IN THE UTAH STATE LEGISLATURE, 1994 SESSION HJR-17, PROPOSED CONSTITUTIONAL AMENDMENT +quo
IN THE UTAH STATE LEGISLATURE, 1994 SESSION
HJR-17, PROPOSED CONSTITUTIONAL AMENDMENT
"NON-SECTARIAN STUDY OF RELIGION"
"The study of the influence of religion, the comparative study of
religions, or the theistic, agnostic, and atheistic assumptions relevant to
the educational curriculum, including cultural heritage, political theory,
moral theory, scientific thought, or societal values, does not constitute
either religious instruction or a sectarian practice forbidden by the Utah
HJR-17, the NonSectarian Study of Religion.
Speech by Chris Allen on 2/17/94 to
Women's State Legislative Council
Basically this amendment says that the study of religion should not be
prohibited by the Utah Constitution. The ostensible reason for this
amendment is that the Utah Constitution says no public money or property may
be used for religious worship, exercise or instruction. The word "instruc-
tion" might mean they can't study religion. Now of course what the
constitution is really saying is that the public schools can't be used for
religious indoctrination, but this amendment chooses to play dumb and make
the worst-case interpretation.
There are two reasons why this concern is a fraud. First, the federal
constitution absolutely takes precedence over the state constitution and it
protects the right to study religion in school. In fact the U.S. Supreme
Court ruled explicitly over 30 years ago in the school prayer cases that
religion could and should be studied in school as long as it's not taught as
Second, the Utah Supreme Court in its December ruling in the City
Council Prayer case (SOS v. Whitehead) made it crystal clear that it will not
entertain any such extreme interpretations. In that case the Court actually
set a radical precedent by ignoring the plain language of the constitution so
it could allow government to use prayer in its meetings.
So legally, there is no need for this amendment. If there is no need
for it, why was it filed? The real reason is so that a handful of people can
score some points in a deeper ideological struggle against Separation of
State and Church. Their real goal is to weaken Separation of State and
Church so that the public schools can be used for religious indoctrination.
Separation of State and Church
What is Separation of State and Church? For one thing, it's a civil
right, the first right in the Bill of Rights. It's the right to have
government stay out of your personal religious beliefs. This does not mean
you can't teach about religion, (in fact you have to to fully educate
students). It does mean you can not use the schools to teach kids to believe
religious doctrine. This distinction is the crucial difference.
What is the issue concerning Separation of State and Church? Unfortu-
nately there is strong opposition to Separation of State and Church from
evangelical fundamentalists, who want to use government to promote their
beliefs. There's always been opposition, although in Jefferson's and
Madison's time it was the evangelicals who wanted separation because the
established churches were imposing on them. Even though it is a civil right,
Separation has always been controversial. This is particularly so in Utah
where Mormon fundamentalists want to use the Mormon majority to impose their
will on everyone else.
Evangelicals make a moral argument out of it, saying that government
(and the public schools) need to use religion to promote public morality.
The moral argument vilifies Separation of State and Church, and makes a
religious crusade out of efforts to undermine it. As with every crusade,
political opportunists come forward to lead it, seeking the glory and spoils
that come from being perceived as religious heros. These crusaders call
themselves Accommodationists. Accommodationists seek intrusions of religion
into government, which they call government accommodation of religion, as
legal precedents to weaken separation of state and church. They distort
history, claiming that the Founding Fathers never intended to separate
religion from government, that they only wanted to outlaw an established
church. I brought with me today the principal writings of Jefferson and
Madison so you can see for yourself what they meant.
In 1980 the Salt Lake City Council started opening their meetings with
prayer in response to a Mormon Church statement endorsing government prayer.
We sued to stop the practice, and in 1992 a district court judge ruled that
opening prayers were unconstitutional under the Utah constitution where it
prohibits public funding of religious worship, exercise or instruction.
This case, as appealed to the Utah Supreme Court, was based on an
argument that if the Utah constitution was strictly interpreted, the public
could not pray in a government meeting or on government property. This is
not true. It was a phony, straw man argument, just a legal ploy. The First
Amendment protects the right of the public to pray anywhere. The Society of
Separationists never opposed the right of the public to pray, and we made
that perfectly clear. Our only concern was the ceremonial use of prayer to
open meetings, which is what the Council specifically went to court to get.
We did not oppose voluntary prayer given by the public in addressing the
Unfortunately the people who wanted government prayer latched on to this
myth to validate their cause, and used it to rally support. Unfortunately
the Utah Supreme Court accepted this argument and used it to legalize
government prayer in spite of what the Utah Constitution says. Now this
amendment, HJR-17, continues the same game that worked before. It is also
designed to capitalize on a false straw-man argument, i.e. that the constitu-
tion has to be changed to protect the study of religion.
