The U.S. House of Representatives studied the vexing problem of juvenile crime last month and emerged with an answer that to many Americans probably seemed curious: a four-pronged assault on church-state separation.
The wall of separation between church and state endured a sustained series of assaults during a 24-hour period June 16 and 17. Working into the early morning hours, members unleashed a legislative barrage of almost-certainly unconstitutional proposals as they deliberated the Consequences for Juvenile Offenders Act of 1999 (H.R. 1501).
When the dust settled, four riders passed that would seriously compromise the separation of church and state:
- A measure promoting display of the Ten Commandments in public schools and other public buildings. Sponsored by Rep. Robert Aderholt (R-Ala.), it was approved 248-180.
- A measure, sponsored by Rep. Tom Tancredo (R-Colo.), encouraging religious memorials and services at public schools where students or others have been slain, which passed 300-127.
- A measure discouraging lawsuits that challenge church-state violations at public schools. It was sponsored by Rep. Jim DeMint (R-S.C.) and passed 238-189.
- A "charitable choice" proposal granting tax dollars to churches to run social service programs for juveniles. Sponsored by Reps. Mark Souder (R-Ind.) and Phil English (R-Pa.), it passed 346-83.
Congress put the juvenile justice bill on a fast track after the tragic school shootings at Columbine High School in Littleton, Colo., April 20. Religious Right groups have been busy exploiting that incident to push their agenda and attack church-state separation. It's not surprising that they sought to turn the juvenile justice bill into a vehicle for their pet notions.
Of the four proposals, the Ten Commandments measure captured the most national attention. The news media went into overdrive as headlines blared that the House had approved public schools posting the Ten Commandments. The measure was debated on talk radio all over the country and on a spate of television "talking head" shows. (Americans United Executive Director Barry W. Lynn and other AU staffers appeared on many of the programs.)
Aderholt's proposal is an altered version of his "Ten Commandments Defense Act," a bill the Alabama Republican has been unable to persuade the Congress to consider as freestanding legislation. It directs the federal courts to leave decisions about government-sponsored Ten Commandments displays up to state governments.
Speaking on the House floor, Aderholt said posting of the Decalogue "is one step that states can take to promote morality and work toward an end of children killing children."
Legal authorities said the Aderholt proposal is deeply flawed. Most notably, the U.S. Supreme Court has already ruled in 1980's Stone v. Graham decision that posting the Ten Commandments in public schools is unconstitutional. Lower federal and state courts have struck down the display of the Decalogue in courthouses and other government buildings. In addition, Congress does not have the power to tell the federal courts how to interpret the Constitution.
Nevertheless, the House passed the measure by a comfortable margin, 248-180.
The speechifying by the Religious Right squad reached new depths of rhetorical excess on and off the House floor. Rep. Bob Barr (R-Ga.), for example, blasted opponents of the measure for saying it was not the proper time to debate the issue and seemed to suggest that the shooting at Columbine High would not have occurred had the document been posted.
"When in God's name...is it time?" Barr fumed. "When we have children killing children in our schools, killing teachers in our schools, is it time? Is it the time when we have another tragedy in schools? Will it be time when we have more teachers killed? Will it be time when we have more weapons of mass destruction being taken into our schools? Maybe then it would be time. But I say...it is time now."
At a June 16 "God not Guns" rally on Capitol Hill before a throng of Bible-waving fundamentalist ministers, Majority Whip Tom DeLay (R-Texas) blamed the Columbine shootings on the absence of school-sponsored prayer.
"I got an e-mail this morning that said it all," observed DeLay, who is widely recognized as a top Religious Right point man in Congress. "The student writes, 'Dear God: Why didn't you stop the shootings at Columbine?' And God writes, 'Dear student: I would have, but I wasn't allowed in school.'"
Later, on the House floor, DeLay expanded the possible list of suspects in the Columbine incident to include "the culture of abortion," the teaching of evolution and "liberal relativism that has hollowed out the souls of too many in our society."
DeLay's broadside drew a response from Rep. Barney Frank (D-Mass.), who quipped that now even Charles Darwin was being blamed for the Columbine massacre.
As the debate raged into the night, opponents pointed out that there are several different versions of the Ten Commandments. "Whose Ten Commandments?" asked Rep. Jerrold Nadler (D-N.Y.). "Which version? The Catholic version? The Protestant version or the Jewish version? They are different, you know. The Hebrew words are the same, but the translations are very different, reflecting different religious traditions and different religious beliefs."
At 12:30 a.m., Rep. Robert C. Scott (D-Va.) rose to chastise the proposal's supporters for distracting members from the business at hand. "Amendment One of the Constitution says the Congress shall make no law respecting an establishment of religion," Scott said. "Obviously picking one religious symbol establishes that religion."
