New Year: old problems.

Religious Right, Political Allies Gear Up For All-Out Assault On Church-State Separation And Public Schools In Congress, State Legislatures

A year ago, supporters of churchstate separation held their collective breath as they examined the potential damage to be done by the 105th Congress and state legislatures nationwide.

Religious Right activists were ready to seize the opportunity of working with congressional leaders and state officials sympathetic to their perspective. A specific and detailed agenda, including controversial measures such as religious school vouchers, "charitable choice" legislation and a dangerous new constitutional amendment, was in place and ready to go.

Speaker of the House Newt Gingrich (R-Ga.) appeared ready to embrace the game plan of the Religious Right, which took credit for his political ascension. In speeches Gingrich suggested that America should be "submissive to God's will." The stage was set for an all-out assault on the First Amendment's separation of religion and government.

One year later, the results from 1997 are mixed, but the prospects for 1998 loom ominously ahead.

"In 1997 there was a legislative onslaught," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "Fortunately, most of worst bills fell short, ran out of time or were voted down. But before anyone starts celebrating, they should realize that Religious Right leaders will try to finish in 1998 what they started last year."

With those thoughts in mind, here are some issues to look out for when Congress and many state legislatures get under way this month:

Religious School Vouchers

In 1997, the effort to pass legislation allowing tax dollars to go to pay private religious school tuition reached a new high (or low, depending on one's perspective).

Legislative action on vouchers was focused on several bills. The first was S.1, titled the "Safe and Affordable Schools Act of 1997," which authorized a five-year demonstration program that gave "certificates" (a euphemism for vouchers) to parents whose children attend an "unsafe" public school.

Introduced by Sen. Paul Coverdell (R-Ga.), and joined by 25 co-sponsors, the bill was part of a general hearing on vouchers held in the Senate Labor Committee on July 29. However, the legislation received no further action in Congress, and it is unclear whether it will be taken up again in 1998.

Another voucher bill, H.R. 2746, was introduced Oct. 24 by Rep. Frank Riggs (R-Calif.). The legislation, titled "Helping Empower Low-Income Parents (HELP) Scholarships," would have allowed states to use federal tax dollars for voucher plans. However, on the first-ever vote on a freestanding national voucher bill, Congress defeated the HELP bill in convincing fashion on a 228-191 vote Nov. 4 after several hours of fervent debate.

But the vote on HELP scholarships does not necessarily mean voucher bills to come will suffer a similar fate. The HELP bill received a death blow when the U.S. Catholic Conference, the lobbying arm of the Roman Catholic bishops, refused to support it. The USCC apparently thought the measure would jeopardize federal funds Catholic schools already receive. The Catholic hierarchy's opposition led several normally pro-voucher members of Congress to vote against the bill.

Legislation to create a voucher system in the District of Columbia also received a great deal of attention in 1997, with both the House and Senate considering bills.

This is just the latest episode in a long-running battle. Unsuccessful attempts in the 104th Congress to pass vouchers delayed D.C. appropriations for six months. Undeterred, voucher proponents in Congress waged another crusade last year.

In the Senate, Sen. Dan Coats (R-Ind.) was joined by five co-sponsors in introducing a D.C. voucher bill, S. 847, on June 4. The same day, House Majority Leader Dick Armey (R-Texas) introduced a similar bill in the House, H.R. 1797.

The House was first to act, voting to approve an appropriations package that included vouchers, but passing the bill by the slimmest of margins, 203-202.

Proponents were less successful in the Senate. Coats sponsored the addition of vouchers to D.C. appropriations, but Sen. Edward Kennedy (D-Mass.) stopped action on the bill with a filibuster that congressional voucher supporters were unable to lift.

Defiant, Coats refused to allow the appropriations bill to go forward in the Senate without vouchers. Ultimately, a deal was struck that allowed the appropriations measure to advance without vouchers on the condition that a separate D.C. voucher bill, S. 1502, would be passed by the Senate.

With the compromise, appropriations for D.C. were signed into law without vouchers.

The separate voucher bill was then supposed to be taken up by the House, voted on, and given to President Bill Clinton for consideration before Congress recessed for the year. But that never happened. Still reeling from the recent defeat on the HELP bill, religious school aid advocates in the House leadership were afraid to have two major voucher failures so close together. Instead, they chose to simply wait until this year.