To see the real agenda behind this amendment, all you have to do is look
at the people behind it. Attorney Matthew Hilton is the author of this
amendment, and his agenda is no secret. He is the state coordinator for the
Rutherford Institute, a right-wing, evangelical Christian organization
dedicated to destroying Separation of State and Church. His definition of
religious freedom consists only of freedom of religious expression, and
conveniently neglects the right to separation of state and church.
In his dissertation at BYU, he argued that the U.S. Supreme Court had
gone astray by leaving its "traditional religious moorings," and shifting
from "theistic or `higher law' assumptions to agnostic or secular assump-
tions." His stated objective is to "start laying the foundation legally and
educationally" to teach the "religious internalization of values." His goal
is "allowing the teaching of cultural heritage and political heritage that
presuppose a spiritual realm, and that rise and emanate from a creator." My
reading of this is that his agenda is to destroy the safety net that keeps
schools from being used for religious indoctrination.
Byron Harward and Lyle Hillyard
Rep. Byron Harward is the sponsor of this amendment. Byron Harward and
Sen. Lyle Hillyard just spent two years crusading to pass an amendment to the
Utah Constitution that would throw out the language providing Separation of
State and Church in Utah. For two years they were the heros leading the
charge, but last December the Utah Supreme Court robbed them of their final
victory and glory.
BYU Law Professor Cole Durham has provided academic legal expertise to
support this amendment. Durham is a radical and aggressive accommodationist.
He is the author of the constitutional amendment that Harward and Hillyard
were trying to get throughout the Legislature. That amendment not only
eliminated the separation provisions from the constitution, but replaced them
with language allowing every accommodationist precedent that had been won in
Now, with HJR-17, Harward, Hillyard, and Durham are back in action.
It's a meaningless amendment, but it gets them back into the crusade.
Hilton's Statute -- Protections Missing
Last year Matthew Hilton wrote an amendment to statute 53A-13-101 which
concerns restrictions on education. The purpose of the bill, as with HJR-17
now, was to allow the study of religion in the public schools.
Before it was passed by the Legislature and signed into law, the change
was worked over by the Religious Liberty Committee, and several provisions
were added to protect Separation of State and Church. Teachers could not
proselytize or endorse religious doctrines. Religious worship could not be
Amendment HJR-17, we're told, is necessary to protect the provisions of
this statute, but HJR-17, which goes into the Utah Constitution, contains
none of these state/church separation protections developed by the Religious
Liberty Committee. Why aren't these protections going into the Constitution?
Cole Durham says we don't need them because the First Amendment and the
Religious Liberty section of the Utah Constitution protect us. Of course, by
the same reasoning, we don't need HJR-17 either.
One more thing you should know about this education statute is that it
is mainly about moral instruction. Section 1 paragraph 4 lists secular moral
qualities that the schools are allowed to teach. Section 1 paragraph 5
prohibits the teaching of "political, atheistic, sectarian, religious, or
Given Hilton's avowed interest in using religion to teach morality, we
have every right to be suspicious of his intentions with this amendment.
Bear in mind that this issue, using religion to teach morality, is precisely
the issue that Thomas Jefferson and James Madison were fighting in Virginia
when they invented Separation of State and Church. This is not a tangential
issue. It is the key issue that the First Amendment was founded to address.
(Handout at meeting)
February 13, 1994
This is an actual handwriting exercise in FIRST GRADE curriculum at
Wasatch Elementary School as assigned last December:
J is for Jesus
Son of God on earth.
On Christmas we celebrate
The day of his birth!
H is for Hanukkah
The festival of lights
When oil for one
Lasted eight days and nights.
1. This is (select one):
a) The study of the influence of religion
b) The comparative study of religions
c) The academic study of theistic assumptions on cultural heritage
d) Religious indoctrination
2. Lessons like this should be (select one):
a) Encouraged by the Utah Constitution
b) Protected by the Utah Constitution
c) Allowed by the Utah Constitution
d) Prohibited by the Utah Constitution
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
RELIGIOUS EDUCATION TEST
Answer to question 1: _____
Answer to question 2: _____
FOR IMMEDIATE RELEASE
February 19, 1994
NEWS CONTACTS: Chris Allen: 649-7926
Richard Andrews: 539-0356
Brian Barnard, Atty: 328-9531, 328-9532
HOUSE EDUCATION COMMITTEE APPROVES
AMENDMENT FOR STUDY OF RELIGION
Yesterday the Education Committee of the Utah House of Representatives
unanimously approved a proposed constitutional amendment promoting the
"nonsectarian" study of religion in the public schools and reported it out to
the floor for consideration by the entire House. At the Committee hearing
the Society of Separationists spoke against the resolution, designated as
HJR-17. The Society's statement is included with this release.
