July/August 2012 Church & State | Featured


Mike McGhee was elected to the Missouri House of Representatives in 2004, and since then has sponsored or cosponsored some pretty unusual legislative proposals.

In 2009, McGhee signed on to co­sponsor a constitutional amendment that would have required the Missouri secretary of state to verify the birth certificate of every presidential candidate, an obvious sop to fringe “birthers” who insist that President Barack Obama was not born in the United States.

That same year, McGhee cosponsored a bill that would have outlawed the forced implementation of electronic tracking chips under the skin of state residents – even though no one had suggested doing that.

In April of this year, McGhee threw his weight behind a bill that would have banned public schools from discussing “sexual orientation” in just about any context. Critics said the measure would have stifled free speech and endangered students by denying them critical information.

These proposals have received a mixed reception. The birther amendment was withdrawn, but the microchip bill actually passed and is now law. The “don’t say gay” bill is still un­der discussion and has generated much controversy in the Show Me State.

But another McGhee proposal has fared very well indeed. For years, the Odessa Republican championed an amendment to the Missouri Constitution that purports to protect prayer in public places and other religious “rights.”

The measure was repeatedly blocked. But in 2010, an influx of “Tea Party” Republicans swept into the Missouri legislature, and the proposal passed. It will appear on the state ballot in August during the primary election.

Critics at Americans United and other groups say that if the so-called “Right To Pray” Amendment passes, it will spawn confusion in the state and probably a good bit of litigation as well.

The lengthy amendment revises Article I, Section 5 of the Missouri Constitution, a religious liberty provision that is currently 110 words long; it would add a much more verbose statement of 374 words.

The new provision goes into great detail asserting that every citizen 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….”

It guarantees 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….”

It then adds, “[T]he 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….”

The amendment also covers public school students. It states that “students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work….”

In one of its most controversial sections, the amendment says “no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs….”

Finally, the amendment adds, “[T]he state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances….”

Language this sweeping, critics at Americans United say, would open the door to various forms of government-sanctioned prayer as well as give students a constitutional right to refuse to do any homework or assignment that they say offends their religious beliefs. In addition, it attempts to skirt U.S. Supreme Court rulings by encouraging students to impose prayer and proselytizing on others in public schools.

Americans United and other groups are worried that the average voter will not grasp the sweeping nature of the proposed change. This is due in part to the initiative’s ballot summary, which makes the measure sound benign.

It states that the proposal would ensure that the “right of Missouri citizens to express their religious beliefs shall not be infringed” and that “school children have the right to pray and acknowledge God voluntarily in their schools.”

But opponents say the change does much more than this and that voters deserve to know it.

The American Civil Liberties Un­ion of Eastern Missouri argued that this language is deceptive and portrays the change in the most positive light. The language, the group argues, fails to convey the true scope of the amendment.

“The people of Missouri have a right to know exactly what they’re voting for,” said Anthony Rothert, legal director of the ACLU of Eastern Missouri. “The disingenuous way this amendment is described on the ballot is clearly meant to persuade the voters to approve it without knowing what it really says.”

The ACLU filed litigation to block use of the language but lost the first round of the case when Cole County Circuit Judge Pat Joyce held in Co­burn and Bredemeier v. Mayer that the summary fairly describes the amendment’s impact. (The group has filed an appeal.)

William E. Juedemann, president of the St. Louis Americans United Chapter, said he has concerns about the amendment. Juedemann, a former elementary school teacher, believes the measure would subject students to religious displays.

“The amendment could be read to allow teachers to create little shrines at their desks and areas,” Juedemann said. “This is already a problematic thing in the schools where I worked.  Prayer-a-day desk calendars, praying hand paperweights and any number of other little and some not-so-subtle evidences of the teachers’ faith, all in sight of students. I can see this growing to posters, maybe Bibles and other more obvious displays.”

Continued Juedemann, “Students would be able to opt out of assignments and blocks of instruction – read evolution – based on their religious views. How are those to be determined?  When is it truly against their beliefs and when is it to avoid an assignment or work?  How can you prove what a person believes?”

Juedemann concluded, “Missouri already has one of the strongest constitutions in the area of church-state separation and religious free­dom. This will basically undo religious protections.”

As the vote approaches, Religious Right organizations in Missouri and their theological allies are stepping up their support of the amendment. The Missouri Family Policy Council, the state affiliate of Focus on the Family, has announced its support.

The Council, which says it played a leading role in drafting the amendment’s language, asserts that the change is needed because of “continuing efforts by atheist groups to stifle and suppress religious freedom in community life.”

The influential Missouri Baptist Convention has also announced support. The denomination’s Christian Life Commission calls passage of the amendment a top priority for this year.

“We want to pass this with the highest percentage of voters possible,” Kerry Messer, a lobbyist for the Baptist group told The Pathway, the Convention’s newspaper. “We’d rather have 85 percent than 55 percent.” 

Americans United and other opponents of the measure were thrown for a loop in late May when Gov. Jay Nixon announced that the proposal will appear on the August ballot. Most observers thought the amendment would be on the November ballot.

Why did Nixon accelerate the vote? Political analysts in Missouri believe that Nixon, a Democrat, knows the proposed amendment will draw lots of conservative religious voters and he’d rather they turn up for a primary than during a general election, where they might affect other ballot races.

Despite the speeded-up timeline, Americans United will do all it can to educate Show Me State voters about the proposal’s problems.

AU Legal Director Ayesha N. Khan agrees that the amendment will end up spreading confusion and sparking lawsuits.

“This kitchen-sink proposal is grossly misguided,” Khan said. “Half of it accomplishes nothing at all, listing protections that are already well settled under the law. It is well established, for example, that ‘neither the state nor any of its political subdivisions shall establish any official religion’ and that ‘the state shall not coerce any person to participate in any prayer or other religious activity.’

“The balance of the amendment,” Khan asserted, “simply invites mischief from those who champ at the bit to run roughshod over the rights of minority faith groups and nonbelievers.

“To say that cities and counties ‘may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions’ begs the question of the parameters under which those invitations can be extended,” she continued. “There’s a substantial body of law that governs when such prayers are permissible and when they are not.

“This language,” Khan concluded, “will only encourage municipalities to disregard that law and wade into a costly legal minefield. This is a classic example of playing politics with religion – and with the public fisc.”

2012 is shaping up to be a challenging year for state constitutions and religious liberty. Aside from the Missouri vote, Florida residents will vote on removing the strong church-state separations provisions from that state’s constitution. (See “Amendment Anxiety,” February 2012 Church & State.) In North Dakota, voters faced a sweeping “religious freedom” provision that critics said was actually designed to hand religious groups a trump card whenever they come into conflict with the state.

In addition, attempts were made to water down church-state protections in Oklahoma, Alaska, Arizona, Wyo­ming and Mississippi.

Officials at Americans United said these assaults should be taken seriously. With the U.S. Supreme Court becoming lax on the issue of taxpayer aid to sectarian institutions, the religious freedom provisions of state constitutions are an important second line of defense.

Thirty-eight state constitutions have particularly strong language protecting the separation of church and state. Proponents of school vouchers and other types of taxpayer aid to religion know those provisions stand in their way and would like to water down or remove them.

“State constitutions are increasingly in the crosshairs of the Religious Right and the Catholic hierarchy,” said Barry W. Lynn, executive director of Americans United. “I urge all AU members to remain diligent in defense of these important documents.”

Learn more about the dangers of the Missouri “prayer amendment” and educate yourself about it at: http://au.org/MOAmendment2