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Senator HATCH. Thank you, Mr. Tribe.
Senator HATCH. Mr. Ball, we will turn to you at this time.

Mr. BALL. Thank you.

Mr. Chairman, Senator Leahy, ladies and gentlemen, I appreciate the opportunity of coming before you this morning to provide some observations with respect to the state of religious liberty in our country at the present hour. I have conducted constitutional litigation in the courts of 22 States of our country and have appeared in upwards of 20 cases in the Supreme Court of the United States involving religious issues on behalf of many different religious groups. There is a great deal of religious liberty litigation in the courts at the present time. Some of these cases ought never to have gotten to court. Some are baseless.

But, many indeed are meritorious.

As we note these cases in the media, we need to keep our perceptions finely tuned. Not every religious claimant who says “God told me to" is worthy of belief. But similarly, neither is every Government agent who proceeds against religious bodies in this country.

Today in my effort to afford you an updating on the state of religious freedom in the country, I feel I should direct your attention not to a series of specific cases but to two points on which I have the liveliest sense of concern for the well-being of our freedom. By and large, discussion of these areas will not in a direct and tangible way point to any specific legislation which the Congress might see fit to adopt. But I feel that the discussion may be vital to guiding the congressional mind as it grapples with matters which touch upon religious liberty.

The two points can be described as: First, overkill in the name of the public interest; and, two, penurious recognition of the realm of the sacred.

To understand both points, and these points I think work together, we need to recall that the framers of the first amendment did not feel that religion was well enough protected by providing it all the other first amendment freedoms: speech, assembly, the press.

No, they put a special fourth freedom into the amendment: freedom of religion. The first amendment protects religion because it is religion. It treats religion differently because religion is different. But neither religious liberty nor governmental authority is absolute. Where Government and religion come into conflict, how do the courts resolve that conflict? The Supreme Court has laid down a few very useful guidelines to answer that question. It has said that the person who claims violation of his religious liberty must prove two things:

One, that the religious practice is based on sincere belief and it is essential to his religion.

Second, that the Government activity in question will be injurious to that practice.

The Government however, likewise, must prove two things: One, that the harm is justified by something called a compelling State interest, not just a public interest.

Second, the Government must prove that there does not exist some alternative means of realizing that interest without doing them harm.

The Supreme Court has also held that while Government can obviously have some relationship to religion, it may not regulate, exercise surveillance over, or attempt to control religious ministeries. This kind of Government involvement with religion is what the Court has called “excessive entanglement.

Now, to address my two points very briefly.

A number of lower court decisions lately have sanctioned governmental overkill in religious liberty cases by ignoring the requirement that Government may restrict religious liberty not in the name of a public interest but solely in the name of a compelling governmental interest-that is a supreme interest, a supreme societal interest. And those same courts have also ignored the requirement that Government is to be put upon its proof that such a supreme interest exists.

In the Wisconsin v. Yoder case to which Senator Hatch referred, a case in which I argued on behalf of the Amish parents some years ago, the Supreme Court said that it was not enough for Government to say that its coercion of Amish children was justified by such an interest. The Court said that it would searchingly examine the governmental claim to see whether the Government had actually put evidence into the record which would prove the interest it claimed.

In the distressing recent case in Nebraska, which has resulted in so many jailings and confiscations, that proof was never, never adduced.

I join in the revulsion which Senator Hatch has expressed over the continuance of these incredible harassments of Christian pastors in that State.

Another aspect of this danger of overkill in the name of public interest is seen in the unfortunate rationale adopted by the Supreme Court itself in Bob Jones University v. United States. There, the Court held that the tax-exempt status of a religious institution must be destroyed on the ground that the institution declined, on proved sincere religious grounds, to observe what the Court called Federal public policy. That term is nowhere found in the Constitution and nowhere defined by the Congress. Irrespective of one's opinion concerning the Bob Jones theology and its ban on interracial dating, the principle on which the Court based its decision is extremely dangerous. There are many things called Federal public policy and thus there are many new pretexts for intervention of Government to suppress religious liberty.