On Thursday, the day before the Committee met, the amendment was the
topic of a panel discussion at the State Office Building sponsored by the
Women's State Legislative Council. Speakers on the panel were Senator Lyle
Hillyard, Carol Lear, an attorney from the Department of Education, Lily
Eskelsen, president of the Utah Education Association, and Chris Allen,
representing the Society of Separationists.
Eskelsen said an attorney had advised her that the bill was not legally
necessary and that the UEA would neither oppose nor support the amendment.
She voiced fear that the amendment would send the wrong message to teachers,
encouraging them to promote religious views. Lear admitted that the bill was
not legally necessary, citing the 1963 Supreme Court decision on school
prayer in which the Court stated that the objective study of religion in the
public schools was allowed. She claimed ,however, that the amendment was
needed anyway because teachers were afraid of being sued, and it would serve
to discourage costly, frivolous law suits like the graduation prayer cases.
Allen responded to Lear charging that Education officials are responsible for
the cost because they spend the taxpayers' money on religious crusades
instead of on education.
"The Society of Separationists is not opposed to the legitimate
objective study of religion in the public schools," said Allen, "but the
people pushing this amendment have another agenda. Their real objective is
to use the schools for religious indoctrination." "The backers of this
amendment are political opportunists seeking to capitalize on an appeal to
religious bigotry," said Richard Andrews, another representative of the
February 18, 1994
Comments to Utah House Education Committee
Re HJR-17, "Nonsectarian Study of Religion"
I'm Chris Allen, Utah Representative of the Society of Separationists,
a national, nonprofit educational organization. I'm also a member of the
former so-called "Religious Liberties Committee." I submitted materials
yesterday to the chairman of this committee for all of you, and I hope you've
had time to look them over.
This constitutional amendment is not legally necessary. The U.S.
Supreme Court ruled in 1963 in Murray v. Curlett that the study of religion
in the public schools, "when presented objectively as part of a secular
program of education," is protected by the First Amendment and even encour-
aged. [83 S.Ct. 1560 p. 1573 (1963)] That settles it. The U.S. Constitution
takes precedence over any possible contrary interpretation of state
constitutions. There is no legal issue here. There are no legal doubts that
Therefore the claim that the Utah Constitution might restrict the
neutral study of religion, because it states, "No public money ..." shall be
used for "... any religious ... instruction, ..." is a fraud. It is a straw-
man argument, set up as an excuse for a fairly obvious second agenda.
The real reason for this amendment is to attack Separation of State and
Church, and encourage religious indoctrination in the schools. Those
supporting it are political opportunists trying to capitalize on an appeal to
This amendment contains none of the safeguards originally approved by
the Religious Liberties Committee in last year's statute, restrictions to
prevent proselytizing and the endorsing of religious doctrine. The original
author of this amendment is Matthew Hilton, an attorney from the BYU law
school. He is also the author of that statute, and was at the time the state
coordinator for the Rutherford Institute, a radical religious-right
organization that chips away at Separation of State and Church.
As originally presented to the Religious Liberties Committee, the
statute was supposed to be for the purely objective study of religion with no
indoctrination, but in an article to the Utah County Journal [3/26/93], one
of the items I sent to you yesterday, Hilton boasted of a very different
agenda. He frankly admits that his real purpose is to lay the legal
foundation for teaching religious values in the schools, and to teach that
our heritage "presuppose[s] a spiritual realm," and a "creator." That is
religious indoctrination. This is the real ideology behind this crusade and
the source of the glory and spoils sought by the crusaders.
The loophole in this amendment is the word "nonsectarian." It implies
that nonsectarian religious indoctrination is OK. That's the only rational-
ization I can see that might explain Hilton's otherwise disingenuous
presentation of this amendment.
The problem with this amendment is that, even though it will make no
difference in the law, it will send a message to the teachers that they are
now more free to indoctrinate their students with religious beliefs. For
several years the Utah Department of Education has been conducting a program
to promote "teaching about religion." The program is supposed to be objec-
tive and neutral, but frequently drifts into using religion to teach
As a result most Utah teachers already feel very free to teach religion,
and some are teaching religious doctrine as fact. The first grade handwrit-
ing exercise I distributed to you yesterday is an example of this curriculum.
This amendment, if approved, will stimulate more of this kind of lesson.
If you really want to do something to reduce the risk of lawsuits, you
need a very different amendment. You need one that prohibits religious
indoctrination in schools whether or not it is sectarian. You need an
amendment that says the schools may not use religion to teach morality, and
may not teach that our heritage presupposes a spiritual realm or Creator.
