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century, when it was done to the Mormon Church in blatant violation of constitutional principles. When that happened in California, it was the California Legislature, not the courts, that responded by enacting limits upon such shameless pretensions to power. I think we have grown too accustomed to the fallacy that only courts may be relied upon to safeguard constitutional liberties. It is the mission of legislatures as well to be concerned about these matters and, for this reason, to the extent that the U.S. Supreme Court remains inactive while the Internal Revenue Service or the Department of Justice or State officials invade the sacred precincts of religion or prop themselves up with religion's supporting symbols, I believe it is Congress that should consider measures for redress.
It is especially appropriate that such measures should concern the religion clauses. For, unique among the protections of the Bill of Rights, the protections of the religion clauses of the First Amendment create not simply rights for individuals and minorities against the State; they create, in addition, a structural principle of disengagement between two spheres of life.
When that principle is violated, it is not only the rights of identifiable victims that are savaged; at risk is a form of society to which, for better or for worse, the Constitution commits us all.
It therefore seems especially fitting that, whatever role courts might play in the elaboration and enforcement of rights against Government, Congress should play a special role in preserving a structure of government that makes the very idea of rights have meaning.
In our society, I believe that such a structure requires the vigilant separation of the ecclesiastical and civil realms-not the expulsion of God from life, but the separation of the realms of God and of Caesar.
I believe that this subcommittee is to be commended for initiating what may be the first serious inquiry at this level in a very long time into the state of that separation in America today, and I trust that the subcommittee will keep in mind the broad considerations that I have tried to outline as it listens to the witnesses who follow.
Thank you very much, Mr. Chairman.
PREPARED STATEMENT OF LAURENCE H. TRIBE
I am honored by this subcommittee's invitation that I appear to express my views on the federal constitutional underpinnings of religious liberty in America -- and on what I perceive to be an escalating disregard by government for religious freedom and for the separation of church and state without which such freedom, and the open society such freedom sustains, cannot long endure.
Although I am the Tyler Professor of Constitutional Law at Harvard Law School, and have served as counsel in several major church-state controversies in the state and federal courts, sometimes representing and sometimes opposing churches and church leaders, I appear today on behalf of no individual, group, or institution, but solely in my capacity as a student of constitutional law and as a scholar in that field.
My prepared statement will be brief. I welcome the
opportunity to shed what light I can on the Subcommittee's concerns by answering as fully as time permits whatever questions members of the Subcommittee or its staff may have.
While generalizations about such large matters are always treacherous, I believe that the ultimate aims of the First Amendment's religion clauses are to facilitate spiritual volition by showing no government favoritism toward, or animosity against, any religious group or view, but instead letting "each flourish according to the zeal of its adherents and the appeal of its dogma," Zorach ke Clauson, 343 0.s. 306, 313 (1952); to assure that spiritual institutions not be armed with the governmental powers of svord or purse, and that government not be wrapped in the mantle of
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infallibility that comes fra identification with the divine -- a mantle that makes it possible for government to denounce its critics as enemies of the Almighty, and to guarantee such governmental accomodation to the uniquely powerful spiritual claims of religion upon the religious as may be reconciled with these basic objectives. The injunction that one render under Caesar the things that are Caesar's and unto God the things that are God's presupposes a society in which God's earthly messengers may not borrow Caesar's secular powers -- and in which Caesar's Roman Empire is never permitted to become the Holy Roman Empire.
Thus, the Supreme Court has authoritatively summarized the "purposes of the First Amendment guarantees relating to religion" as "twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other Bighteenth Century systems." Larkin ve Grendel's Den, 103 s.ct. 505, 510 (1982). Striking down a statute delegating commercial veto power to churches and thus "enmeshling) churches in the processes of government," id. at 512, the Court in Grendel's Den recalled that, "lalt the time of the Revolution, Americans feared not only a denial of religious freedom, but the danger of political oppression through a union of civil and ecclesiastical control," id. at 512 n.10. Whenever civil authority seeks simultaneously to don the sanctifying cloak of religious ceremony and to wield the supreme authority to tailor religious destiny, both the denial of religious freedom and the danger of political oppression are realized.
That denial and that danger confront us increasingly today. In disputes over matters as diverse as the teaching of children and the taxation of income, government institutions at all levels are arrogating to themselves the power to define new boundaries between
the secular and the acred - to mallow the life of the spirit within the bowels of the bureaucracy, and to surround the secular halls of the state with the sacred garb of the church.
It is hardly faithful to the vision of the Framers for courts to hold that legislatures may initiate their proceedings with official prayers pronounced by publicly funded chaplains -- but that children may not initiate voluntary prayers on public premises even after school hours. It is hardly consonant with what the framers envisioned for the post sacred symbols of Christianity to be placed, at public expense, in a city's central square -- while neutral programs of financial aid to all private schools, religious as well as secular, are struck down because they encourage political activism by religious groups. Nor is it faithful to the Constitution's plan for jurors in criminal cases to be licensed to substitute their lay allocation of church property or authority for that of a church, or for officials in a state's educational bureaucracy to be licensed to super impose their ideological criteria of what children should learn upon the religious criteria of families and churches.
Both in decisions that some members of this Subcommittee may applaud and in decisions that some may deplore, this Nation has departed dramatically from the relationship between church and state contemplated by the Constitution. To the extent that the state and federal judiciary tolerate or indeed engineer such departures, it is not only to those institutions that we must appeal but also to state legislative assemblies and to Congress itself.
When the courts of California were permitted by the United States Supreme Court to remain inactive when then Attorney General George Deukmejian laposed a receiver ship on an entire church, it was the California Legislature that responded by enacting limits upon such shameless pretensions to power. Just so, to the extent that the Onited States Supreme Court remains inactive while the Internal Revenue Service, or the Department of Justice, or state officials, invade the sacred precincts of religion or prop themselves up with religion's supporting symbols, it is Congress that should consider measures for redress.
To be sure, violations of the first Amendment ordinarily
appear in cases involving unpopular minorities -- groups and individuals unlikely to attract sufficient political support to make Congressional action feasible. But, unique among the protections of the Bill of Rights, those of the Religion Clauses create not simply rights for individuals and minorities against the state but a structural norm of disengagement between two spheres of life. When that norm is violated, it is not simply the rights of identifiable victims that are savaged; at risk is a form of society to which, for better or worse, the Constitution commits us all and from which, one may hope, we all stand to gain.
It thus seems fitting that, whatever role courts might play in the elaboration of rights against government, Congress should play a special role in preserving a structure of government that makes the very idea of rights meaningful. In our society, such a structure requires the vigilant separation of the ecclesiastical and civil realms. I believe that this Subcommitee is to be commended for initiating a serious inquiry into the state of that separation in America today.