ATTORNEY A ERIC JOHNSTON
BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION
HOUSE JUDICIARY COMMITTEE
JUNE 23, 1995
Mr. Chairman, and members of the Committee, I
appreciate your permitting me to speak to you about the
proposed Amendments to the United States Constitution to
clarify religious liberty.
My name is Eric Johnston. I have been in the private
practice of law in Alabama for 25 years. For the past 12
years, I have been actively involved in religious liberty
cases acting as counsel on behalf of individuals and
entities whose religious rights have been diminished or
denied. During most of this time, I have been president of
The Rutherford Institute of Alabama, Inc., an affiliate of
The Rutherford Institute, a religious liberties legal
The First amendment to the United States Constitution
was intended to permit us to freely exercise our religion
without state interference. Numerous court decisions in the
last 50 years have resulted in an interpretation of the
establishment clause that burdens religious freedom under
the free exercise clause. The so called "tension" between
the clause has grown very weak. The widely used "Lemon
test" is often a subjective vehicle for denying free
exercise rights. Section 3 of the proposed amendment
specifically addresses this unbalanced pressure and would
permit some of the tension to return.
Because of the ubiquitous and misunderstood term
"separation of church and state," public officials go out of
their way to deny free exercise rights. They do so out of
fear of being sued and held accountable for damages and
attorney's fees, important considerations in these times of
fiscal concern. This is not right, and it must be
corrected. I speak in support of the proposed amendment.
Section 1 proposes to clarify that prayer and other
religious expression is permitted in public places where
other speech is permitted. This does not seem like a
difficult proposal, but in many cases it is the religious
expression that is excluded while other expressions
continue. For example, a young man in a public high school
in Troy, Alabama often took the opportunity to speak to
classmates concerning his religious beliefs. He often had
his Bible with him. The only time he exercised this right
was after school while waiting to be picked up, but it
occurred on public school property. As a consequence,
school officials took his Bible and prohibited him from
speaking about his faith.
While this young man spoke about his faith, other
students were talking about everything else under the sun.
It was only the religious expression that was prohibited.
Why was this? In providing legal counsel to the young man,
we alter found the school officials believed that such
religious speech was prohibited by the "separation of church
and state," and in actuality, the school counsel relied on
the establishment clause to forbid this right. It would
seem that the resolution of this should be a simple matter.
However, that case was never finally resolved, and there
still remains the spectre that other students in that school
who attempt to exercise their religious rights may face
similar problems and we may yet end up in a Federal District
Section 1 of the proposed amendment not only covers
situations like the one in Troy, but it would clarify the
right of students to engage in student-initiated prayer
before public school sporting events. Although the Attorney
General of the State of Alabama has recently given opinions
that such prayer is permitted under the free exercise
clause, on any given night in the fall there is a serious
question of whether students may voluntarily pray before a
public school football game. These issues have come to us
time and time again. There is much confusion.
"Prayer around the flag-pole" has become an annual
event on the public school campuses around the country.
Every September it is done, or at least attempted, by
thousands of students. The question always exists on
whether it will be permitted. In Alabama, we have had two
substantial cases on this. None have required the actual
filing of a lawsuit, but it has required significant threats
and each year the problem reasserts itself. Such activities
are conducted prior to school, without school participation,
as free exercise of religion by students acting completely
on their own.
Scion 1 does not address only public schools. Consider
the man standing on the public sidewalk outside an abortion
clinic and reading his Bible. Because he did this, he was
arrested. The same rational would apply to Gideons who have
the right to distribute Bibles to students in the public
school, while standing on the public sidewalks around the
Another area of concern is public employment. The
sheriff's deputy, like the employee of the public
university, had put some small religious items at their
personal work stations. Others in their offices were
permitted to put personal items out. However, because their
items were of a religious nature, their supervisors
Neither of those problems were satisfactorily resolved.
The sheriff's deputy's speech was chilled and religious
rights prohibited. Rather than face the prospect of
protracted litigation, she took a lateral transfer. The
public university employee continues to work in her
position, but suffers apparent retaliation and the prospects
of a court proceeding continue to hang threatenly over her.
Section 2 of the proposed amendment clarifies that the
United States or a state may acknowledge its religious
heritage, beliefs or traditions. The state of Alabama is no
stranger to such litigation. Consider the will known case
of Wallace v. Jaffree, concerning the rights of prayer and a
moment of silence in public schools. Neither issue is
Recently, an Alabama State Court Judge was sued by the
ACLU because he permitted sessions of his court to open with
prayer, and the Ten Commandments, along with the Bill of
Rights were hanging on the wall of his courtroom.
Legislatures open with prayer, some buildings show
historical evidence of our religious heritage, and while the
United States Supreme Court has not ruled, many lower court
believe that court prayer and the posting of the Ten
Commandments, a set of laws by which most of us live, are
prohibited. There constructions of the establishment clause
are the epitome of the hypocrisy that the courts have
created when constructing the relationship of the religion
clauses of the First Amendment.
No one seeks to force religion on any one else. No one
is suggesting that any particular religion be required.
Knowing the importance of religious liberty, I certainly do
not want anyone telling me or my children how to pray or
whom to pray. However, we must be free to exercise
religious rights as we choose.
Those who oppose this constitutional amendment suggest
it is unnecessary. The above example show otherwise. Those
same detractors suggest that a federal statute would serve
the purpose. That is only a delaying and complicating
strategy. Only an amendment to the Constitution will return
to our Bill of Rights the tension necessary to preserve
religious freedom in this country.
A. Eric Johnson