TESTIMONY OF ATTORNEY A ERIC JOHNSTON BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION HOUSE JU

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TESTIMONY OF 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 organization. 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 Court. 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 school. 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 prohibited it. 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 satisfactory resolved. 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. Testimony from A. Eric Johnson

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