By Patrick OConnor - 06/21/05 12:00 AM EDT
Rep. Ernest Istook (R-Okla.) is expected to introduce a constitutional amendment to protect religious expression in schools and on other public property soon after the Supreme Court decides two landmark cases about the displaying the Ten Commandments on public grounds. The court is expected to announce its decision by Monday.
This is the first time the Supreme Court has ruled on a case regarding the Ten Commandments since 1980, when the court banned them from display in public-school buildings.
Istook’s amendment, the “Pledge and Prayer Amendment,” could be the next chapter in an ongoing battle over the propriety of religious expression on government-owned property. In seeking to establish a new constitutional protection for religious expression, it would also signal a new challenge of the federal judiciary by congressional Republicans.
Conservative lawmakers, including House Majority Leader Tom DeLay (R-Texas), have grown increasingly outspoken about what they perceive to be “judicial activism” by federal judges. They point to recent rulings about gay marriage, mandatory-minimum sentencing and Terri Schiavo, the brain-damaged Florida woman who died after a federal judge overturned a congressional decree to reinsert her feeding tube in March.
In addition, Roy Moore, chief justice of the Alabama Supreme Court, sparked a national controversy in 2004 when he lost his post after refusing to remove a Ten Commandments monument from the state courthouse.
The Pledge and Prayer Amendment “would allow the display of the Ten Commandments and other historical religious documents on public property,” “allow greater freedom for students who wish to pray” and “allow students to recite the entire Pledge of Allegiance” — including the line “one nation, under God” — according to bullet points put out by Istook’s office.
Istook has introduced comparable legislation in the past. In 1998, a similar amendment received a majority of support in the House but did not get the two-thirds majority required to pass a constitutional amendment. Istook said a typical amendment to the Constitution usually requires seven separate votes on the House floor before being passed into law.
Istook is reintroducing his amendment now because he feels the upcoming Supreme Court decision, whatever the ruling, will spur the national dialogue on this sensitive subject.
“I think we’re entering a fresh era where the bad court decisions are beginning to accumulate and weigh heavily on people’s minds,” Istook said last week.
The bill already has 45 co-sponsors, and Istook’s office has been circulating a “Dear Colleague” letter to build support for the legislation.
The Supreme Court is set to announce its decisions in Van Orden v. Perry and McCreary County v. ACLU before it recesses at the end of this month. The Van Orden case concerns the requested removal of a Ten Commandments monument from the grounds of the Texas statehouse, while the McCreary County case regards the legality of hanging framed copies of the Ten Commandments in the courthouses of two Kentucky counties.
In the Van Orden case, the lower court ruled that the monument, which was donated to the state in 1961, was primarily nonreligious. In McCreary County, the lower courts ruled that the display was unconstitutional.
Jonathan Turley, a professor at the George Washington University Law School who has followed both cases closely, said the high court could split its decision because the details of each case are so different.
The greater debate in both cases concerns the Establishment Clause of the First Amendment, which prohibits federal and state governments from establishing or funding an official religion. Conservative scholars argue that the clause was never intended to bar religious expression.
Men in Black, written by Mark Levin, a constitutional scholar often cited by DeLay, argues the doctrine of separation of church and state originated in a letter that Thomas Jefferson wrote to a group of Baptists in Danbury, Conn., and not from any section of the Constitution itself.
Turley said that a minority of legal scholars holds this view but that it has become the most prevalent rationale for any argument against the separation for church and state. Regarding the Istook amendment, Turley said that American voters have been reluctant to amend the Constitution except in extreme conditions.
“The American people have had an overwhelming disinclination to meddle with the Constitution,” Turley said.
The amendment comes at a difficult time for White House and the Congress, should Chief Justice William Rehnquist resign at the end of the current session, as expected. Turley said partisan rhetoric would be inflamed by a contentious confirmation battle over his successor.
“This is going to fuel the controversy with the regard to the next Supreme Court nominee,” Turley said.