You can’t keep a good theophobe down.
Designed to protect schoolchildren and public officials from nuisance lawsuits by the ACLU and other enforcers of official atheism, the amendment requires public schools to display the Bill of Rights “in a conspicuous and legible manner,” and allows prayer in schools and public prayers offered by lawmakers. This makes ACLU lawyers break out in hives.
Missouri voters approved the right-to-pray measure by 83 percent to 17 percent on Aug. 7, 2012, so the ACLU, naturally, filed suit the next day. It’s probable that the ACLU hates the whole thing, but the argument their lawyers chose is that the law violates the religious rights of prison inmates.
Among other things, the amendment states, “The provisions of the resolution cannot be construed to expand the rights of prisoners in state or local custody beyond those guaranteed by federal law.” In other words, prisoners cannot claim any “extra” constitutional protections that Missouri citizens don’t already have.
To the ACLU, the prisoner reference in the amendment means that “all prisoners will lose the additional protection of religious liberty that they had been afforded since 1820, when the Missouri Constitution was originally adopted.”
However, prisoners were never given “additional” protection. The language of the pre-amended Article 1, Section 5 simply says that Missouri citizens “have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences” and “that no human authority can control or interfere with the rights of conscience.”
The amendment restates this and elaborates on prayer and public expression of religious beliefs. The prisoner reference was inserted to discourage more lawsuits over things like hair grooming, which prompted an unsuccessful challenge to Missouri prison policies in 1993.
“Think of the U.S. Constitution, which provides basic religious rights, as a cake, and the Missouri Constitution, which provided additional religious liberties, as the icing,” said Tony Rothert, legal director for the ACLU of Eastern Missouri. “The newly passed Amendment 2 will strip the icing off that cake for prisoners, and doing so perpetuates the stereotype that prisoners are inferior .”
U.S. District Judge Howard F. Sachs didn’t buy this half-baked logic, dismissing the case in February.
“No practical change in the law can be supposed, and plaintiffs fail to suggest hypothetical situations where the results would be altered by the new amendment,” he wrote, adding that the claim lacked “a plausible claim of actual prejudice.”
This echoes an earlier ruling by the Missouri Western District Court of Appeals, in which Chief Judge Lisa White Hardwick wrote that the proposed amendment would “not repeal prisoners’ state constitutional rights to religious freedom.”
When the Missouri legislature in August 2012 approved another, unrelated religious freedom measure, the House of Worship Protection Act, the ACLU’s Mr. Rothert compared Show-Me-State legislators to Mr. Putin, whose government convicted members of a punk rock band for “religious hooliganism.”