ACLU Asks Senate Committee to Kill Amendment to Virginia Constitution's Religion Clause

Affiliate: ACLU of Virginia
February 14, 2005 12:00 am

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Rather Than Clarifiying School Prayer Issue, Amendment “Only Muddies the Waters,” ACLU Says

RICHMOND, VA — The American Civil Liberties Union of Virginia said today that it is asking the Senate Privileges and Elections Committee to vote down a proposed amendment to the state constitution that may give government officials leeway to allow the imposition of religion on public school students. The Senate committee is scheduled to meet tomorrow afternoon to vote on the amendment. The House of Delegates has already given its approval to the measure.

“You only need to turn on the radio or television or listen to public officials give speeches to know that suppression of religious expression is not a problem in our society,” said ACLU of Virginia Executive Director Kent Willis. “Thanks to the Virginia Constitution and its influence on the U.S Constitution, we live in the most religiously free nation in history.”

Introduced by Delegate Charles W. Carrico, HJ 537 amends Article I, Section 16 of the Virginia Constitution, which is based on Thomas Jefferson’s Statute for Religious Freedom. The bill asserts a categorical right to practice religion on “public property, including public schools.” Carrico and other supporters of the bill claim that is it needed because some government officials are suppressing religion in public places.

In a memo being distributed today, the ACLU of Virginia argues that religion is alive, well, and freely practiced in Virginia, making the amendment unnecessary; that the bill may encourage government officials to entangle government with religion by allowing constitutionally impermissible prayers in public schools and government buildings; and, that the issuance of guidelines or legal advisories — not a constitutional amendment – is the proper way to keep government officials from infringing on religious liberty.

“We are concerned that the assertion of a categorical right to practice religions in public places will be interpreted to mean that all religious expression in places like public schools is permissible,” Willis said. “The Supreme Court has spent 50 years defining the delicate balance between a student’s right to pray and the illegal imposition of religion on students in the public school setting. This amendment, rather than clarifying the school prayer issue, only muddies the waters.”

“If some public officials do not fully understand the interplay between religious expression and separation of church and state,” Willis added, “then let’s educate them. That would do a lot more to solve the problem than adding broad, unexplained language to the Virginia Constitution.”

For more information about the ACLU’s defense of religious liberty, go to /ReligiousLiberty/ReligiousLibertyMain.cfm

The ACLU memo follows:

TO: Senate Privileges and Elections Committee
FROM: Kent Willis, Executive Director, and Aimee Perron, Legislative Director
DATE: February 14, 2005

RE: HJ 537, Amending the Virginia Constitution regarding religion in public places, including schools (Carrico)

HJ 537 adds the paragraph below to Article I, Section 16 of the Virginia Constitution, which is based on Thomas Jefferson’s Statute for Religious Freedom

To secure further the people’s right to acknowledge their faith according to the dictates of conscience, neither the Commonwealth nor its political subdivisions shall establish any official religion, but the people’s right to exercise their religious beliefs, heritage, and traditions on public property, including public schools, shall not be infringed; however, the Commonwealth and its political subdivisions, including public school divisions, shall not compose school prayers, nor require any person to join in prayer or other religious activity.

Summary of ACLU’s Opposition to HJ 537

HJ 537 is unnecessary because religion is freely and openly practiced in Virginia, including public places.

By asserting a categorical right to religious expression in public places, HJ 537 may encourage violations of the U.S. Constitution.

If legislators are concerned that some public officials do not completely understand the interplay between free exercise of religion and separation of church and state, the state should authorize the issuance of explanatory guidelines or legal opinions, not amend the Virginia Constitution.

HJ 537 is Unnecessary

According to supporters, the purpose of HJ 537 is to counteract suppression of religious expression in public places, especially in public schools. Yet they cite almost no evidence of such suppression.

Religious expression in Virginia — and the rest of the United States — is robust and does not need an artificial boost from Virginia’s legislators. The principles of the religious freedom articulated in the Virginia Constitution and the U.S. Constitution that followed have made the United States the most religiously free and diverse nation in history. Among all western democracies, ours has the highest percentage of people who believe in a Supreme Being and who regularly participate in religious rituals.

There is not a sufficient evidence of religious suppression to warrant an amendment to the Virginia Constitution.

HJ 537 May Encourage Violations of U.S. Constitution

Whatever its intent, HJ 537 may encourage governmental religions expression that violates the U.S. Supreme Court’s interpretation of the U.S. Constitution.

Government buildings, such as court houses and city halls, are public places. To assert a categorical right of religious expression in such places may, for example, lead to government sanctioned religious displays or exercises previously ruled impermissible by the Supreme Court.

To assert the same categorical right in public schools fails to acknowledge the delicate balance between the right of students to express their personal religious beliefs and the obligation of government officials not to endorse prayer, and may lead to new demands for impermissible religious expression in public schools. The U.S. Supreme Court has carefully articulated the rules governing religious expression in public schools through numerous courts rulings over the last 50 years. These rules cannot be reduced to a few lines in the Virginia Constitution.

Guidelines, not Constitutional Amendment, Is Appropriate Way to Address Issue

Public officials may not always understand the subtle points of the principles of free exercise of religion and separation of church and state. However, asserting a categorical right to practice religion in public places not only fails to explain the subtleties of the law, but is likely to add to any confusion that might already exist.

In the mid-nineties, when legislators were concerned that public school officials did not completely understand when prayer in the school environment was permissible and when it was not, the General Assembly asked the State Board of Education to produce guidelines on religious expression in schools and distribute them to every school in the state.

If lawmakers are concerned about suppression of religions expression in public schools, the way to address the problem is by revisiting and updating the Board of Education’s guidelines, not by making an ambiguous assertion of religious rights in the Virginia Constitution.

If legislators are concerned that public officials are suppressing religious expression in non-school settings, the state is free to issue guidelines or advisory opinions for government employees and persons holding elected office. Guidelines, unlike constitutional amendments, can be specific, addressing particular concerns, and can be easily updated to reflect accurately the Supreme Court’s most recent interpretations of the U.S. Constitution.

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