But nevertheless, within a given politically organized society if you want to make a change from some of those rights within the political framework you can do so, as I see it, if you act through a constitutional process. I think it would be dreadfully unwise but I think you can do it. It is done in the world today. We don't like it, we people who live in a society like ourselves, but it can be done as a matter of political self-determination.

Mr. EDWARDS. Thank you, Dean.

I wonder if you would mind thinking about a very hypothetical case that would have to do with the obvious study that you have done in this field and especially in the lecture at the Harvard Law School Association of New Jersey.

You pointed out there that there were no public schools in the United States in the 18th century, and that the public school system of the United States developed well after the Bill of Rights became the first 10 amendments to the Constitution. From your historical studies, would you think that the Constitution itself could have been ratified had we had public schools in those days with a built-in Becker amendment so that religious services would have been permitted in the public schools?

Dean FORDHAM. I think, sir, that is so speculative that I could not give an answer that I would have much confidence in. We are speculating about a past situation. I wouldn't have any confidence in my capacity to put myself in their shoes with a thing like that before them. That is, our predecessors at that time.

Mr. EDWARDS. Your lecture pointed out that the various States or a number of States would not have ratified the Constitution at all if there had not been some sort of agreement that the Bill of Rights would be added immediately upon the convening of the First Congress.

Dean FORDHAM. Yes. It would help my general position to say that they would not ratify it had this been in it, but I don't want to say that which I am not honestly intellectually confident of. The most I can say is that had they been thinking straight at that time this kind of provision put into the Constitution would have been something I would have expected them to object to.

Mr. EDWARDS. Thank you.

Mr. MEADER. Mr. Chairman, before he leaves, may I ask two more questions.

Dean Fordham, with regard to your interpretation of the word "respecting," making a much broader prohibition than just establishment alone, can you cite any passages in the majority opinions of the Supreme Court, in the two cases, which adopt your interpretation?

Dean FORDHAM. Not offhand, sir. I recall a statement of the Chief Justice in one case expressly saying this. But I just can't recall it offhand. I would have to take a look at the books to call it back to mind. But I know this has been reflected in the thinking of members of the Court in some opinions. I do recall the statement by Chief Justice Warren but I can't recall exactly in what case he said it.

Mr. MEADER. You quote on page 13 of your lecture to the Harvard Law School Association, the passage from Justice Black's opinion. He does not make that fine distinction by relying upon the word "respecting," I quote, "The Establishment Clause*** is violated by

the enactment of laws which establish an official religion whether those laws operate to coerce nonobserving individuals or not." In any event, I have another question.

On page 18 you engage in a discussion of a tax exemption of churches and the exemption from the ad valorem property tax by States and local units of government. I gather, from a rather hasty reading of that passage, that you believe that constitutes unconstitutional action against houses of worship.

Dean FORDHAM. On houses of worship as distinguished from the charitable function of the church.

Mr. MEADER. An orphanage?

Dean FORDHAM. In principle I find it difficult to sustain, that is true. Mr. MEADER. In your opinion, the tax exempt status accorded houses of worship by the States and local units of government is unconstitutional?

Dean FORDHAM. It is the kind of a thing that a person is rather foolish to be dogmatic about. But I have difficulty squaring it with the principles enunciated in these cases. It seems to me in principle that it is inconsistent with the establishment clause; that is, as carried over in the due process clause in the 14th amendment.

Mr. MEADER. Aren't you then adopting pretty much the philosophy of Justice Douglas in regard to the subsidization of any religious exercise or activity?

Dean FORDHAM. Only in part. He uses that as the test all the way through. I would say that it depends on what they are doing and what the purpose is.

As I understand Mr. Justice Douglas, the test itself is whether or not the Government has been acting. There is a question as to what purpose. I can justify the Government paying for chaplains in the Armed Forces for the reasons I have stated. But there is a special reason there that is designed to advance freedom of religion in the armed services.

