Ernest Istook

Mr. ISTOOK

Mr. ISTOOK. Here is the requirement, for this or any other constitutional amendment. The requirement that is set forth, in I think either article 5 or 6 of the Constitution, sets up the way that the Constitution is amended. Now, the way the Supreme Court does it, they issue a ruling which bends or twists or distorts or breaks the Constitution, and then we have to go through this process to correct it. So the way the Founding Fathers intended is, we have to have a vote on a constitutional amendment that is approved by two-thirds of the House and by two-thirds of the Senate and then is ratified by three fourths of the State legislatures. Now, it is important to note that in the process of ratifying it, we do not need a two-thirds vote within a State legislature. We only need a simple majority. But we have to have the simple majority from three- fourths. It is also important to note the President of the United States and the governors of the several States do not have any formal or official role in any constitutional amendment. It is something that is done through the legislative bodies, both in the Congress and in the State legislatures. And the Religious Freedom Amendment specifies a period of 7 years for the States to consider ratification of this.

Mr. ISTOOK. They can go to the Web page and we have that information for them there.

Mr. ISTOOK. That is typical, of course, because most pieces of legislation have far fewer co-sponsors than they do have people who actually vote for them.

Mr. ISTOOK. Correct.

Mr. ISTOOK. Approximately that number; correct.

Mr. ISTOOK. Yes, by 290 votes. By two-thirds of those who vote. If everybody votes, it would be 290.

Mr. ISTOOK. And they probably labeled the gentleman, who is one of the cosponsors, as a right wing religious extremist. Of course, they are wrong on that.

Mr. ISTOOK. We have rules in this Chamber, you are correct. I was going to mention another important one. Free speech does not give someone the ability to incite people to engage in violent acts or to overthrow of the government. Yet, the First Amendment says simply that we have free speech, that Congress shall not abridge free speech. Those things are not considered abridgements. So, too, when you say the people, under the Religious Freedom Amendment, have the right to pray, it does not mean that a child has the ability to interrupt a class whenever they may want to because they say, I can only interrupt regardless of the time or place or circumstance to offer a prayer. You have the same reasonable requirements to keep things orderly that are understood as the courts have clearly held in a multitude of decisions that relate to public schools. So that, I think, is the best answer we can give to the question that the gentleman posed when someone says, well, gee, if I cannot do what I want to do and to do it right now, that my constitutional rights are being infringed upon. I do not think we want to teach our kids that and certainly the Religious Freedom Amendment would not do that.

Mr. ISTOOK. I think that the dissent into that minutia or trivia is not the intent of any constitutional amendment. For example, we have many rights that the U.S. Constitution expresses in absolute terms. Let us take free speech. The Constitution says that we have the right to free speech. It is in the First Amendment. It does not say there are any limits whatsoever on it. But right now, if a student does not like what is going on in social studies, they can not insist, oh, I am going to start talking about math or English or some other topic. You still have requirements for orderly behavior, whether it be free speech or whether it be someone that might be wishing an opportunity to have a prayer at public school. The courts have recognized that there are time, place, and circumstance requirements of reason. By the same token, free speech is not absolute, because obscenity, pornography are not protected by free speech. The right of free speech does not give someone the right to libel or slander someone without bearing legal responsibility for the results of that act.

Mr. ISTOOK. That is not the job or the responsibility of the Congress of the United States or the Supreme Court to decide what should be the scheduling of a public school if a school chooses to make an opportunity during homeroom time or at school assemblies or whatever it may be, depending upon what are the wishes of the people that are involved there. You see, unfortunately some people have gotten so accustomed to a system where people say Washington, D.C. is going to tell us how to do everything, that we have to get all the details and all the instructions and all the fine print out of Washington, D.C. That is contrary to the notion of freedom. It is contrary to the notion of federalism that says the Federal Government is intended to be a government of limited powers. So it is not for us to decide or dictate how a particular school or State may implement different things. It is merely for us to enunciate the standards. That is the purpose of the Constitution.

Mr. ISTOOK. You can have the initiative for prayer that must come, not from government, but from the students, because following that, we have the requirement that it says, ``Government shall not prescribe school prayers.'' That means two things. You do not prescribe or dictate that they must occur. Secondly, you do not prescribe or select the content of those prayers. Is it possible, for example, let us take a case such as the graduation case in Rhode Island, the Lee v. Weisman case, Rabbi Leslie Gutterman was invited to offer the prayer. Should students, on some occasion, invite someone else to join the prayer? Yes. That could be permitted. But the initiative must come from the students, not from government. Let me tell you a personal story that relates to that, because I recall, in 1963, when I was a student in junior high school in Fort Worth, Texas. That day, our whole school had let out briefly to walk down to the highway to see the motorcade where the President of the United States was passing by as he was going to downtown Fort Worth to Carswell Air Force Base and passing our community to do so to get on to Airforce One and make a quick hop over to Dallas where he was shot and killed. That was November 22nd, 1963. I recall, of course, we had just seen the President that morning, the shock as the first, the rumors and then the confirmation spread through the school. You can imagine, of course, as from your own experiences, because we are of the generation where everybody knows where they were the day that John F. Kennedy was assassinated, and I recall on that occasion, despite what the Supreme Court had ruled just the year before, and I cannot tell you to this day who offered it, but the whole school shared in the prayer over the school intercom. If you took the case today and the order that Judge Dement has issued in the State of Alabama, whoever offered that prayer could be put in prison under the judge's order. So we need to recognize that there are extraordinary circumstances, and there are extraordinary deeds, and there are times that we need to reinforce the common bonds, just as these four justices said in their dissent, that we need to reinforce those common bonds.

