THE LAW OF CHURCH AND STATE: THE PROPOSED RELIGIOUS FREEDOM AMENDMENT, H.J.RES. 78
CRS Report for Congress
The Law of Church and State: The Proposed
Religious Freedom Amendment, H.J.Res. 78
David M. Ackerman
American Law Division
On March 4, 1998, the House Judiciary Committee voted to report H.J.Res. 78, the
"Religious Freedom Amendment," to the House. The proposal is the latest in a long
chain of constitutional amendments that have been introduced since the Supreme Court's
school prayer decisions of Engel v. Vitale and Abington School District v. Schempp.12
But this is the first time a constitutional amendment concerning church and state has
been ordered reported by a House committee. The scope and effect of H.J.Res. 78 are
also considerably broader than the school prayer issue that has been the focus of most
previous proposals, and in that respect the measure appears to build on the debate on
church-state issues that occurred in the 104 Congress. This report summarizesth
legislative developments on the proposal and briefly analyzes its likely legal effect if
added to the Constitution.
On March 4, 1998, the House Judiciary Committee ordered a modified version of
H.J.Res. 78 reported to the House on a party-line vote of 16-11. 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.
Congressional Research Service ˜ The Library of Congress
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, and on a party-line
vote of 8-4 on October 28, 1997, forwarded it to the full Committee.
The measure as ordered 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." The changes were all made
by the Subcommittee on the Constitution in a substitute proposed during mark-up by Rep.
Hutchinson (R.-Ar.); the full Committee approved the measure without further change.
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 vote).
H.J.Res. 78 is the latest in a long succession of constitutional amendments that have
been proposed since the Supreme Court handed down its school prayer decisions of Engel
v. Vitale and Abington School District v. Schempp in 1962 and 1963. But the proposal
addresses a broader range of church-state issues than its predecessors and appears to build
on competing constitutional proposals that emerged during the 104 Congress. Late inth
the first session of that Congress both Rep. Hyde (R.-Ill.) and Rep. Istook introduced
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.
The "Religious Liberties Amendment" (H.J.Res. 127) proposed by Rep. Istook provided3
To secure the people's right to acknowledge God according to the dictates
Court's church-state jurisprudence and competed for support among proponents of
amending the Constitution in this area of the law. Late in the second session of the 104th
Congress Rep. Armey (R.-Tex.) introduced a modified proposal in an effort to unify
proponents of changing the Constitution in this area of the law — H.J.Res. 184. But that4
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.
The only previous vote in the House on a constitutional amendment concerning
church and state in recent decades occurred in 1971, when the House voted in favor of
H.J.Res. 191, a school prayer proposal by Rep. Wylie (R.-Oh.), by a margin of 240-162;
but that was twenty-eight votes short of the necessary two-thirds majority. That measure
came to the House floor not by means of a Committee recommendation but through a5
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 or belief.
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.
Also called the "Religious Freedom Amendment," H.J.Res. 184, proposed by Rep. Armey,4
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.
For a full recounting of Congressional action on school prayer and related proposals, see5
CRS Report 96-846, School Prayer: The Congressional Response, 1962-1996 (Oct. 16, 1996)
H.J.Res. 78, with some modifications, essentially consolidates the Hyde and Istook
proposals of the 104 Congress into a single measure. If adopted, it would not repeal butth
would coexist in the Constitution with 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 ...." Nevertheless, H.J.Res. 78 clearly is intended to
alter a number of judicial interpretations of those clauses, particularly of the establishment
clause. Much of the legislative history of the proposal is yet to be written, of course, but
at this point in the measure's consideration its likely constitutional effects appear to
include the following:
(1) Public aid to sectarian institutions. H.J.Res. 78 appears to loosen considerably
the existing constitutional limitations on public aid to sectarian institutions, particularly
of direct aid. The proposal's concluding words --"Neither the United States nor any State
shall ... discriminate against religion, or deny equal access to a benefit on account of
religion"-- likely would require government to include even pervasively religious entities
in grant and contract programs. Currently, the establishment clause allows direct public
aid to religious entities if their secular functions can be separated from their religious ones
and the aid is channeled only to the entities' secular functions. But it bars direct aid if the
entity is so pervasively religious that the aid cannot be confined to "secular, neutral, and
nonideological purposes." Under H.J.Res. 78 pervasively religious entities could not be6
excluded from participation in direct public aid programs for which they would otherwise
be eligible, and existing Supreme Court constructions of the establishment clause that
require such exclusion would be overridden.7
The proposal's impact on indirect aid programs such as voucher and tax benefit
measures would not be quite as dramatic. Current interpretations of the establishment
clause allow such indirect aid to flow even to pervasively sectarian entities so long as the
primary recipient of the benefit has a genuinely free choice about where to use it and is8
not channeled by government toward a religious entity. H.J.Res. 78 would not change
that interpretation. But under current law government can include nonreligious private
entities in indirect public aid programs and exclude religious ones. H.J.Res. 78 appears
to mandate the inclusion of private religious entities, including pervasively religious ones,
in any indirect assistance program that also includes nonreligious private entities.
