Proposed Religious Freedom Amendment

[Brooks Fudenberg]

Eugene Volokh quotes the Istook amendment:

>     "To secure the people's right to acknowledge God according to
>     the dictates of conscience:  The people's right to pray and to
>     recognize their religious beliefs, heritage or traditions on
>     public property, including schools, shall not be infringed.  The
>     government shall not require any person to join in prayer or
>     other religious activity, initiate or designate school prayers,
>     discriminate against religion, or deny a benefit due to religion."

And he asks,

> Would it guarantee access to government property for prayer and other
> religious conduct beyond what's currently provided by public forum
> doctrine (or for that matter government-as-educator doctrine)?

It depends in part on whether courts read it via a "plain meaning" or an
"intent of the framers" approach.  I don't know enough about the intent to
say what that would lead to.  (Speculations after the signature line).

As for plain meaning:
The joker in the deck is "shall not be infringed."  What the ruckus does
*that* mean?  It seems to (intentionally) echo the first amendment free
speech clause.  But that first amendment clause (according to doctrine)
did not establish an absolute right to free speech; rather, common law
limitations remained intact (such as libel, giving military secrets to
our enemies).  So I would be tempted to read the proposed amendment as
saying, "whatever the right to pray on government property was, at the time
of the amendment, shall remain" -- i.e., it is without force today (but may
in the future serve to prevent "infringe[ment]" of the right as it exists
today.)

On the other hand, the free speech clause has been read to protect speech
that was not protected at the time of Ratification.

So the ultimate result of the amendment, were it to be adopted, seems no
more discernible, a priori, than was the 14th amendment at time of
ratification.



Brooks R. Fudenberg
University of Miami School of Law


P.S.  Some possible interpretations of the intent, once we get around
(or ignore) the "shall not be infringed" language:

1.  The amendment means only that school prayer is permissible.

2.  The amendment means that even where a "reasonable observer" would see
the speech as government endorsement, the establishment clause does not
prohibit the speech -- the amendment entitles religious speech to the same
level of public fora protection that other speech gets on a given property.
Planting a cross sufficiently close to the state Capitol that reasonable
observers would see it as endorsement must be allowed, if other speakers
have planted signs at the property.

3.  The amendment creates a preferred status for religious speech.  Even
where government may properly prohibit speech, as long as you are properly on
the premises, you may lead a prayer.

4.  The amendment perhaps creates a right of access to at least some
otherwise-closed property -- e.g., an empty lot the City is holding.)