Amendment 2 and its effect on Missourians' free exercise of religion.

• Author: Martinez, Mishelle

1. INTRODUCTION

   Applicable to the states through the Fourteenth Amendment, (1) the First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (2) The three most important clauses of the First Amendment are the Establishment Clause, the Free Exercise Clause, and the Freedom of Speech Clause. (3) Over the past several decades, the Supreme Court of the United States has balanced free speech and expression against the separation of church and state, making determinations as to which set of principles should govern within the context of religious expression in public schools and on public property. (4) Over time, the Court developed tests to examine the constitutionality of a challenged religious practice (when conducted by the government) or a government policy regarding that practice. (5) The Supreme Court has maintained neutrality toward religion as a guiding principle for the government to follow in order to avoid Establishment Clause problems. (6) In some instances, local governments have misinterpreted this "neutrality principle in a manner that prevented individuals from exercising their constitutional right to religious speech and expression. (7)

   In response, various state legislatures have sought to restore religion in their communities. (8) Such an effort was recently made with Missouri's Amendment 2, most commonly known as the "Right to Pray" Amendment. (9) The amendment, intended to clarify the constitutional rights of Missouri citizens to freely express their religious beliefs, has sparked controversy since it was enacted in August 2012. (10) Opponents argue that Amendment 2 fails to protect any constitutional right not already protected by the United States or Missouri Constitutions. (11) They maintain that Amendment 2 will only result in taxpayer-funded lawsuits. (12) By contrast, supporters of Amendment 2 urge that it is a necessary clarification of rights granted by the First Amendment and by Supreme Court of the United States decisions that have remained unclear to Missouri citizens. (13)

   This Comment provides a thorough analysis of Amendment 2. The primary issue addressed is whether Amendment 2 will have an impact on Missourians' religious freedoms or whether Amendment 2 merely reaffirms rights already granted under the old article I, section 5 of the Missouri Constitution. If Amendment 2 does add new rights, an analysis of whether such rights are in accord with the First Amendment is required. Part II outlines the legislative history, text, and general commentary on the key provisions of Amendment 2. In Part III, all new provisions under Amendment 2 are analyzed in light of the legal framework created by the Supreme Court of the United States regarding religious expression and the Establishment Clause. Future implications of Amendment 2 are also discussed.

   Part IV concludes that the substantial majority of Amendment 2 reaffirms Missouri citizens' previously-protected constitutional rights. Although both federal and state constitutions have protected Missourians' "Right to Pray," Amendment 2 is an effort to make those religious liberties well known and understood. The Supreme Court's interpretation of the First Amendment as it pertains to religious liberties has caused confusion, which Amendment 2 seeks to remedy. To the extent that Amendment 2 expands those rights granted by the United States Constitution, this Comment maintains that the new rights do not run afoul of the Establishment Clause. Still, detailed guidelines, either from the courts or the legislature, would aid government officials wishing to act in accordance with the new law.

2. AMENDMENT 2

   This Part begins by summarizing the legislative history of Amendment 2. It continues with a brief overview of the "Right to Pray" Amendment. Then, the praise and criticism Amendment 2 has received will be discussed. A brief synopsis of an action brought against Amendment 2 even before it passed will also be provided.

   1. The Legislative History of Amendment 2

      The legislation that led to Amendment 2 began over ten years ago. In 2000, State Representative Rich Chrismer sponsored HB 1269, proposing a law that would allow public schools to designate "prayer time" for students. (14) The following year, Representative Charles Ballard introduced HCR 27, asking the State to recognize a "National Day of Prayer and requesting all public schools to set time aside to give students an opportunity to pray. (15) In 2002, five bills focusing on the freedom of religious expression in public places were introduced. (16) Three of the bills proposed that Congress adopt a federal constitutional amendment protecting student prayer in public schools, and the other two sought to have Missouri expand its constitutional protections to allow voluntary student prayer in public schools. (17)

      In 2003, Representative Brian Nieves introduced HCR 13, advocating for the various proposed amendments pending before Congress that would allow student prayer in public schools. (18) By 2004, because Congress had not acted on the various proposals, leaders within the Missouri Legislature decided to focus solely on amendments to the state's constitution. (19) Representative Carl Bearden, along with nineteen other House members, submitted HJR 48 as a proposal to incorporate elements of a student's right to pray in public schools, as well as all citizens' liberties regarding prayer and religious expression on public property, into the State Constitution. (20) Two years later, Representative David Sater sponsored HCR 13, urging that student prayer in public schools and religious displays on public property did not violate the Establishment Clause. (21) Representative Carl Bearden also introduced HJR 39, which would have required all funded public schools to "display the text of the First Amendment of the Constitution of the United States in a conspicuous and legible manner." (22) This idea was added to the usual request for citizens liberties regarding voluntary prayer in public property and in public schools. (23)

      Until 2007, proposals to protect citizens' and students' religious expressions had been passed annually by the House of Representatives but had been stalled in the Senate through the use of filibusters. (24) Once again in 2007, Representative Carl Bearden introduced HJR 19, which was co-sponsored by twenty-nine other members of the House. (25) Representative Mike McGhee took the lead as sponsor in 2008. (26) This difference in leadership led to major changes in the proposal. (27) By the time HJR 55 was introduced in 2008, the bill required schools to display the entire Bill of Rights, rather than the First Amendment alone. (28)

      Several organizations worked to support these bills, (29) but none proved to be as instrumental to Amendment 2 as The Missouri Family Policy Council (MFPC). (30) MFPC's insight led to the expansion of HJR 11 in 2009 to include constitutional protections for government employees and legislative prayer practices. (31) In 2010, MFPC also encouraged adding to the bill "that students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work, that no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs." (32) Representative McGhee's HJR 62 included those proposals, as well as a provision addressing prisoners' religious rights. (33)

      In March 2011, Representative McGhee sponsored HJR 2. (34) Senator Jack Goodman introduced HJR 2 in the Senate. (35) In March of 2011, HJR 2 passed in the House 126 to 30. (36) By a unanimous vote, HJR 2 passed in the Senate on May 10, 2011. (37) After twelve years of legislation, it was up to Missouri's citizens to vote on Amendment 2 in August 2012. (38)

   2. Amendment 2 Generally

      Article I of the Missouri Constitution is Missouri's Bill of Rights. (39) On August 7, 2012, citizens of Missouri voted to repeal article 1, section 5 of the Missouri Constitution and adopt Amendment 2. (40) This measure restated the already existing language of section 5 and added new terminology (italicized):

      That all men and women have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his or her religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his or her person or estate; that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed; 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; that citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the General Assembly and the governing bodies of political subdivisions may extend to...