Rep. Ernest J. Istook is angry because kids can't sing "God Bless America" in public schools.
The Oklahoma Republican is so concerned about the matter that he insists it's necessary to amend the Constitution to allow school-sponsored religious activity in classrooms. On Oct. 25, Istook announced that he will soon re-introduce a school prayer measure that he calls the "Religious Speech Amendment."
The Bill of Rights must be changed, Istook argues, because the people are demanding increased religiosity in government and public life since the horrific terrorist attacks on America Sept. 11. In a "Dear Colleague" letter that has been circulating in the House of Representatives, Istook asserts that the time is right to amend the Constitution to allow for official school prayer.
"On September 11, Members of Congress stood in solidarity on the steps of the U.S. Capitol Building and sang 'God Bless America,'" Istook wrote. "Yet America's school children for years have been restricted from similar expressions of faith....It's time for students and all other Americans to enjoy the same freedom we exercised on the Capitol steps."
There is one flaw in Istook's argument, however: Since Sept. 11, numerous media outlets have reported instances of public school students all over the nation singing "God Bless America" and no one has tried to stop them.
Critics suspect that Istook may simply be trying to take advantage of the national mood to promote closer ties between religion and government. His amendment isn't a new idea it's a revamped version of a proposal he first submitted in 1996. That amendment, then called the "Religious Freedom Amendment," faced a House vote in June of 1998. The final tally was 224 in favor to 203 against, 61 votes short of the two-thirds majority required for passage of a constitutional amendment.
This year, Istook has removed one provision in the amendment guaranteeing religious groups access to tax funds. The measure now reads: "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, or prescribe school prayers."
Americans United for Separation of Church and State quickly announced its opposition to the Istook proposal. AU Executive Director Barry W. Lynn noted that the amendment is unnecessary since students already have the right to pray in schools.
"This constitutional nightmare would grievously damage religious liberty in this country by blurring the line between church and state," Lynn said. "This is offering a solution to a problem that doesn't exist. Religious speech is already alive and well in this country, guaranteed by the First Amendment."
Lynn charged that Istook's claims about censorship of "God Bless America" are specious and are designed to link the amendment to the resurgence in patriotism around the nation. Lynn, an attorney and a minister, said it's highly unlikely that a federal court would declare the singing of "God Bless America" in a public school unconstitutional. Like the phrase "under God" in the Pledge of Allegiance or "In God We Trust" on money, patriotic songs that mention God are regarded by the courts as examples of "civil religion," ceremonial references to generic religion that in most cases don't violate the Constitution.
But having said that, Lynn added that no public school can coerce or require students to sing "God Bless America," just as they cannot require students to recite the Pledge of Allegiance.
Istook's revamped amendment is perhaps the most prominent church-state development in the post-Sept. 11 world. It is by no means the only one. Around the country, some political leaders, school officials and Religious Right activists have recommended various schemes that would violate the separation of church and state as a means to respond to the terrorist attacks.
Some of these proposals were spurred by the outbreak of "civil religion" that quickly followed the attack. Most of these endorsements of religion by political and civic leaders were broadly "non-sectarian." While not every American felt comfortable with the religious sentiments expressed by government leaders or the official calls for prayer, courts would be unlikely to declare any of them constitutional violations.
Days after the attacks, for example, President George Bush declared a National Day of Prayer and Remembrance and led services alongside Billy Graham at the National Cathedral in Washington. Surveying the packed church, Graham asserted, "We've always needed God from the very beginning of this nation, but today we need Him especially."
But some city and public school officials went way beyond activities like endorsing God in a generic way, calling for moments of silence or leading crowds in singing "God Bless America." Demands for official prayer in public schools, calls for the posting of the Ten Commandments in government buildings and other proposals that would clearly violate the separation of church and state are becoming more common.
A sampling of recent disputes includes:
Ringgold, Ga.: Just days after the attack, the city council voted unanimously to display three frames on the walls of the city hall. One contains the Ten Commandments, one contains the Lord's Prayer and the third is empty. The displays went up Oct. 29.
The empty frame, Councilman Bill McMillon explained to reporters, is "for those who believe in nothing." McMillon is not worried that the display might offend Muslims and other non-Christians. "We don't have any of them here," he said.
The town of about 1,800 just south of the Tennessee line is now facing the threat of a lawsuit from the American Civil Liberties Union.
Hamilton County, Tenn.: In the wake of the attack, county commissioners voted to post the Ten Commandments in government buildings. Chairman Bill Hullander admitted that the action may spark a lawsuit but added that if a court does declare the action unconstitutional, "I would sure not want to be the person to walk up there and pull the nail out of it, so to speak."
