On March 4th the House Judiciary Committee approved, by a party-line 16 to 11 vote (Republicans comprising the majority), a proposed Religious Freedom Amendment (RFA) to the Constitution sponsored by Representative Ernest Istook (R-OK). It was the first time that a House committee had ever acted favorably on an amendment to permit voluntary prayer in government schools. The measure has attracted more than 150 House co-sponsors and the support of many conservative and religious organizations. The amendment’s pertinent text 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, prescribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.

Congressman Istook claims that the amendment would help restore the original intent of the First Amendment, re-establish the importance of freedom of religious expression, and “force the courts to stop misusing the language in the First Amendment, thus ignoring Americans’ religious freedoms.”

Fatal Flaw

There is little controversy within conservative ranks about the need to safeguard the Constitution from the onslaught of activist federal judges. Most of those who have endorsed the RFA appear to be well-intentioned. But as has occurred so often in recent decades, the proposed amendment is seriously defective. Like other proposed amendments aimed at reversing judicial activism and usurpation in such areas as abortion, the forced busing of school children, and flag-burning, the RFA is predicated on the assumption that the Constitution is flawed and in need of change, when in fact the actual culprits are those who willfully misconstrue that document to promote extra-constitutional political, economic, and social agendas.

Congressman Istook has said that “only by repairing the damage to the Constitution can we reverse these decisions.” But the Constitution has not been damaged; it has simply been circumvented to our detriment.

In 1981, Professor Jules B. Gerard of Washington University explained in testimony to the Senate Judiciary Committee that amending the Constitution to overcome noxious Supreme Court decisions is an unwise course because it “requires super-majorities at every stage of the process. But why should society have to shoulder the burden of mustering super-majorities to overturn decisions like the abortion and death penalty cases, decisions without even a semblance of an anchor in the language, structure, or history of the Constitution? Amending the Constitution was designed to provide for unanticipated changes in our society, not to be a corrective for abuses of judicial power. Furthermore, resorting to the amendment process lends an aura of respectability to such decisions that they on no account deserve. It implies that the problems are created by the Constitution instead of by the judicial usurpations of legislative power, and regular resort to the amending process is bound to encourage rather than discourage misbehavior by the courts.”

In the case of the federal government’s role in religious issues, the First Amendment to the Constitution stands as a precise, unambiguous “Keep out!” sign: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” Additionally, Article I, Section 1 declares, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The oft-heard cliché that Supreme Court decisions are the law of the land is spurious, and when the High Court or lower federal courts conjure up laws, the judges involved are usurping authority nowhere granted by the Constitution.

Prayer to Mother Earth

The RFA is supposed to terminate such judicial excess, but it would fall short of doing so. For example, many of its supporters mistakenly assume that the RFA would completely overturn the landmark 1962 Engel v. Vitale decision prohibiting prayer in public schools. In truth, the RFA would only overturn that decision’s prohibition against students praying among themselves voluntarily; it would maintain the ban against a prescribed non-denominational prayer — a practice that was common in the public schools prior to the 1962 decision. The RFA is explicit on this point, stating: “Neither the United States nor any State shall ... prescribe school prayers.”

That is, students as young as kindergartners, if they wish to pray, would have to prescribe their own prayers. And because the RFA does not promote any particular “religious beliefs, heritage, or traditions,” but does expressly prohibit government discrimination “against religion,” a prayer to Mother Earth or to Satan would enjoy the same constitutional protections as a prayer to the God of the Bible.

The First Amendment did not interject the federal government into such troubling issues, of course, since it explicitly limited only the federal legislative authority (“Congress shall not...”) while enabling the states to maintain their own laws and protections. But the Supreme Court, in outlawing school prayer, broadly applied the First Amendment’s prohibition against “an establishment of religion” to any governmental entity including local school boards. The RFA would not only fail to end this judicial usurpation, but would legalize it.

