This article first appeared in the St. Louis Beacon, July 27, 2012 - The First Amendment to the U.S. Constitution guarantees freedom of religion, among other things. The Missouri constitution does so as well, saying that "no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship."
Now on Aug. 7, primary voters will have to decide on Constitutional Amendment 2, commonly called the prayer amendment.
Supporters say the amendment protects those who wish to pray in public and private. They point to incidents in Missouri and elsewhere where prayer was challenged as a reason to add nearly 400 words to the state’s constitution.
Critics say the amendment is at best redundant, a ploy to attract conservative Republican voters to the polls. At worst, they say, it could constrict the religious rights of prisoners and cause havoc in the classroom.
Nearly all sides agree though that without well-funded or well-organized opposition, the amendment is likely to pass. It’s been endorsed by a number of religious organizations as well as state legislators from both parties. (It has been opposed by newspapers such as the St. Louis Post-Dispatch and the Kansas City Star.)
Still, the amendment’s overall impact may not be known immediately.
“It will cause interesting litigation,” said Tony Rothert, the legal director for the American Civil Liberties Union of Eastern Missouri. “That’s something certainly that we’ll see as a result of this. … But it’s going to be government entities that are going to be sued, so it’s all going to be at taxpayer expense.”
Proponents embrace specificity
The amendment, which the Missouri legislature put on the ballot in 2011, adds several clauses to an existing section of the Missouri Constitution already guaranteeing the right to religious worship.
Like the First Amendment and the Missouri Constitution, Amendment No. 2 bars the state or any political subdivision from establishing an official religion. It affirms that citizens have a right to pray in private or public settings, on government premises, on public property, and in all public schools.
Specifically, the amendment states that “the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly.”
Joe Ortwerth, the executive director of the Missouri Family Policy Council, said in a telephone interview that the amendment “provides clarity to people in leadership positions,” such as schools or local governments. All of the provisions “are consistent with what the prevailing federal case law has been as far as the First Amendment goes,” added Ortwerth
Ortwerth added the amendment protects religious activities that already take place within the public sphere. That includes, for instance, the captain of the football team leading a prayer in a locker room or “Gather Around the Flagpole” events that take place across the country.
“This does not change the state of affairs with how prayer can happen,” said Ortwerth, whose group played a major role in crafting the amendment. “The federal courts have made it clear that teachers cannot lead students in organized prayer. This doesn’t change that. The courts have made clear that you cannot have prayer before a football game over the public address system.”
Another example Ortwerth pointed to was an incident in Arizona where a preacher was arrested for holding a Bible study group inside a home, mainly because of a zoning dispute. Because of this amendment, he said, such a dispute could be avoided in Missouri.
"The constitutional right that a person would have to do that would not be nullified by some city or county zoning ordinance that says they can’t have a bible study in their home without a permit,” he said.
The amendment also states “that the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies.”
It's common practice for a religious official to lead a prayer before business of the Missouri House or Senate goes forward. But prayer before government proceedings hasn't always been well-received. In Franklin County, for instance, the ACLU filed a lawsuit over prayers before before county commission meetings.
While he doesn’t expect that litigation to be successful, Ortwerth said the provision would become moot if a federal court provides an adverse ruling. That’s because, he said, a state constitutional amendment and its language can’t supersede federal law or the federal interpretation of the First Amendment.
Unintended consequences?
Critics of the amendment fall into two camps. A few Democratic legislators, for instance, argued in 2011 that the amendment doesn’t do anything significant, since both the state and federal constitutions already guarantee the free exercise of religion.
For instance, state Rep. Mike Colona, D-St. Louis, told a southwest Missouri news station last year that the amendment “doesn't give us one iota of additional protection, it simply restates status quo.” He also contended that the measure may have been aimed at rallying the Republican base, which includes many socially conservative voters. And Sen. Jolie Justus, D-Kansas City, told the Post-Dispatch last year that the amendment was so meaningless that it was a waste of energy to try and block it.
Because Gov. Jay Nixon scheduled the amendment to be voted upon in the August primary, its electoral impact may not be as influential as expected.
But other opponents – such as the Missouri branch of the ACLU – argue that the amendment does more than make a political statement.
Rothert said one particularly troubling element is a provision that “no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs.”
“The law as it is now is that schools control the curriculum and that critical thinking is an important tool to learn,” said Rothert, who later added that it could allow a student to opt out of learning about evolution. “Even if you have a religious disagreement about something you learn in a school, you still learn it. You don’t have to accept it, you don’t have to change your religious beliefs, but it’s part of the education system. And that’s how you get adults who know how to reason.”