As Congress reconvenes this month for the second half of the 105th Congress, this issue will be near the top of their agenda, especially in the House where D.C. vouchers are considered unfinished business.

Some experts are predicting that the House will pass the voucher bill for the District. But Clinton, who has been highly critical of vouchers, is expected to veto the legislation if it makes it to his desk.

If the measure fails, look for additional attempts to yet again pass some kind of voucher legislation this year. Senate Majority Leader Trent Lott (R-Miss.) told The Washington Times in November the top Republican education priority "is to secure parental rights and consumer choice in schooling."

Observed AU's Lynn, "It has become far too common for those with an anti-public education agenda to ask Americans to pay for private religious education. Where vouchers have been passed, they have been struck down in court for a simple reason: It is unconstitutional to take public tax dollars and use them to prop up religious schools. While I can't say I'm surprised, it certainly troubles me a great deal that Congress will continue its crusade for vouchers in 1998."

Voucher supporters, however, are counting on a clever new ploy. Political consultant Frank Luntz, probably best known for his polling work on behalf of the GOP's Contract with America, is giving advice on how to talk about the issue.

In a book distributed to Republican members of Congress, Luntz recommended that members avoid use of the word "voucher," because his data suggests that the American people are generally opposed to vouchers. Instead, Luntz advised members to refer to "opportunity scholarships" and to discuss "parental choice" instead of "school choice."

In response, Sandra Feldman, president of the American Federation of Teachers, wrote in a Nov. 4 column, "Let's speak truthfully. Vouchers do not mean reform - no matter what name you give them. What they do mean is a radical abandonment of public schools and public education."

Tax Breaks For Tuition At Religious Schools

Congressional observers are also expecting action in 1998 on tax-free savings accounts for educational expenses, including the cost of tuition at religious and other private schools. Critics believe the legislation, sponsored in the Senate by Coverdell, is designed to be a foot in the door for more direct forms of religious school funding.

Church school advocates admit the similarities. Jerry Falwell, former leader of the Moral Majority, referred to the Coverdell tax credit legislation as a "voucher-like proposal" in an endorsement in his Falwell Fax newsletter Nov. 21.

Though the Coverdell bill (S. 1133) faces a Democratic-led filibuster in the Senate, the legislation has momentum and may go to a floor vote.

The Istook Amendment

Last May, Rep. Ernest Istook (R-Okla.) sponsored what he titled the "Religious Freedom Amendment" (H.J. Res. 78). Although he says the measure would guarantee religious liberties, critics say the amendment would effectively remove church-state separation from the Constitution, allowing coercive school prayer, requiring public funding of religious institutions and encouraging government to ceremonially "acknowledge" religion. It was introduced in the House and received the backing of 148 co-sponsors.

On Oct. 28, after many hours of hearings and debate, the Constitution Subcommittee of the House Judiciary Committee passed the amendment on an 8-4 vote. It now moves on to the full Judiciary Committee, where it is expected to be taken up for consideration soon.

Rep. Henry Hyde (R-Ill.), who sponsored a "religious freedom" constitutional amendment of his own two years ago, chairs that committee and has spoken out favorably on the Istook plan, voting for it at the subcommittee level.

It is unclear if supporters can gather a two-thirds majority needed to pass the amendment in the House. Nonetheless, it appears to be on a fast track. Sources in Washington told Church & State that Rep. Charles Canady (R-Fla.), who chairs the House Constitution Subcommittee, recently sent a letter to Hyde asking that the Istook proposal be considered early this year. He wants a mark-up in the full Judiciary Committee, with a floor vote as early as February.

Interestingly, the time line for the amendment appears to be following the path set for it by supporters in the Religious Right. They wanted a floor vote delayed until 1998 for political reasons. Christian Coalition leaders have already stated publicly that a House vote on the Istook Amendment will be highlighted on their voter guides in the 1998 election season. The point of the delay was to move the vote to the same year as the election, keeping the issue fresh in the minds of voters as they go to the polls.

More blatantly, Christian Coalition Chairman Pat Robertson was recorded in September at hi s "Road to Victory" Conference telling his supporters to conduct a "major push" in 1998 to get the amendment passed. The Atlanta CC conference featured Istook as a guest speaker, giving him the opportunity to tell the Coalition faithful about his proposal.