Mr. ISTOOK. What we have here is a clear requirement, because a teacher, of course, as any person who is part of local government, is considered an agent of State government. That is a binding rule of law. Local government is a subset of State government. So when we say, ``Neither the United States nor any State shall require any person to join in prayer or other religious activity,'' you are saying that no agent of government can dictate to people you have got to pray or we are going to pressure you to participate in some sort of religious activity. That is to avoid just trying to get people to join in the prayer if they may not want to do so, but trying to make sure that you are also not trying to push them into any other type of religious activity. So we have tried to make sure that we cover that as well as other concerns of people with that language.

Mr. ISTOOK. This was 1992. In this particular case, and I would like to read something from the words of the justices who disagreed with what their brethren on the court had done. The four justices who dissented from this were Scalia, Thomas, Rehnquist, and White. Let me read what they said. This goes back to something that the gentleman from Georgia asked before about what happens when we are able to recognize, yes, we have got some differences of opinion among religion, and it is not a threat to anyone. This is what those four justices, Scalia, Rehnquist, White and Thomas wrote in their dissent in Lee v. Weisman, and I quote now their words: ``Nothing, absolutely nothing is so inclined to foster among religious believers of various faiths a toleration, no, an affection for one another than voluntarily joining in prayer together to the God whom they all worship and seek. Needless to say, no one should be compelled to do that. But it is a shame to deprive our public culture of the opportunity and, indeed, the encouragement for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism in order to spare the nonbeliever what seems to be the minimal inconvenience of standing or even sitting in respectful nonparticipation is as senseless in policy as it is unsupportable in law.'' So they were talking about what we were discussing before, that the act of people of different faiths sharing a common respectful experience creates, as they said, not just a toleration, but an affection for one another and an appreciation of what we have in common, because it emphasizes the things which we share, rather than emphasizing the ways in which we differ.

Mr. ISTOOK. Maybe they should have banned an emblem of the IRS itself since that is, as you point out, offensive to many people. But that is such a dangerous trend. But you see, it is not only the IRS. If you read the Supreme Court decision in the case of Lee v. Weisman, that is the graduation prayer case, in it, Justice Kennedy, writing on behalf of the Supreme Court, says, Assuming as we must that the prayer which the rabbi offered at the graduation was offensive, so the Supreme Court said we must assume that a prayer at a public school graduation is an offensive act. Four of the justices disagreed. It was a 5 to 4 decision.

Mr. ISTOOK. Yes. The ones that they categorize as offensive, if it is a religious symbol or if it is sexually suggestive or pornographic. But do you see the connection? Why do they lump a religious item or symbol in the category of things that are offensive to people? That is exactly what they have done. They treat it as something that is suspect or something that is dangerous, which is wrong to do.

Mr. ISTOOK. This was the Internal Revenue Service.

Mr. ISTOOK. Mailing address? Certainly. They can reach me, and the last name is spelled I-S-T-O-O-K, Congressman Istook at 119 Cannon House Office Building, Washington, D.C. 20515. I would like to take a moment to mention a couple of other aspects about the religious freedom amendment because as the gentleman from Georgia knows, this has not been a lightly pursued undertaking. It is only because it has been 36 years now since the Supreme Court rendered its original decision suppressing prayer in so many circumstances in public schools and all the other approaches have basically been tried and exhausted and the route of the constitutional amendment is the only one left to be workable. But we have tried to make sure as we mentioned before, frankly. There is more language here to safeguard against any effort at government control of religion, there is more text in the amendment devoted to those safeguards than there are to express that students should have the right to pray in public schools and that the religious traditions or heritage or beliefs should be something that could be freely expressed. I, like so many other parents with children in public school, have gotten sick of looking at all the times when we go to school, we think it is going to be a special occasion, maybe it is a special school activity or pageant in December. They have the school choir and we say, well, they are going to sing some different holiday songs. We hear ``Here Comes Santa Claus'' and ``Walking in a Winter Wonderland'' and `` Rudolph and ``Frosty the Snowman,'' but we do not hear ``Silent Night'' or ``O Come All Ye Faithful'' or Jewish Chanukkah songs, and it is because of the fear of lawsuits and in some cases actual court decisions that have gone that far. The U.S. Post Office a couple of years ago took down the banners that said Happy Chanukkah or Merry Christmas in the Post Office. They will not let those be displayed anymore. They had to fight with some people to keep issuing the Christmas holiday stamps. Take the Internal Revenue Service. One of its big offices in California issued an edict to all of their workers saying, on your own desk and in your personal work space, you cannot have any type of religious item or symbol. It might have been a Bible. It could have been a Star of David. It could have been a little nativity scene, a picture of Christ. Whatever it was, they said those were taboo. They cannot be there on your own desk. I wrote the IRS, and I have said, why have you done this? They sent back a letter to me. They said items which are considered intrusive, such as religious items or sexually suggestive cartoons or calendars must be prohibited. That was their full description of the restricted items, a religious item or something that is sexually suggestive.