Lafayette Parish, La.: The Lafayette Parish School Board voted 5-4 Nov. 7 to ask federal officials to reconsider "the restrictions placed on the public expression of religious faith in the form of spoken prayer." The matter was brought to the board by two members, one of whom stated that the separation of church and state is not in the Constitution.
The resolution approved by the board cites several quotes allegedly made by Founding Fathers that appear to be at odds with the separation of church and state. However, many are taken out of context and at least one is bogus a long-since debunked "quote" by James Madison lauding the Ten Commandments as the foundation of the U.S. government.
North Carolina: In Craven and Beaufort counties, the local branch of the Christian Coalition is pressuring the school boards and county commissions to erect the Ten Commandments. The state legislature recently passed a bill stating that public schools may post the Commandments, and several local school districts are said to be considering the move.
Texas: Gov. Rick Perry told reporters public schools should ignore the Supreme Court and sponsor prayer "at this very crisis moment in our history." Perry, who was criticized for allowing a Protestant minister to lead a prayer "in Jesus' name" during a patriotic public school rally in the city of Palestine, Texas, Oct. 22, went on to say that he is prepared to make school prayer a central issue of his re-election campaign.
A few weeks after Perry's announcement, the Texas Board of Education voted in favor of a resolution stating that school districts should protect the rights of students to join in "voluntary, noncoercive prayer."
The board passed a resolution encouraging districts to "preserve and protect" students' rights to "express their feelings of faith and patriotism." The measure was written by board member Richard Watson (R-Gorman), a pharmacist who has been pastor of a Baptist church for 23 years.
The resolution refers to the Sept. 11 terrorist attacks and the "national rekindling of expressions of faith and patriotism" and asserts "many misguided individuals attempt to pressure schools into restricting religious expression which the Supreme Court has not prohibited."
Greenbrier, Ark.: The school board has approved a policy allowing "student-led, student-initiated" prayer over the public address system during school events. Superintendent Mike Mertens said the board decided to approve the policy after reading proclamations calling for prayer issued by President George W. Bush and Arkansas Gov. Mike Huckabee after the terrorist attack.
In a letter to all state public schools issued Oct. 8, Huckabee urged students to "turn to their faith and pray." The letter was accompanied by a six-page memo from the state department of education summarizing the law on school prayer.
Rupert, Idaho: The Minidoka County School Board is considering a request to allow official prayers in schools. Clint Harper, a local resident, petitioned the board to reinstate school-sponsored prayer as a way of addressing the "distressing events that have transpired in our nation and the war against terrorism...." Several board members say they support the idea but acknowledge the legal difficulties, reported the Associated Press.
Florida: Lawmakers were called into special session to balance the state budget but ended up talking about school prayer as well. The House voted 87-30 on Oct. 24 to approve a bill that would allow local school boards to establish "student-led" prayer at graduation and other "noncompulsory" school events. (The state Senate did not take up the measure but may do so later during other special sessions that are planned this year.)
The measure's sponsor, Rep. Wilbert Holloway (D-Miami), ignored charges that House members were wasting time debating the measure. "The urgency is, our nation is called to prayer, and this is a time when the nation should come to prayer," he said.
Pennsylvania: Members of the House of Representatives voted with only one dissenter to require all public schools to begin each day with a brief period of silent prayer or meditation "with the participation of all the pupils." The bill also requires every public and private school in the state to lead students daily in the Pledge of Allegiance. Only those students who have a signed note from their parents would be excused.
Legal experts have questioned the legality of the measure, especially its provisions requiring private schools to conduct the Pledge. The state Senate is expected to give the proposal more thorough deliberation.
Batavia, N.Y.: Officials at Batavia High School are under fire for holding a school-wide assembly Sept. 14 to honor those who died during the terrorist attack, during which an assistant principal led the students in prayer. Some complaints have been lodged.
Inman, S.C: A 13-year-old junior high school student is circulating a petition demanding the right to pray over the school loudspeaker. Justin Lancaster says he was inspired to start the drive after President Bush called for public prayer following the Sept. 11 attack, telling the Spartanburg Herald Journal, "They want us to pray, but we can't do it in school over the intercom so everybody can actually hear what you need to pray about." U.S. Rep. Jim DeMint (R-S.C.) told the paper he backs the effort.
