Section 16. Free exercise of religion; no establishment of religion.
"No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.
To secure further the people's right to acknowledge their faith according to the dictates of conscience, neither the Commonwealth nor its political subdivisions shall establish any official religion, but the people's right to exercise their religious beliefs, heritage, and traditions on public property, including public schools, shall not be infringed; however, the Commonwealth and its political subdivisions, including public school divisions, shall not compose school prayers, nor require any person to join in prayer or other religious activity.
And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination."
Delegate Janis has informed me that he intends to support the amendment to the Virginia Declaration of Rights. There is absolutely no evidence that anyone's "exercise of religious beliefs" has been "infringed." Delegate Janis, however, said the following in a recent e-mail to me:
"From my seat on the floor of the House of Delegates directly beneath a marble plaque dedicated to the Virginia Statute for Religious Freedom, I watch warily as many of my colleagues the very successors of Jefferson, Madison, Henry and Monroe enact statutes, regulations and laws that daily encroach on the free exercise clause, ostensibly in the very name of our shared heritage of religious liberty. They want a Commonwealth free from religion."
In reply, I pointed out to Delegate Janis that he had not specified a single actual event of his colleagues "encroach[ing] on the free exercise clause," yet he had nothing further to say in that regard. His irresponsible accusations without proof are dangerously inclined to provoke misunderstanding among the people about what is actually going on, a misunderstanding intended, in my opinion, to procure the approval of a totally unnecessary constitutional amendment. It is simply untrue that individuals are being repressed in the personal expression of their religious faith, and of all places, Virginia has done the most to ensure such freedoms.
We lawyers are used to examining the "fine print" of documents to see what is really being said in them. Consider the language of the proposed amendment:
"But the people's right to exercise their religious beliefs, heritage, and traditions on public property, including public schools, shall not be infringed."
As I wrote Delegate Janis:
"What does it mean 'right to exercise ... shall not be infringed'? You and I both know these words are not innocent words of art. They are precise words designed to enlarge something that someone thinks is too restricted."
If, in fact, such "infringements" are happening, then writing more words won't help. There is no such "infringement" of an individual's "exercise" of religious belief anywhere in the United States, unless we are talking about someone monopolizing public (tax-supported) property for particular religious purposes. But if we allow such public religious monopolies, we are no longer dealing with an individual's religious expression but instead trying to get the stamp of state approval on a certain religion and a certain exclusive religious viewpoint on state "turf." That is what is prohibited by both Virginia law and U.S. constitutional law, and Delegate Janis and his fellows are trying to change that. They see the "free exercise" clause of the First Amendment as allowing the "oppressed" majority to freely impose its beliefs on others at taxpayer expense.
Religious people are free under current law to use bumper stickers, signs in front yards and vacant lots, billboards, tent revivals, radio and TV ads whatever is desired to promote their specific beliefs. What they cannot legally do is use public property for such purposes. Why it is so important to anyone that public property (courtrooms, schools, town halls) and employees (teachers) be exclusively co-opted for such purposes? All the various factions and beliefs cannot possibly be accommodated.
The proposed amendment is unnecessary unless we are trying to convert the United States and the commonwealth of Virginia into a Christian fundamentalist theocracy. Then this amendment is the camel's nose under the tent.
More than 200 years ago, Thomas Jefferson anticipated that someone one day would try to change the delicate balance of religious liberty crafted in Virginia. He was no stranger to religious extremism even then. In his Statute For Religious Freedom he said:
"To declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind; and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right."
All patriotic and devout Virginians should reject the amendment's intrusive, dishonest foolishness for what it is. S
H. Watkins Ellerson is a lawyer in Hadensville. He is a proud member of the ACLU.
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