By Kent Willis, Executive Director
Legislative sleight of hand is nothing new, but sometimes it creates problems for us that require more than a quick eye to figure out.  Such is the case with Delegate Charles W. Carrico’s HJ 593, which would amend the state Constitution to assert that individuals have the right to pray and recognize their religious beliefs on public property, including in public schools, but that the state may not compose prayers for students nor require them to join in prayer or religious activity.
How, you may ask, can the ACLU look askance at such a bill?  Wouldn’t the ACLU protect the right of students and teachers alike to express their own religious beliefs so long as they are not coercing others to participate or accept their beliefs?
Well, there’s more to this bill than meets the eye, and that’s where our problems with it can be found.
HJ 593 prohibits schools form composing or requiring prayer, which is good, and it protects the right of teachers and students to express their own religious beliefs, which is also good.  But there are no words in HJ 593 addressing the large space that sits between these two narrow notions of the free exercise and establishment clauses as they apply to public schools.
For example, HJ 593 would seem to allow a teacher to pray in front of his class, as long as he or she didn’t require students to join him.  Yet we know that such action imposes the teacher’s religious beliefs on students, who are not only expected to remain in the classroom and but also taught to listen to what their teacher says.  And, besides, we know that such prayers are unconstitutional according to the Supreme Court.
How about prayers announced each morning over the school’s public address system?  These prayers would seemingly be permissible under HJ 593, yet they, too, are clearly unconstitutional.
Giving Delegate Carrico the benefit of the doubt here, we could guess that he is attempting to compress sixty years of complex, and sometimes desultory, Supreme Court decisions on school prayer into a couple of easily understood sentences.  While that idea in general is a good one, it’s not so good when it leads to omission or misdirection, as HJ 593 most certainly does.
Another problem we have with this bill is its purpose.  I often caution against trying to read the minds of legislators, but when they speak openly about their bills, intent often emerges.
This past Monday, at a 7:00 a.m. meeting of a subcommittee of the House Privileges and Elections Committee, Delegate Carrico illustrated the need for HJ 593 by referring to a controversy that developed a little more than a year ago in Gate City, when a student used the public address system to pray at a high school football game.
In the Gate City incident, the ACLU of Virginia, citing Supreme Court cases directly on point,  told the principal of the school in question not to do it again, and the school agreed.  It was as simple as that.
Yet, according to his testimony, Delegate Carrico believes that HJ 593, had it been part of the Virginia Constitution, would have protected the school’s right to open football games with prayers over the public address system.
With this pronouncement, we can do better than guess at how Delegate Carrico intends to populate the vacant spaces of HJ 593.   He fully intends for his grand statements about the right of religious expression and separation of church and state to be little more than smoke and mirrors that divert us from the fact that the wall of separation is disappearing before our eyes.
If we ever had our doubts about this bill, they are gone now.  It should be unequivocally opposed, and we’d like your help in doing it.

HJ 593 would amend Article I, Section 16 of the Virginia Constitution, which incorporates Thomas Jefferson’s Statute for Religious Freedom.  The full amendment reads:

To secure further the people's right to acknowledge God according to the dictates of conscience, neither the Commonwealth nor its political subdivisions shall establish any official religion, but the people's right to pray and to recognize 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.

UPDATE: JAN. 28, 2011
HJ593 was passed by the House Privileges and Elections Committee (12-Y, 7-N) on Jan. 28.  Please write your delegate and ask him or her to oppose this amendment to the Virginia Constitution.
UPDATE: Feb. 2, 2011
Take Action: The House of Delegates approved HJ 593 (61-Y, 33-N, 1-A) on Feb. 1.  Please urge members of the Senate Privileges & Elections Committee to oppose HJ 593 (Sample Letter).