Closely related is my other point: Narrowness in recognizing the realm of the sacred. It is not infrequently happening that legislative bodies, not deeply acquainted with the meaning of religious liberty and anxious to get on with the business of adopting useful social legislation, include religious organisms within the sweep of regulatory language along with businesses, industries, secular organizations or other secular enterprises or they at least leave in doubt, and thus leave to the public and to religious bodies, the costs and burdens of subequent litigation. I will not now discuss a major example of this which pends in the Senate at the present hour.

history of our Naery through abords that that we

Finally, adequate judicial review is greatly needed in religious liberty cases. I am perplexed that when so many credible and major religious bodies asked the Supreme Court to review, simply to review, Dr. Moon's case, that review was denied.

These religious bodies deem the case momentous in terms of their freedoms, irrespective of whether Dr. Moon was correct or incorrect in his challenge to governmental action. It seems to me quite unfortunate that the case was not heard.

A narrowly penurious attitude toward religion in the occasional statements of governmental leaders is seen in statements that religiows leaders ought not to be heard to speak out on controversial issues, especially if they are what is called the "single issue.” The history of our Nation cries out to the contrary. Great issues in our history from slavery through abortion have called for religious witness and the Constitution demands that that witness be allowed the fullest scope. We must not be afraid of religious controversy; we must be afraid of the suppression of religious controversy.

I do congratulate the committee once again on its having called for these hearings. I am grateful that it is now proceeding to explore in more detail some of the real problems which are being faced in our country today concerning religious freedom.

Thank you, Mr. Chairman.
Senator HATCH. Thank you. [Applause.]
Thank you so much, both of you gentlemen.

I have a number of questions I would like to submit to you. I think they are important questions in order to make this record. But in the interest of time, I think I will submit them to you in writing. I do have some other questions when we call you back.

[The following was subsequently received for the record:]


Is it, in your opinion, feasible to achieve complete separation between church and state; and even if it is feasible, is it desirable?

Total separation is not possible, since our churches exist in a society which, for the good of all of its citizens, has organized a government. And our government lives in a society in which churches abound. Inevitably government and churches have relationships, and thus any absolutist concept of church-state separation which would require the antiseptic avoidance of such relationships is absurd. Worse, however, is the idea that government may regulate churches or church ministries, exercise surveillance over them, confine churches "to the sacristy", define their doctrines, entangle itself in their affairs, or arrogate to itself a role superior to the church. Indeed, traditionally in America, it was wisely deemed that the state has a positive duty toward religion to protect religious liberty.


Is a wall between church and state what the First
Congress* intended when it passed the First Amendment?

The framers of the Constitution did not speak of a "wall". But they clearly intended avoidance of a

I am mystified by your reference to "the First

state church and the greatest protection of all other churches.


Do you feel the framers of the First Amendment, in adopting the Establishment Clause, contemplated an absolute ban on government aid to churches, even if that aid were non-religious in purpose and distributed in a non-discriminatory manner?

The framers expressed nothing on the matter when, after extensive deliberation, they integrated their views in the written Constitution. When one: is asked such a question, one must return the question by asking what is me int by "aid". Certainly subsidy was intended to be avoided and tax exemption was intended to be encouraged.


Do you feel that we need more guidance from either the Congress or the Supreme Court in defining the proper standard for evaluating claims of deprivation of free exercise rights? In other words, do the American people and American churches have a clear picture right now on what standard will be applied when the courts consider whether a religious practice may be upheld in the face of a civil law?

I think that the Supreme Court has laid out, in Sherbert v. Verner and Wisconsin v. Yoder, what is probably the best possible guidance for resolving Free Exercise questions. However, some judges have applied those teachings in niggardly fashion. It is up to attorneys defending religious liberty causes to push very hard to get courts to understand the full implications of the Sherbert


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