicitly
affirmed the constitutionality of a properly drafted statute allowing a moment of silent
meditation in the schools.63 It has held that religious groups cannot be barred from
using school facilities outside of school hours where the facilities are generally made
available for community use.64 Finally, the Court has affirmed that in some instances
a student has a constitutional right to be excused from ceremonies or curricular
requirements that conflict with his or her religious beliefs.65 Although the Court has
Lee v. Weisman, 505 U.S. 577 (1992).
McCollum v. Board of Education, 333 U.S. 203 (1948).
Stone v. Graham, 449 U.S. 39 (1980) (per curiam).
Epperson v. Arkansas, 393 U.S. 97 (1968) and Edwards v. Aguillard, 482 U.S. 478
Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
(O'Connor, J., concurring).
Zorach v. Clauson, 343 U.S. 306 (1952).
Widmar v. Vincent, 454 U.S. 263 (1981).
20 U.S.C. 4071 et seq.
Board of Education of Westside Community Schools v. Mergens, supra.
Wallace v. Jaffree, supra. In dicta the Court observed that "[t]he legislative intent to
return prayer to the public schools is, of course, quite different from merely protecting every
student's right to engage in voluntary prayer during an appropriate moment of silence during
Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
See, e.g., West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) (right
not to participate in flag salute and Pledge of Allegiance) and Wisconsin v. Yoder, 406 U.S.
205 (1972) (right of the Amish not to comply with final two years of state's compulsory
not addressed every aspect of private religious expression in the public school
context, its decisions have generally afforded broad protection.66
The public/private distinction also has been made, although with less clarity, with
respect to religious expression on public property other than the public schools. The
Supreme Court has made clear that religious speech encompasses a variety of
expressive activities, including worship, the singing of hymns, reading scripture,
teaching religious principles, discussing religious issues, proselytizing through
literature and the spoken word, and displaying religious symbols.67 And in a number
of decisions the Court has held that the free speech and free exercise of religion
clauses provide broad protection to private religious speech in public places.68 As
with other forms of speech, government can impose reasonable time, place, and
manner restrictions.69 But it is constitutionally barred from imposing restrictions on
private speech, whether religious or nonreligious, because of its content. As the
Court stated in a recent decision,
[P]rivate religious speech, far from being a First Amendment orphan, is as
fully protected under the Free Speech Clause as secular private expression.
Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 767
Thus, the Court has held that private religious speech in public parks cannot be
subject to the unfettered discretion of local officials70; that the private distribution of
religious literature cannot be prohibited71; that public facilities that are generally open
for community use cannot exclude religious use or religious topics72; and that persons
with a religious identity cannot be barred from participating in political affairs.73 Most
recently, the Court made clear that this broad protection for private religious speech
in the public square extends as well to the display of religious symbols in public fora.
In Capitol Square Review & Advisory Board v. Pinette, supra, the Court held that
government could not preclude a private group from displaying a cross during the
Christmas season in a public square traditionally used for expressive purposes, so long
For a more thorough treatment of what forms of religious expression are, and are not,
permitted in the public schools, see CRS, Prayer and Religion in the Public Schools: What
Is, and Is Not, Permitted (1996) (Report No. 93-680A).
See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 (1981) and Heffron v. International
Society for Krishna Consciousness, 452 U.S. 640, 647 (1981).
See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943); Cantwell v. Connecticut,
310 U.S. 296 (1940); Heffron v. International Society for Krishna Consciousness, supra;
International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
Heffron v. International Society for Krishna Consciousness, Inc., supra, at 647.
Cantwell v. Connecticut, supra; Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz
v. New York, 340 U.S. 290 (1951).
Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569 (1987).
Lamb's Chapel v. Center Moriches School District, supra.
McDaniel v. Paty, 435 U.S. 618 (1978).
as a reasonable observer would not perceive the display as a governmental
endorsement of the faith represented by the symbol. In short, private religious speech
— oral, written, and symbolic — is broadly protected by existing Constitutional law.
Judicial decisions on the constitutionality of religious expression by government
in contexts other than the public schools have been less clear cut. In two cases the
Supreme Court has held the establishment clause to bar government from displaying
a quintessential religious symbol by itself in a public space but to permit the
government to display such symbols together with secular symbols.74 In another
case, on the basis of a unique historical circumstance, the Court has held it to be
constitutionally permissible for government to hire a chaplain to offer prayers at the
opening of legislative session.75 Lower federal and state courts have in several
instances held the inclusion of religious symbols on government seals and insignia to
be unconstitutional76 and have reached various results with respect to the display of
religious symbols in public places.77
As is the case with respect to public aid to religious institutions, this part of
H.J.Res. 78 basically is directed at judicial decisions concerning religious expression
on public property based on a separationist perspective. As noted above, existing
Lynch v. Donnelly, 465 U.S. 668 (1984) (government Christmas display including a
creche and numerous secular symbols of Christmas such as a Santa Clause and reindeer, a
small village, candy-striped poles, hundreds of colored lights, and a large banner reading
"Season's Greetings" held not to violate the establishment clause) and County of Allegheny
v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989)
(government display of a creche by itself in a county courthouse held unconstitutional but
display of a menorah, Christmas tree, and a sign designating the display as a "Salute to
Liberty" in front of a municipal building held constitutional).
