If there is any Virginia law that deserves to be called "iconic," it is Section 16 of the Virginia Bill of Rights, which combines the religious freedom provision in Virginia's first Declaration of Rights (1776) with portions of Thomas Jefferson's Statute for Religious Liberty (1785). These two documents also inspired the religion clauses of the First amendment and are world famous.
This article consists of the following sections: Section one presents the content of the proposed amendment and explains the ways in which it is unclear, redundant, and otherwise poorly written. Section two addresses the issue of whether the provisions intended to protect religious expression, including prayer, are necessary and can solve the problems they are intended to solve. It also identifies the crucial challenge in cases involving religious expression - namely, determining correctly whether it is the government or a private individual or group that is expressing or promoting a religious belief or practice. This determination must be made because religious expression or advocacy by the government, but not by private individuals or groups, is prohibited by the First Amendment and Section 16 of the Virginia Bill of Rights. Section three examines whether Senate Joint Resolution 287 represents an attempt to challenge and change the U.S. Supreme Court's interpretation of the religion clauses. It focuses in particular on a provision that seeks to authorize prayers before or during meetings of legislative bodies, such as county boards of supervisors. Section four discusses the necessity for and the constitutionality of one of the provisions in the proposed amendment that is unrelated to religious expression, namely, one that exempts students from having to participate in academic work to which they have religious objections. The fifth and final section concludes that Senate Joint Resolution 287, even if written well, should be rejected because most of its provisions are unnecessary and some are either unconstitutional or will encourage state agencies, officials, or employees to take actions that will be declared unconstitutional by federal or state courts.
Copyright © 2013-2014 Richmond Journal of Law and the Public Interest. This article first appeared in Richmond Journal of Law and the Public Interest 17, no. 1 (Fall 2013-2014): 439-86.
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West, Ellis M. "Religious Freedom Legislation in the 2013 Virginia General Assembly." Richmond Journal of Law and the Public Interest 17, no. 1 (Fall 2013-2014): 439-86.