Disastrous Effects

The “benefits” clause of the RFA, which states that “Neither the United States nor any State shall … deny equal access to a benefit on account of religion,” is also troubling. According to Dr. Derek H. Davis of Baylor University’s J.W. Dawson Institute of Church-State Studies:

This provision alone turns current First Amendment jurisprudence on its ear. State and federal government would be required to fund religion just as they now fund secular activities.... All 2000 or so religious groups in America will have their hand out for their share of benefits. Even if we could afford it, the effects would be disastrous to religion in several basic ways. First, religious groups would lose their autonomy from government, and a new era of government regulation would follow made necessary by churches’ use of government dollars. Second, fearful of the loss of benefits, churches would, over time, resign their “prophetic role” in society; churches with their hand out will be far less bold in calling government to account, far less willing to challenge and critique questionable government policies. Third, government could never equally fund all religions even if it wanted to. Religions with less political clout will be denied their share of the pie. It will be a “free for all,” hardly what should characterize religion in America. Moreover, under this amendment citizens would be required through their taxes to support and advance other persons’ religious beliefs, even those religions the taxpayer finds offensive. Jefferson, Madison, and a host of other founders, if possible, would rise from their graves in protest.

Representative Istook laments that “because the scope and intrusiveness of government into all aspects of American society has grown so rapidly, it has become all-pervasive, making it a rare occasion when there is no presence of government.... As the presence of government constantly expands,” the Supreme Court’s current interpretation of the First Amendment “crowds out opportunities for religion to be present and to flourish.” All of which is unquestionably true. The proper solution, however, is to force the big-government genie back into its constitutional jug, not to capitulate further by amending the Constitution in a way that would, in essence, sanctify past usurpations.

Representative Istook notes that the federal government devotes “over $7 billion in federal Pell Grants to students, $23-billion a year in federally-guaranteed student loans, and $17-billion a year in direct lending to students, all of which may be used at private and church schools, as well as at public schools. The RFA’s ‘benefits’ provision protects these programs.” But where is the authorization for such programs in the Constitution as presently written? The answer is “nowhere,” but adoption of the RFA would give them constitutional legitimacy, thereby delivering a devastating blow to those who are working for a return to sound constitutional standards and a reduction in the size of government. According to Congressman Istook, “the RFA does not create a program of vouchers for education. If and when a unit of government chose to create them, however, the RFA would simply assure that all individuals and private entities are afforded equal access to them.” Tax-supported vouchers pose a serious threat to both secular and sectarian private schools, since federal funding would inevitably lead to federal control. The RFA would sanctify vouchers, along with a multitude of currently unconstitutional federal endeavors, and would, in the words of Harvard-trained attorney and constitutional scholar Herbert W. Titus, virtually ensure “a government stranglehold on the social programs of the Church and other religious organizations.”

Titus contends that the RFA “would — for the first time in history — grant express First Amendment approval of a system of tax-supported government schools. In exchange for a sop to Christian people who have been pushed out of the educational mainstream, the Istook amendment leaves the Government’s monopolistic educational practices constitutionally untouchable. The amendment not only doesn’t challenge government domination of the education of our children, it legitimates it.”

Regarding the controversial “benefits” clause, Titus agrees that the language “gives First Amendment backing — again for the first time — to federal government welfare programs. Moreover, it affirms the legitimacy of government subsidization of church-run social programs. Thus, the Amendment invites churches to seek tax subsidies, thereby virtually assuring Government control of a whole array of social services traditionally administered by the Church solely with private funds.” If ratified, he warns, the RFA “would lead churches and other voluntary associations to become dependent upon public funding for their community outreach activities. That dependence, in turn, would strengthen the hand of government officials to force them to compromise their religious convictions to conform to government policies.”

Titus reminds us that “the First Amendment was designed to separate the jurisdiction of the State from that of the Church in order to ensure the Church’s business would not be run by the State.” But the RFA “abandons that jurisdictional principle, opting instead for a guarantee that forces the State to confer its ‘benefits’ upon the Church.” It is, he warns, “a double-edged sword that will inevitably put the government in control of the Church, thereby compromising its moral and religious teaching.”