Marsh v. Chambers, 463 U.S. 783 (1983). The Court found that Congress had
authorized the hiring of a chaplain within three days of recommending the Bill of Rights to the
states and concluded, therefore, that it could not have intended the establishment clause to bar
such a legislative chaplaincy.
See, e.g., Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir. 1995), cert. den., 517
U.S. 1201 (1996) (Latin cross on one quadrant of a city seal held unconstitutional);
Foremaster v. City of St. George, 882 F.2d 1485 (10th Cir. 1989), cert. den., 495 U.S. 1120
(1990) (depiction of local Mormon temple on city seal held unconstitutional); and Harris v.
City of Zion, 927 F.2d 1401 (7th Cir. 1991), cert. den., 505 U.S. 1218 (1992) (a Latin cross,
a dove carrying a branch, a crown and sword, and the name "Zion" on a city's seal, emblem,
and logo held unconstitutional). But see Murray v. City of Austin, 947 F.2d 147 (5th Cir.
1991) (upholding the inclusion of a religious symbol on a city seal as constitutional).
See Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993) (permanent display of three
crosses in city park held unconstitutional); Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir.),
cert. den., 66 U.S.L.W. 3474 (1998) (display of a creche by a city in a downtown park held
not to violate the establishment clause); Carpenter v. City and County of San Francisco, 93
F.3d 627 (9th Cir. 1996), cert. den., 117 S.Ct. 1250 (1997) (city's display of large Latin cross
in a public park held to violate state constitution); Americans United for the Separation of
Church and State, 980 F.2d 1538 (6th Cir. 1992) (private display of a menorah in a public
park that was used a traditional public forum held constitutional); and Harvey v. Cobb, 811
F.Supp. 669 (M.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir.), cert. den., 511 U.S. 1129
(1994) (display of Ten Commandments on courthouse wall held unconstitutional).
judicial interpretations of the First Amendment provide substantial protection for
private religious expression, whether in the public schools or elsewhere; and H.J.Res.
78 does not appear to alter that. The constitutional infirmity identified by the courts
under the establishment clause has been government's involvement with religious
expression as sponsor, prescriber, or endorser; and it is these decisions that H.J.Res.
78 appears to overrule, at least to some extent.
It seems clear that H.J.Res. 78 would do more than legitimate student-initiated
and student-led devotional exercises in the public schools. That is an avenue that has
gained considerable currency in some circles following the decision of the U.S. Court
of Appeals for the Fifth Circuit in Jones v. Clear Creek Independent School District.78
After the Supreme Court in Lee v. Weisman, supra, held the establishment clause to
be violated by prayers given by a clergyman at the principal's invitation at a public
secondary school's graduation exercise, the Fifth Circuit held the clause not to be
violated by nonsectarian, nonproselytizing commencement prayer initiated by
members of the graduating class. As a result, some states adopted statutes
authorizing student-initiated, nonsectarian, nonproselytizing prayer at school events.
Those statutes have to date been struck down as unconstitutional in Mississippi79 and
Alabama,80 and those results likely would be overturned by H.J.Res. 78. But
H.J.Res. 78 also appears to legitimate an affirmative role for government in
sponsoring or encouraging devotional exercises and other forms of religious
The report of the House Judiciary Committee on the RFA repeatedly describes
an affirmative governmental role under H.J.Res. 78 with respect to religious
expression, although the scope of government's role is not always clear. The report
of the House Judiciary Committee, for instance, states that the holdings of Engel v.
Vitale, supra, and Abington School District v. Schempp, supra, that government "may
not compose any official prayer or compel joining in prayer would not be
overturned,"81 but it also says that classroom prayer would be permitted. The
operative standard, the report states, is that which the Supreme Court applied to
group recitations of the Pledge of Allegiance in West Virginia Board of Education v.
Barnette, supra, where the Court held that a student with religious objections could
not be compelled to participate but that the exercise could proceed. Yet that is
precisely the model that the Court held unconstitutional in Engel and Abington for
religious exercises: School authorities prescribed the devotional exercises but
allowed individual students to opt out. If Barnette is the model, then H.J.Res. 78
would seem to disallow only government composition of prayers to be recited in the
classroom and to allow governmental sponsorship of voluntary devotional exercises.