Continued Scott, "If [the measure] is constitutional, we do not need it. If it is not constitutional, it does not make any difference whether we pass it or not. We are wasting time.... I would hope we would get back to the serious consideration of juvenile crime."
The nation's media focused on the Ten Commandments aspect of Aderholt's proposal, but his gambit is actually much more sweeping. It contains a second provision stating that the "expression of religious faith by individual persons on or within property owned or administered by the several States" or local governments is constitutional.
Legal observers say that portion of the Aderholt proposal is little more than a backdoor effort for state-sponsored prayer in public schools. It could also open the door to preaching and proselytism.
The House vote does not mean that Aderholt's Ten Commandments and school prayer proposal is law. The Senate version of the juvenile justice bill contains the religious memorials rider offered by Tancredo and the charitable choice provision but not Aderholt's proposal. The two versions will have to be reconciled in a conference committee, and some observers believe it is unlikely the Ten Commandments plan will be included in the final version of the bill.
Even if it survives, the bill could face a presidential veto. While attending an economic summit in Germany, President Bill Clinton told reporters he opposes the Ten Commandments measure, insisting that it "raises constitutional questions."
"We don't want to raise constitutional questions," he remarked. Clinton said he hopes to work with Congress to promote values education in public schools instead.
Clinton spokesman Joe Lockhart refused to say if the president would veto the entire bill if the measure remains intact.
Regardless of the Aderholt measure's ultimate fate, the vote on it is likely to have political repercussions and could become an issue in the 2000 race for the White House.
Campaigning in Virginia, GOP front-runner Texas Gov. George W. Bush said he has no problems with posting the Ten Commandments in schools and government buildings. (Republican hopefuls Steve Forbes and Gary Bauer have also endorsed the idea.)
Asked which version he would post, Bush replied, "The standard version. Surely we can agree as a society on a version that everyone can agree to." (Bush, an Episcopalian turned Methodist, did not explain which version of the Ten Commandments qualifies as "standard.")
In all of the discussion over the Ten Commandments measure, it was easy to overlook the fact that the House also passed three other anti-separationist riders.
The Souder-English measure inserting charitable choice into the bill sparked a shorter, less impassioned debate on the House floor but carries grave consequences for church-state separation should it become law. It permits churches and other sectarian organizations to use taxpayer money for programs designed to combat juvenile crime.
Rep. Chet Edwards (D-Texas) criticized the rider, suggesting that it would lead to strife between religious denominations as they compete for federal dollars.
"Five years from now, we will have the Baptists arguing with the Methodists, with the Catholics, with the Jews, with the Hindus, with the Muslims, over who got their proportional share of the almighty federal dollar," Edwards said.
But Souder insisted the measure will not allow proselytizing with tax dollars and noted that charitable choice was included in the welfare bill of 1996 and that both Bush and Vice President Al Gore have endorsed the concept.
"It is hard for me to understand why anybody would oppose this amendment since both parties' leading contenders, since the current president of the United States, since both Houses of Congress, have adopted it," he said. (In fact, the Clinton administration has opposed charitable choice, although Clinton signed the welfare reform act under political pressure from Congress.)
Critics say the remaining two measures -- which would deny attorney's fees to citizens who successfully challenge church-state violations at public schools -- are clearly designed to put a damper on litigation on behalf of students' freedom of conscience. Legal experts are divided on whether Congress has the power to place such curbs on citizens' ability to access the courts.
Speaking against the DeMint proposal, Nadler said bluntly, "This is not right. It is an attempt to bias the courts, to bias the courts financially against people who would sue on the basis of the [separation of church and state] and, frankly, the courts ought to be neutral.... [T]his amendment is obnoxious to the First Amendment and ought to be defeated."
Religious Right groups were quick to celebrate the series of votes, especially the passage of the Ten Commandments measure. In a statement issued through his Christian Coalition, TV preacher Pat Robertson called the House vote "a courageous move toward bringing values back into our public schools after decades of banishment by the courts."
Continued Robertson, "Allowing the Ten Commandments to be posted on a school house wall is a common-sense measure that reaffirms the traditional moral values that our nation was built upon."
But Americans United Executive Director Barry W. Lynn disagreed sharply, calling June 17 a sad day in American history. "This outrageous display is one more sad example of religion being used as a political football by members of Congress who obviously cannot find a real solution to a problem," said Lynn. "Government-enforced religion is never the answer; families need to be responsible for any religious education of their children, not government."
Concluded Lynn, "If these amendments were to ultimately become law, they would be challenged in court immediately. This effort is patently unconstitutional. Congress should spend more time following the Ten Commandments and less time trying to exploit them for political purposes."