With respect to both direct and indirect aid programs, H.J.Res. 78 would also
override state constitutional provisions that bar the funding of religious entities.
(2) Religious activities on public property. Less certain is H.J.Res. 78's effect on
the Supreme Court's jurisprudence concerning religious activities in the public schools
and the display of religious symbols on public property. The Court has construed the
establishment clause to prohibit government from sponsoring or promoting religious
Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).6
See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988).7
Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Department of Services for8
the Blind, 474 U.S. 481 (1986); and Zobrest v. Catalina Foothills School District, 509 U.S. 1
activities or doctrines in the public schools and from sponsoring or displaying9
quintessential religious symbols by themselves on public property. But it has, in10
addition, interpreted the establishment, free exercise, and free speech clauses to provide
substantial protection to private religious expression. "[P]rivate religious speech, far
from being a First Amendment orphan, is as fully protected under the Free Speech Clause
as secular private expression," the Supreme Court has said. Thus, the Court has held the11
First Amendment to require public universities to allow student religious groups to use
campus facilities on the same basis as nonreligious student groups. It has upheld as well1213
the "Equal Access Act" extending the same right to students at the secondary school
level; affirmed released time programs of religious instruction; and, implicitly, approved14
the constitutionality of a properly drafted moment of silence statute. In addition, in a15
number of decisions it has held the First Amendment to protect private religious
expression on public property, including privately sponsored displays of quintessential
To the extent that the sentence in H.J.Res. 78 stating that "the people's right to pray
and to recognize their religious beliefs, heritage, or traditions on public property,
including schools, shall not be infringed" is read to apply only to private religious
expression, it appears to be largely consonant with, and not to alter, existing constitutional
law. But much of the ferment over the law of church and state has been stimulated by the
Court's decisions concerning government sponsorship and endorsement of religious
expression, and the legislative history of H.J.Res. 78 to date seems to make clear that it
is intended to undo at least some of that jurisprudence. Rep. Istook has testified, for
instance, that his proposal would overturn Engel and Abington to the extent that they
disallow group classroom prayer on a voluntary basis, reverse Lee v. Weisman's restriction
on prayer at graduation ceremonies, annul Stone v. Graham's prohibition on the posting
of the Ten Commandments on classroom walls, cancel County of Allegheny's ban on the
display of a creche by itself on public property, negate Lemon v. Kurtman's restriction on
government acting with a religious purpose, and supersede a number of lower court
decisions barring religious symbols on government seals and logos. But he has also said
that H.J.Res. 78 would retain the First Amendment's existing bans on government
Engel v. Vitale, supra; Abington School District v. Schempp, supra; Lee v. Weisman, 5059
U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985); McCollum v. Board of Education, 333
U.S. 203 (1948); Stone v. Graham, 449 U.S. 39 (per curiam); Epperson v. Arkansas, 393 U.S.
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 49210
U.S. 573 (1989).
Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995).11
Widmar v. Vincent, 454 U.S. 263 (1981).12
Zorach v. Clauson, 343 U.S. 306 (1981).14
Wallace v. Jaffree, supra.15
See, e.g., International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 67216
(1992); Niemotko v. Maryland, 340 U.S. 268 (1951); Board of Airport Commissioners of the City
of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987); and Capitol Square Review and
Advisory Board v. Pinette, supra.
mandating religious activity, prescribing the content of a prayer, and designating an
official religion. 17
H.J.Res. 78, in short, does not appear to be limited to protecting private religious
speech but would allow the government to play an affirmative role. But in the present
state of the proposal's legislative consideration, the scope of government's role with
respect to religious speech does not appear to be entirely clear. Greater clarity may
emerge once the Judiciary Committee issues its report on the proposal.
(3) "Acknowledge God". H.J.Res. 78's opening words — "[t]o secure the people's
right to acknowledge God according to the dictates of conscience" — would introduce a
specifically religious term into the Constitution for the first time. Unlike most state
constitutions and unlike the Declaration of Independence, the U.S. Constitution currently
makes no reference to God and mentions religion only in the Article VI ban on religious
tests for public office and in the first two clauses of the First Amendment.
CRS Report 98-65, The Law of Church and State: Developments in the Supreme
Court Since 1980.
CRS Report 98-163, The Law of Church and State: Public Aid to Sectarian Schools.
CRS Report 93-680, Prayer and Religion in the Public Schools: What Is, and Is Not,
CRS Report 96-846, School Prayer: The Congressional Response, 1962-1996.
Hearing Before the Subcommittee on the Constitution of the House Judiciary Committee17
on H.J.Res 78: Proposing an Amendment to the Constitution of the United States Restoringthst
Religious Freedom, 105 Cong., 1 Sess. (July 22, 1997) (testimony of Rep. Ernest J. Istook)
(unprinted). See also Istook, Ernest J., Legal Review & Analysis of the Religious Freedom