Since the section of the amendment isn’t specifically tailored to public schools, Rothert said it could prove to be problematic at private institutions. For instance, he said it was possible a Jewish student enrolled at a Catholic school could hypothetically object to much of the institution’s curriculum and be protected.
“Without this amendment, there’s no question that a public schools have a right to control curriculum [and] there’s certainly no question that a private parochial school would have the right to control its own curriculum,” Rothert added.
While the above scenario is possible, Ortwerth said that private schools don’t have an obligation to accept a student or continue providing education to someone. He also said precedent is in place to allow students to opt out of assignments based on religious beliefs.
“The courts have ruled pretty consistently over the years that parents can’t dictate the curriculum of a school,” said Ortwerth, adding that school districts and school boards have final determination about what’s included into a syllabus. “On the other hand, the courts have made clear that parents ultimately have the right to guide the education of their children. And so what this language does is to give parents of students the ability to opt out, to excuse themselves from components or elements of an educational program that violate their religious beliefs.
“That does not mean that school has to change its curriculum or that the school has to give a student a passing grade, though I think that most schools have typically in these kinds of circumstances given students alternative assignments,” he added. “That’s the balancing act that exists here.”
DeeAnn Aull, the Missouri National Education Association's assistant executive director for government relations, communications and educational services, said her agency's board opposes the amendment.
"A 'no' vote on this doesn't change any of the rights related to constitutional prayer or the other things they've mentioned. Those things exist and will continue to exist," Aull said. "However, the [provision] on opting out could impact students opting out of what we think are important curriculum units. Not because they need to agree or disagree with a theory, but because the science behind the theory and how a theory is built and disproven ... is important for students to know."
Todd Fuller, director of communications for the Missouri State Teacher Association, said his organization's members haven't expressed widespread concern yet about the amendment. “If abuse happens of this particular rule, then it’s going to be an isolated case or incident,” he said. “And the district is going to deal with that situation on a case-by-case basis.”
Rothert also said a clause in the amendment stating that the constitution shouldn’t be construed to “expand the rights of prisoners in state or local custody beyond those afforded by the laws of the United States” could scale back the religious rights of incarcerated individuals.
Ortwerth said that section "does not take away any rights that prisoners currently have,” but rather just says that the amendment "can’t be construed to expand those rights.”
High hopes
The ACLU was involved in a lawsuit arguing the ballot summary statement was insufficient because it didn't mention the amendment's provisions on education or prisoners. Those efforts faltered in Cole County Circuit Court and the Western District Court of Appeals.
Lisa White Hardwick, a judge on the Western District Court of Appeals, wrote in a unanimous decision that "while there may be specific aspects of the ballot measure that plaintiffs would like to see included in the summary statement, their exclusion does not render the summary statement insufficient or unfair."
Given that time is running out for legal challenges, the amendment is likely to succeed.
Historically, ballot items without organized campaigns almost always pass. And Missouri voters have typically approved socially conservative ballot measures, such as a 2004 constitutional amendment banning gay marriage.
In addition to Ortwerth’s group, the Associated Press reported that Catholic bishops had endorsed the amendment. And earlier this week, dozens of state lawmakers endorsed it. That includes House Majority Leader Tim Jones, a Eureka Republican who will likely become the next speaker of the Missouri House.
"Amendment 2 will reinforce and spell out clearly in our state Constitution the scope of our religious freedoms, and our right to speak our religious values in the public square," Jones said in a statement. "The Missouri Prayer Amendment helps ensure that the supreme law of our state accommodates and protects our religious freedom, which is a bedrock upon which our nation was created.”
Lt. Gov. Peter Kinder, a Republican seeking re-election, told Republicans at a gathering in Crestwood that Amendment 2 "is a necessary push-back by the people."
"The Judeo-Christian world view of morality that suffused everything in our culture when I was growing up has been eroded," Kinder said. "It is eroding in no small part because it is under relentless assault from elites in the media and the academy and universities..."
State Rep. Susan Allen, R-Town and Country, told a Republican women's group earlier this week that Amendment 2 is "a Christian-based initiative" and won't provide religious rights "for Muslims."
Whether Rothert’s earlier contention that the amendment’s passage will stoke litigation down the line, Ortwerth said, remains to be seen.
“If this thing passes, will there be legal challenges to it by the ACLU? I guess there’s the potential for that,” Ortwerth said. “But I think it’s more likely that there would be challenges as it would prove to be applied over time.”
Beacon political reporter Jo Mannies contributed to this article.