Representative Istook further asserts that “provisions of state constitutions have likewise been used to deny using general benefit programs when there was any connection of religion. Again, the RFA will rectify this.” But again, since when has it become a constitutional function of the federal government to force states to adopt policies regarding their expenditure of funds on “benefit programs”?

Clearly, the RFA would make changes, for the worse, in the federal-state relationship currently established by the Constitution.

The ominous implications of the RFA’s “benefits” clause are reason enough for conservatives and constitutionalists to vigorously oppose the measure. The issue, properly framed, should not be how to make room for religious groups at the federal trough, but how to phase out those programs that violate the Constitution. The goal should not be achieving a share of federal education funds for religious entities, but instead abolition of federal funding and control of education while encouraging the growth of home schools and private schools free of tax-supported vouchers and other subtle government shackles.

Open Door to Evil

Some critics of the RFA also have legitimate concerns about its pro-prayer provisions. They worry, for instance, that by authorizing student-initiated prayer the RFA could open the door to prayers by devotees of every conceivable religion. If “equal access to a [public] benefit on account of religion” must be granted, and if no religion can be discriminated against, on what basis could satanic or wiccan symbols be barred? And as Dr. Davis points out, the RFA could “actually devalue religion, even trivialize religion, particularly in the minds of young children. Whatever may be said about the right of each person within American society to express his or her belief through public prayer, one should question whether we want to convey the message that every religious and philosophical belief is on equal par with all others.”

An indication of the problems that arise when Congress strives to fine tune the First Amendment occurred on October 23rd of last year when a vote on the RFA scheduled by the House Judiciary Committee’s Subcommittee on the Constitution was postponed five days after Jewish groups protested that it coincided with the Jewish holidays of Shemini Atzeret and Simchat Torah. Conceivably, if the RFA is approved, and enough holidays can be identified to cover each day of the year, Congress could be completely shut down. (Which, come to think of it, would answer the prayers of many.)

Has the fuss about prayer in government schools been worth the time and effort expended over nearly four decades? Especially considering the tropism toward atheism that is inherent in such schools? As Princeton theologian A.A. Hodge astutely observed more than a century ago:

It is capable of exact demonstration that if every party in the State has the right of excluding from the public schools whatever he does not believe to be true, then he that believes most must give way to him that believes least, and then he that believes least must give way to him that believes absolutely nothing, no matter in how small a minority the atheists or the agnostics may be. It is self-evident that on this scheme, if it is consistently and persistently carried out in all parts of the country, the United States system of national popular education will be the most efficient and wide instrument for the propagation of Atheism which the world has ever seen. [Popular Lectures on Theological Themes (1887).]

Perhaps the time has come for Christians to stop trying to make a silk purse out of the sow’s ear and focus on a separation of school and state so that they can instill their (and not the state’s) religious values without generating the sort of bitter, community-dividing rancor that tax-funded education inevitably spawns.

Constitutional scholar Herbert Titus is convinced that the RFA would actually “reinforce discrimination against Christians, not alleviate it.” He notes, for instance, that it “does nothing to ensure that the nation’s Biblical heritage may be drawn upon to shape law and policy today. By keeping silent on that issue, the amendment actually reinforces the faulty ‘religious neutrality’ assumption” by which the Constitution’s Establishment Clause [prohibiting “an establishment of religion”] has been twisted to require “government officials to formulate the nation’s public policy on ‘secular’ grounds.”

Titus points out that our modern Supreme Court has “demanded that the Bible … be excluded from the public school classroom,” so that “America’s schoolchildren are taught history, government, literature, mathematics and science as if there is no God. The Istook Amendment will guarantee this discriminatory practice will continue: Atheistic teaching philosophy will keep its monopoly grip inside the schoolhouse, while an occasional voluntary prayer meeting will take place around the flag pole in the schoolhouse yard.”