HJR-17, being legally unnecessary, will have the effect of further
weakening the already flimsy safety net that's supposed to protect our
children from religious indoctrination in school. As written it encourages
teachers to teach religious doctrine as fact, and it's actually a dare. If
you approve this, you will be getting in our face and challenging us to sue
This amendment is ill-conceived and ill-advised, and I urge you not to
pass it out favorably. Thank you.
February 26, 1994
"House Bill on Religion Could Sail Right Through"
Chris Allen, Utah representative for
Society of Separationists and American Atheists
and member of the Religious Liberties Committee
as printed in The Salt Lake Tribune on 3/1/94
Given that the constitution is the bedrock of our government, it ought to
be tough to change it and changes should be carefully considered. All too
often though, ill-advised amendments fly through the State Legislature in the
final hours of the session with little or no debate. Such is the case with
HJR-17, the so-called "Nondenominational Study of Religion Amendment," which
will sail swiftly through both houses in three days.
This happens when concern for good government is overshadowed by an
opportunity to reap political gain by patronizing the conservative religious
majority. As is often the case with such crusades, this amendment is based on
false premises. It is a purely symbolic act, a waste of time and money.
The target of this amendment is the Religious Liberties section of the
Utah Constitution, a favorite whipping boy, where it says, "No public money or
property shall be appropriated for or applied to any religious worship,
exercise or instruction." Proponents claim that the word "instruction" might
be construed to prohibit the mention of religious context in history or the
comparative study of religion. They argue that "clarification" is necessary
to prevent lawsuits.
The sponsors of this amendment just spent two years working on another
amendment to delete this part of the constitution claiming it was necessary to
legalize government prayer. Last December the Utah Supreme Court stole their
thunder by ruling that government prayer was OK as long as the public's money
was spent "indirectly," whatever that means. The legislators were forced to
give up that amendment, and this new one is their hope for salvaging some
glory for themselves.
The religious instruction rationale is a fraud. In 1963 the U.S. Supreme
Court ruled in Murray v. Curlett [83 S.Ct. 1560 p. 1573 (1963)] that the study
of religion in the public schools, "when presented objectively as part of a
secular program of education," is protected by the First Amendment and even
That settles it. The U.S. Constitution takes precedence over any
possible contrary interpretation of state constitutions. There is no legal
issue. [*] No clarification is required. Any such lawsuit would be quickly
thrown out of court, especially after the Utah Supreme Court's December
ruling. This amendment is not legally necessary. (The Murray v. Curlett
case incidently was the first filed by the founders of the Society of Separa-
tionists and was our first victory.)
Proponents of this amendment argue that it is necessary to protect the
statute passed last year that provides for the supposedly objective study of
religion in school. It's not necessary, as I've just shown, but here's where
a second agenda emerges. The author of that statute, and this amendment, is
Matthew Hilton, an attorney from the BYU law school, and former state coordi-
nator for the Rutherford Institute, a radical religious-right organization
that chips away at Separation of State and Church.
When Governor Leavitt signed Hilton's statute into law last Summer,
Hilton and his law partner, Doug Clark, boasted in the Utah County Journal
that their real purpose was to lay the legal foundation for teaching religious
values in the schools, and to teach that our heritage "presuppose[s] a
spiritual realm," and a "creator." This is very different from what he told
the Religious Liberties Committee two years ago to gain their approval of the
Here then is the ideological issue beneath the amendment, the unspoken,
but not-so-hidden, agenda. Certainly many Utahn's would support Hilton's
goals. These are the people the legislators are seeking to please, and they
probably represent the majority opinion. Others would consider Hilton's goals
to be religious indoctrination and would be uncomfortable with government
taking on this role.
The problem with this amendment, even though it would make no real change
in the law, is that it will send a message to the teachers that they are now
more free to indoctrinate their students with religious beliefs. The word
"nonsectarian" implies that it's OK to teach religious doctrine as fact, as
long as there is a perceived consensus among dominant religions.
As a result HJR-17 will have the effect of further weakening the already
flimsy First Amendment safety net that's supposed to protect our children from
religious indoctrination in school. It may actually end up stimulating law
suits rather than preventing them.
* Carol Lear, attorney for the Utah Department of Education, admitted this is
true, and cited this case as the reason, when she was addressing the Womens'
State Legislative Committee concerning HJR-17 on Thursday the 17th. Lear said
she still thought the amendment was a good idea, because she thought it would
send a message discouraging costly lawsuits. She mentioned the graduation
prayer cases as examples of the kind of lawsuits she thought should be
ADDENDUM: HJR-17 was passed by the House 66 to 3 on 2/28/94 and by the Senate
24 to 0 on 3/2/94. It will be on the ballot as a "Proposition" in November.
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