"Charitable Choice" Aid For Churches

In 1996, as part of the Welfare Reform Act, states were required by Congress to include religious social service providers among the groups eligible to receive public funds. The practice, known as "charitable choice" and sponsored by Sen. John Ashcroft (R-Mo.), has been criticized as a violation of church-state separation. The plan would allow "pervasively sectarian" religious groups to receive tax dollars while proselytizing.

Ashcroft spent 1997 attempting to include his proposal in every public health and social service bill that moved through Congress. All indications are that the Missouri senator will continue this crusade, especially as he tries to raise his visibility before a rumored run for the White House in 2000.

Legislative experts have heard that Ashcroft will introduce a bill as early as February that would apply the charitable choice provisions to all federal social service block grants to the states.

"Charitable choice allows houses of worship to evangelize while operating publicly funded programs," said Julie Segal, Americans United legislative counsel. "This is an extremely serious church-state problem."

In early spring, experts anticipate a vote in the Senate on S. 10, another charitable choice bill, this one sponsored by Sen. Orrin Hatch (R-Utah). The legislation is intended to apply the religious provider provisions to federal spending on juvenile justice.

American Community Renewal Act

Last March, several members of Congress introduced the "American Community Renewal Act," a bill that offers both a religious school voucher program and an expanded version of the charitable choice legislation pushed by Ashcroft.

In the House, H.R. 1031 was sponsored by Reps. J.C. Watts (R-Okla.), James Talent (R-Mo.) and Floyd Flake (D-NY), while Sens. Spencer Abraham (R-Mich.) and Joseph Lieberman (D-Conn.) introduced S. 432 in the Senate. (Flake has since resigned from the House.)

The House Small Business Committee held hearings on the Watts-Talent bill the same day it was introduced, but it received no further action. Speaker Gingrich, however, has already stated publicly that the legislation will get more attention this spring. Hearings are expected soon. Similar action could occur in the Senate before summer.

Just before leaving for its winter recess, a new bill titled the "Effective Substance Abuse Treatment Act" (S. 1466) was introduced by Sens. Abraham, Coats, and Tim Hutchinson (R-Ark.). At its core, the bill is similar to the Watts-Talent legislation, asking religious group to provide substance abuse and mental health treatment with public funding. Congressional action is expected on the legislation this year.

Religious Freedom Restoration Act 

Observers are also expecting congressional action on a legislative remedy in reaction to the Supreme Court's ruling in Boerne v. Flores. That 1997 decision struck down the Religious Freedom Restoration Act (RFRA), legislation designed to restore religious liberty rights placed in jeopardy by the 1990 high court ruling in Employment Division v. Smith.

Many of the same people and organizations involved in the creation of the original RFRA, including Americans United, are meeting in an attempt to construct a consensus bill that will pass constitutional muster. Completion of this language is expected by spring.

State Legislative Action

In 1997, 27 states considered some form of religious school voucher legislation, and 21 states considered bills regarding religion in public schools. Every indication is that, just like their federal counterparts in Washington, state legislators will be quite active with church-state legislation in 1998.

"Anything can happen in an election year," said Reese Aaron Isbell, state legislative coordinator for Americans United. "But the forecast isn't all bad. Since this is an election year, the legislative sessions will be short in most states. A half dozen states do not convene a regular session in 1998 at all. But people should be very alert and let us know if they learn of a bad bill."

While issues such as "parental rights" and "American Heritage" religion-in-history proposals will be debated and considered by some states, 1998 is likely to focus more heavily on two larger issues regarding church-state separation: school vouchers and RFRA.

Observers expect at least a dozen states to consider voucher legislation in 1998. Action is likely in California, Colorado, Florida, Illinois, Maryland, Michigan, New Jersey, New Mexico, New York, Ohio, Pennsylvania and Virginia.

In addition, five states are expected to take up other forms of religious school financing, such as tuition tax credits and subsidies for textbooks and student transportation.

The other issue earning serious attention in church-state circles is legal protection for free exercise of religion. Because the Supreme Court struck down the federal RFRA, many legislatures are working on their own legislation to protect free exercise in their states.

Concluded Americans United Executive Director Barry W. Lynn, "1998 will be a difficult year for church-state separationists, but I am confident we can prevail if we educate Americans about the issues."