977 F.2d 963 (5th Cir. 1992), cert. den. 508 U.S. 967 (1993).
Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996).
Chandler v. James, 958 F.Supp. 1550 (M.D. Ala. 1997) and 958 F.Supp. 1062 (M.D.
Ala. 1997). The case is now on appeal to the U.S. Court of Appeals for the Eleventh Circuit,
and the Governor has asked the Supreme Court for a writ of mandamus to stop enforcement
of the trial court's injunction.
H. Rept. 105-543, supra, at 6.
An affirmative governmental role also seems to be implied by the statement in
the Committee report that "Wallace v. Jaffree would be overturned so that silent
prayer would be permitted `so long as there was no government dictate either to
compel that it occur, or to compel any student to participate.'"82 At issue in Wallace
was a state moment of silence statute that had been amended to specify that the
moment could be used for voluntary prayer. The Supreme Court held that
amendment to have an unconstitutional legislative purpose of returning prayer to the
public schools. The implication seems to be that under H.J.Res. 78 government can
sponsor a moment of silence that openly allows for voluntary silent prayer.
The report further asserts that the RFA would "overturn" Stone v. Graham,
supra, which held unconstitutional a state statute mandating the posting of the Ten
Commandments on schoolroom walls. Such a statute would, the report states, be
"allow[ed], but not require[d]."83 The test, it says, would be "whether symbols of
differing faiths were afforded similar opportunity for display during their special
seasons." Again, the implication is that the RFA would legitimate an affirmative
government role with respect to the display of the Ten Commandments and other
Finally, the report states that the RFA "would allow local governmental seals to
reflect the people's religious beliefs, heritage, and traditions." The test, it says, is
"whether government sought to establish an official religion, rather than outlawing
traditions from a public forum."84 Again, the connotation is for an affirmative
governmental role in sponsoring religious expression.
Moreover, there does not appear to be any restriction in H.J.Res. 78 that would
limit the government's affirmative role to the areas discussed in the Committee's
report, i.e., classroom prayer, graduation prayer, religious clubs, and the display of
religious symbols on public property, including government seals and insignia. So
long as government did not coerce anyone into participating in religious activities or,
in the school context, prescribe the prayers, it could, apparently, sponsor or sanction
religious expression in a multitude of venues where current interpretations of the First
Amendment disallow it. Voluntary devotional exercises might be authorized at all
public school events, including athletic contests and school assemblies.85 Religious
symbols might be placed on courtroom walls.86 A judge might open his courtroom
sessions with prayer.87 A public school might have Warner Salman's "Head of Christ"
Id., at 7 (quoting written statement of Rep. Istook before the Subcommittee on the
Constitution on July 22, 1997, at 9).
Id., at 12.
Id., at 12 (quoting written statement of Rep. Istook, supra).
Contra Chandler v. James, supra.
Contra Harvey v. Cobb, supra.
Contra North Carolina Civil Liberties Union v. Constangy, 947 F.2d 1145 (4th Cir.
on permanent display.88 It is not certain that H.J.Res. 78 would legitimate all of these
forms of religious expression, but it does seem possible.
In sum, the language in H.J.Res. 78 regarding religious expression appears not
to change existing constitutional law regarding private religious expression, both
within and without the public schools. But it would seem to overturn a number of
judicial interpretations of the religion clauses of the First Amendment that have limited
government's involvement with religion in the public schools and elsewhere. More
specifically, it appears to legitimate an affirmative governmental role with respect to
religious expression. Government could not coerce anyone into participating in a
religious exercise or, in the public schools, prescribe the prayers. But it could,
apparently, sponsor or authorize religious expression in a wide variety of venues.
CRS Report 98-65A, The Law of Church and State: Developments in the
Supreme Court Since 1980 (January 8, 1998) (77 pages).
CRS Report 98-387A, The Law of Church and State: The Proposed Religious
Freedom Amendment, H.J.Res. 78 (April 20, 1998) (6 pages)
CRS Report 98-163A, The Law of Church and State: Public Aid to Sectarian
Schools (February 26, 1998) (6 pages).
CRS Report 93-680A, Prayer and Religion in the Public Schools: What Is, and
Is Not, Permitted (October 7, 1996) (29 pages).
CRS Report 96-846A, School Prayer: The Congressional Response, 1962-1996
(October 16, 1996) (36 pages).
Contra Washegesic v. Bloomingdale Public Schools, 33 F.3 679 (6th Cir. 1994), cert.
den., 514 U.S. 1095 (1995).