Mr. ISTOOK. Correct. And we have an e-mail set up on the web page for that.

Mr. ISTOOK. Mr. Speaker, I very much appreciate the reference there. The web page that we have established for reference is religiousfreedom.house.gov., and I should caution people, do not put a www in front of it, or they will get a totally different web page. But it is religiousfreedom, all one word, religiousfreedom.house.gov. There, as the gentleman is aware and I appreciate him pointing it out, we have a wealth of information. Detailed legal analysis and going through different Supreme Court decisions and other decisions and citing this. Copies of many of the endorsement letters that we have received. Papers discussing how does this fit in with the notion of separation of church and State. How does it fit in with the claims different people make about well are we a captive audience to this? All of these different questions that are sometimes posed are discussed and answered at that web site. So it is a great resource that people can utilize to get more information. We even have made it easy for people to download and if they want to copy and distribute documents as handouts to other people, it is a very useful place.

Mr. ISTOOK. It certainly does.

Mr. ISTOOK. I do not know the actual number of how many hundreds or thousands of rabbis are in this particular organization. It is a national organization of rabbis. The American Conference of Jews and Blacks, the American Muslim Network, those are some of the non- Christian groups. And of course there are many that are Christian groups, and we would expect that of course because that is the faith of most Americans.

Mr. ISTOOK. I do not have the full list with me, but for example we have an organization of Jewish rabbis which is called Toward Tradition.

Mr. ISTOOK. And those of many other faiths as well.

Mr. ISTOOK. I think this is an interesting question, and I think that the issue is really freedom. Frankly, that it is not our job to make those decisions from Washington, D.C. Those decisions for a local community can be made in a local community, so long as they are not trying to establish or endorse a particular or official religion. So I do not think that the Congress of the United States should even attempt, and I do not think it is our place to try to say court houses in Georgia, in Colorado, in Alabama, in Oklahoma, in California, or any place else for the United States Congress to establish the standards of what can be put on the walls of county court houses or city halls all around the country, nor do I think it is the role of the U.S. Supreme Court. In other words, we have bodies that make those decisions right now. People made the decision what art work is going to hang in the Chamber of this Congress. That decision included the visage of Moses and there are also the images of a couple of popes, as I am sure the gentleman is probably well aware, among people with legislative or legal significance. So when we are asked the question who decides, I think that is going to be basically an issue of who is involved in that community or in that State, if it may be a decision that involves the State facility, and of course then when it becomes a national facility, we have the Ten Commandments depicted in the U.S. Supreme Court Chambers, and that is a decision for the U.S. Supreme Court. What is in the Chambers of Congress is a decision for Congress. We have different Federal agencies, State agencies and local ones. I think what we have to do is get away from this ``big brother'' notion that says that the Supreme Court is the fount of all wisdom and it should describe standards and everyone else has to follow those standards before they can hang something on the wall. The test should not be whether we have hung something on the wall which everyone likes or some people like and others do not like. The test should be did we actually take some action that truly tries to make people follow a faith selected for them as opposed to choosing to put up something that was significant to the religious traditions, heritage or beliefs of that particular community, which obviously will differ in some places around the country. That is called diversity. What we have to do is to get away from this terribly false politically correct notion that we cannot do anything unless everybody agrees. If we are told that if we say or do something which may give offense to another, and the problem may be in their thin skin, not in what we set out to do or to express, but if we are told that only if everybody agrees with something that is the only circumstance when we can utter it, that is a totally false standard. That flies in the face of the concept of freedom. It flies in the face of free religion, it flies in the face of free speech, and yet that is increasingly what we are being told that everyone, everyone must stifle and suppress their religious expression and their religious beliefs and accept muzzling and censorship of it just to make sure that there is not one person sitting there that chooses to take offense. It is about time that we understand that the intolerance frequently is not on the part of someone that is voicing a religious opinion. The intolerance is on the part of the one who wants to shut them up.

Mr. ISTOOK. Certainly.