State lawmakers in South Carolina also seem receptive, although they are not willing to go as far as Lancaster proposes. A group of legislators in October introduced a bill that would convert a current South Carolina law that provides for "a minute of mandatory silence" each day to a "moment of silent prayer."
Harvey, Ill.: City officials in this Chicago suburb are interested in finding a way to return official prayer to schools. A resolution passed by the council in early October calls school prayer an appropriate response "in light of the recent acts of terrorism in our country."
Mayor Nickolas Graves told the Chicago Sun-Times he plans to hold a meeting with local public school officials to discuss ways to get "voluntary" prayer into the schools.
Attorneys at Americans United are reviewing these and other matters and will take appropriate action. AU director Lynn noted, for example, that public schools may not sponsor prayer, Bible readings, religious assemblies and other sectarian activities under the guise of responding to the national tragedy.
As Lynn told The New York Times on Oct. 23, "The Constitution has not been suspended since Sept. 11."
Nevertheless, Religious Right leaders are expected to push the envelope. In that same Times story, Richard Land, chief Washington lobbyist for the ultra-conservative Southern Baptist Convention, asserted that after Sept. 11, advocates of church-state separation "are going to have a harder time making their case" and implied that the public wants to see more expressions of faith in government and schools.
But Lynn noted that Land's assertion seems undermined by the facts. He pointed out that many of the questions about religion in public schools and government that Americans United received post-Sept. 11 fall into legal gray areas or deal with activities the courts have allowed. Considering the number of public schools and local governments in the nation, there were relatively few cases of government officials engaging in open defiance of church-state separation.
In those cases of clear violations, Americans United attorneys are taking action. The AU legal team, for example, has already written to municipal officials in Ringgold, Ga., and other communities that have posted the Ten Commandments, warning them that they are violating the First Amendment. AU attorneys also wrote to school officials in Palestine, Texas, and Batavia, N.Y., advising them that school-sponsored prayer remains unconstitutional.
Americans United is also continuing with its regular activities in defense of church-state separation. Prior to the attack, AU attorneys were working on filing a lawsuit in federal court challenging a Ten Commandments display erected in the Alabama Supreme Court building by Chief Justice Roy Moore. That case was filed Oct. 30. (See "Monumental Mistake," page 8.)
At the same time, Americans United is undertaking proactive activities to educate the public about the importance of maintaining the separation of church and state in the wake of the attacks. In October the organization drafted a new position paper titled "Church-State Separation and the Aftermath of Sept. 11: Applying the Constitution in the Wake of the Terrorist Attacks." The document, which can be accessed through Americans United's website (www.au.org), was made available to activists, AU chapter leaders and others nationwide.
The position paper begins by noting the upswing in instances of "civil religion" but goes on to add, "It is important to remember that our civil liberties are at great risk in times of crisis, and that we should therefore be more, rather than less, vigilant about protecting them from erosion in the coming weeks and months." From there it makes a number of specific points about religion's role in public schools and government institutions.
The AU paper observes that at a time when the nation is under attack by forces that dislike our country in part because of its policy of separation of religion and government, it would be ironic to weaken that principle.
Concludes the statement, "The wall of separation has given the United States more individual freedom, religious diversity and interfaith peace than any nation in world history. At this time of crisis, that diversity is a source of great strength, not a weakness. We as a nation should not hesitate to protect that wall from attack."
Americans United believed it was important to end the statement with a call for the nation to recommit itself to church-state separation since there are voices in the country demanding the exact opposite. For example, many Religious Right leaders and media commentators have expressed the view that the nation should respond to the terrorist attacks by lowering the wall of separation and instituting government-promoted religious worship in public schools.
AU's Lynn said calls like this are misguided and in the long run would do more harm than good if implemented. Official school-sponsored prayer, he noted, would be divisive in many communities where children represent not only dozens of Christian faiths but also come from Muslim, Jewish, Buddhist, Hindu and non-theistic households, among others.
"There is no 'one-size-fits-all' prayer," remarked Lynn.
Lynn said public schools and governments must strive for the right balance under the separation of church and state: All citizens, including public school students, have the right to engage in voluntary prayer and other religious activities, but public schools and other units of government may not sponsor religion or coerce or pressure anyone to take part in worship against his or her will.
Will the wall of separation between church and state survive attempts to use the Sept. 11 tragedy to lower it? Derek H. Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor University in Waco, Texas, believes it will.
"I think most courts are going to say that the events of Sept. 11 and the need to reinvigorate ourselves with religion does not mean we suspend the Constitution and all of the rights and rules we have established over the years," observed Davis.