Titus concludes that the “Constitution does not need to be amended; it needs only to be obeyed. The Congress, the President and the Courts need to amend their ways to conform to the written Constitution we already have. Until they do, no constitutional amendment will stop them from doing what they want to do anyway.”

Congress Is the Key

So if not the RFA, what can be done to rein in a renegade federal judiciary? The answer, sufficient for a Congress with gumption to use its constitutional authority (and a people supportive of a Congress that does), may be gleaned from the Constitution itself. For example:

• Appointment. The President is authorized to appoint federal judges, but only “by and with the advice and consent of the Senate.” A constitutionally competent Senate would refuse to confirm would-be judicial usurpers.
• Impeachment. Members of the federal judiciary receive lifetime appointments, but only “during good behavior.” The House may impeach, and the Senate remove from office, those judges deemed to be deficient by that standard.
• Abolition. Congress has authority to defund, even abolish, lower federal courts (but not the Supreme Court) to stop judicial usurpation.

There is yet another weapon in the congressional arsenal that is particularly pertinent to our discussion here. Article III, Section 2, Clause 1 of the Constitution defines the categories of cases which fall within the purview of the federal judiciary. Clause 2 then specifies: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the supreme Court shall have original jurisdiction. In all the other cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (Emphasis added.)

Congress, in other words, has the authority to dictate which, if any, classes of cases may be heard by the lower federal courts and, other than the types of cases specified in the Constitution, may also limit the cases that may be reviewed by the Supreme Court. By simple legislation, Congress can strip federal courts of jurisdiction to hear cases on appeal that involve issues such as those mentioned earlier, including school prayer and other aspects of religious expression.

Whereas amending the Constitution is a tedious process that would entail a two-thirds vote of both the House and Senate, and ratification by three-fourths of the states, a simple majority vote of both Houses is all that is needed to limit appellate jurisdiction. And, as Notre Dame University law professor Dr. Charles E. Rice points out, whereas a constitutional amendment would be virtually permanent, appellate jurisdiction could be easily restored whenever Congress decided that the courts “showed signs of a return to sanity.”

There is ample precedent for this crucial congressional prerogative. As early as 1796, in Wiscart v. D’Auchy, the Supreme Court held that “if Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” In 1845 (Cary v. Curtis) the Court held that “the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.” And in 1865 (Daniels v. Railroad Co.) the Court reiterated that “it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.”

Historical Precedent

Perhaps the most explicit confirmation of congressional authority to limit the Supreme Court’s appellate jurisdiction was Ex parte McCardle (1868), in which a private citizen, William McCardle, was arrested by the military under authority of the Reconstruction Acts. When denied habeas corpus, he appealed to the Supreme Court. Fearing the Court might declare the Reconstruction Acts unconstitutional, Congress enacted a provision, over a presidential veto, that abolished the law on which McCardle had based his appeal. Even though it had already heard arguments in the case, the High Court recognized Congress’ constitutional authority and dismissed McCardle’s appeal. Chief Justice Samuel Chase, writing for a unanimous Court, explained: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of the court is given by express words.” Moreover, “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.”

So it is not a question of whether Congress has the power to limit or abolish appellate jurisdiction but a question of if and when that power will be used.

Legislation stripping the federal judiciary, including the Supreme Court, of its authority to hear school prayer and other “social issues” cases could be worded as simply as this: “Pursuant to Article III, Sections 1 and 2 of the United States Constitution, no court of the United States shall have the jurisdiction to make any decision, or issue any order, affecting [fill in the blank].” By utilizing this purloined-letter provision of the Constitution, Congress could achieve the claimed worthwhile ends of the RFA by a process far less tedious than for an amendment. And such evils as those likely to metastasize from the RFA could be avoided. It is time for Congress to dust off this important component of the checks-and-balances system.