Where there is just a general exemption from the ad valorem property tax for any kind of church or house of worship in any community, that means anyone who has property and is a taxpayer is supporting this whether he believes in religion or not.

Mr. MEADER. Do you believe that any taxpayer would have a standing to challenge the validity of exemption of houses of worship from property taxation?

Dean FORDHAM. Locally I think he would have standing as a legal

matter.

Mr. MEADER. Do you know of any such suits?

Dean FORDHAM. No, I do not. I am not trying to stir up litigation; certainly not. I think he would have standing. It has a bearing and impact upon him as a taxpayer.

Mr. CAHILL. Has the Supreme Court ever passed on this question? Dean FORDHAM. I am quite certain it has not.

Mr. POFF. Will the gentleman yield to me?

Mr. MEADER. Yes.

Mr. POFF. This question is somewhat related to the one the gentleman from Michigan just propounded. As the witness knows, or maybe he does not, the Congress has passed laws which grant subsidies to religious organizations and other nonprofit organizations for the transport of mail.

Dean FORDHAM. Yes.

Mr. POFF. Would you regard those laws as laws respecting an establishment of religion?

Dean FORDHAM. The transport of mail.

Mr. POFF. The subsidy which is granted to the religious organization which is using the mails.

Dean FORDHAM. I see what you mean. And using it for religious purposes as distinguished from charitable purposes.

Mr. POFF. Yes, sir. Using it to propagate their own faiths.

Dean FORDHAM. It troubles me just like this other matter, like the ad valorem property tax. It troubles me in the same way. There is a question of substantiality of it. But it does trouble me as a case of using a governmental facility and funds to advance religious purposes.

Mr. POFF. That is all.

Mr. FEIGHAN. Mr. Martin.

Mr. MARTIN. Thank you, Mr. Chairman.

Dean is it your understanding that the New York decision does not rest technically on the compulsive nature of an organized prayer with a child not conforming and just staying silent?

Dean FORDHAM. That is right. It did not rest on the compulsive element.

Mr. MARTIN. I have had difficulty through these hearings distinguishing the New York case from the situation of our having prayers and chaplains in the House and Senate. Isn't it true that we have public property involved in both?

Dean FORDHAM. Yes.

Mr. MARTIN. We have, also, in addition to that, the stamp of governmental activity involved in both, do we not?

Dean FORDHAM. Yes.

Mr. MARTIN. In both cases we have actually denominational prayers, wouldn't you say?

Dean FORDHAM. Yes.

Mr. MARTIN. In addition, we have this element of compulsion in the broadest sense, do we not?

Dean FORDHAM. The compulsion there is not of the same sort as you have in schools.

Mr. MARTIN. No, not of the same sort. I am speaking in a broad

sense now.

Dean FORDHAM. In a broad sense it might be embarrassing to walk out on a prayer. But you don't have the authority aspects that the Pittsburgh school superintendent pointed out that existed in the public school.

Mr. MARTIN. Do you have difficulty also with this situation?

Dean FORDHAM. I don't have much with this. I think in actuality, whether one likes to arrive at this conclusion or not, this sort of thing it seems to me, to be more ceremonial than really a substantial religious practice.

Mr. MARTIN. But we do have denominational prayers in the House and Senate.

Dean FORDHAM. Yes.

Mr. MARTIN. I don't see how you can call this more ceremonial than the situation in the New York prayer where actually it was about as nondenominational as you can get.

Dean FORDHAM. Even though it is nondenominational it did involve the concept of the belief in the Deity. It did involve that kind of commitment in very nice language. It involved belief in the Deity and expression of reverence to God. It was in a school framework where it was not only being conducted by the schools but in this case the very formulation of the words was by public authority.

Mr. MARTIN. Certainly we acknowledge a Deity in the House and Senate when we say our prayers over there.

Dean FORDHAM. We do. There might very well be an atheist in the House. I don't know. But the Constitution forbids any religious test for public office holding. There might conceivably be an atheist concerned with the subject.

Mr. LINDSAY. If the gentleman would yield. If he is saying that there are souls that may be saved in the House and Senate, that is impossible.

Mr. MARTIN. With that I yield the balance of my time.

Mr. FEIGHAN. Is there any other member that wishes to pose a question?

If not, thank you very kindly, Dean Fordham, on behalf of the committee. We wish to express our appreciation.

Dean FORDHAM. Thank you.

Mr. FEIGHAN. The next witness will be Thomas W. Braden, president, California State Board of Education, who is a constituent of one of our esteemed and able colleagues, Mr. Corman.

Will you introduce our next witness?

Mr. CORMAN. Mr. Chairman, I cannot claim Mr. Braden as my constituent but we come from the same State and the tremendous and constructive impact which he has had on public education in California for these past several years has been felt in our district. Because our public education in that State has had to grow more rapidly in the past decade and particularly at the point of higher education than has ever challenged society any place before. He has been a remarkable public servant. I take pride in welcoming him as a fellow Californian. I would be honored if he made his home in my district.

Mr. EDWARDS. Mr. Chairman, I would like to say amen to the words of my colleague from California, Mr. Corman, and welcome Mr. Braden to Washington, and say that we in the State of California are very proud of Mr. Braden and the wonderful work he is doing for education in our State.

Mr. MARTIN. Mr. Chairman. So that we Republicans are not left. out, I would like to welcome Mr. Braden before the committee on behalf of the Republican Party.

Mr. FEIGHAN. Mr. Braden, if we had a poll the welcome would be unanimous.

Mr. BRADEN. Thank you, Mr. Chairman.

Mr. FEIGHAN. Mr. Braden, do you appear in your capacity as an individual citizen or do you appear as a representative of any organization or group of citizens?

Mr. BRADEN. I appear as a representative of the State board of education of the State of California, Mr. Chairman, which consists of 10 members.

Mr. FEIGHAN. You may proceed

Mr. BRADEN. Thank you. I hope it is all right to thank the gentlemen who are so kind to me and to remind the Republican member, Mr. Martin, that I come from a district where I am not so sure that his constituency would welcome me.

TESTIMONY OF THOMAS W. BRADEN, PRESIDENT, CALIFORNIA STATE BOARD OF EDUCATION

Mr. BRADEN. My name is Thomas W. Braden. I am a newspaperman and president of the California State Board of Education.

I have come here at the request of the chairman of the committee to state my opinion on the question of an amendment to the constitution of our country which would permit children to pray in our public schools.

I do not find anything in the Constitution which prohibits children from saying prayers in school or out.

If this is so and I think it is so-then what is the question involved in the amendment?

The question is whether government in the United States may force or coerce or embarrass children into prayer.

It has been said that this is not the intent of the proposal. Argument will be made that a child who does not wish to pray may leave the room or turn his back or keep his lips immobile or look for his

eraser.

But what this amendment says is that by law there may be a time for prayer. The moment this amendment is enacted, some religious group in each community in the United States will insist that the time be set, that a prayer be delivered and that teachers or other officials rise before classrooms and say, in effect, "pray."

I think there is a danger here of what Mr. Madison called the tyranny of the community.

I do not believe there is a teacher in the United States capable of conducting a classroom prayer without suggesting that the approved thing, the right and proper thing for children to do at that moment is to pray.

So if you gentlemen approve this amendment you are saying that every child must pray or that if he does not he will be marked among his classmates as odd or queer.

I do not know the effect which this might have upon a child who does not wish to pray, or whose parents have taught him in the words of Jesus, to "enter into thy closet and when thou hast shut the door, pray to thy Father which is in secret."

But there is a second tyranny involved here. It is the tyranny which would be exercised by the community against those who have no objection to praying in public but whose parents and church have taught them to recite a particular prayer.

Whose prayer would be offered in the public schools? Would it not be the prayer which reflected the majority sentiment in each community ?

Will minorities always acquiesce? Might there not be factionalism and community strife?

In California there are more than 200 religious groups possessed of more than 50,000 members. In any given California town, I doubt