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cations of your case, and I am even more deeply concerned that many people in our country feel so incredibly upset about certain agencies of our country, and I wish that we could have all of our agencies operate in such a reasonable and fair way that all of us would feel good about them.
But I want you to know you have this committee's respect for appearing here today. I think you have added a great deal to this hearing. Whether people agree with you or disagree with you, you have exercised your rights to testify in public in the freest of all lands, and that we have to have respect for.
So I want to thank you for taking time to be with us.
Reverend MOON (through interpreter). Mr. Chairman, could I have one small request to make as a conclusion?
Senator HATCH. Surely.
Reverend Moon (through interpreter]. To you, Mr. Chairman, with the help of your committee members, such as Senator DeConcini, that small request is, that I understand the Department of Justice prepared a so-called prosecution memorandum on my case. The prosecution memo prepared by the Criminal Tax Division of the Justice Department recommended that the U.S. Government should not indict Reverend Moon, because their professional opinion was that there was no criminal case there. This was the unanimous opinion of three lower echelons of the Justice Department, if I understand correctly.
In an unusual move, these three levels of attorneys were ordered to do the second review. They reviewed a second time, and still recommended against prosecution. Their recommendation then went up to a high-level, political appointee, with no criminal tax experience, who reversed all the recommendations of his own people, and authorized prosecution by the U.S. attorney in New York, without giving any good reason.
Mr. Chairman, and Senator DeConcini, I am sure the American public, and the religious community would like to know the truth here, and the American media want to know the truth, I am sure.
Could you kindly use your good offices to request the Department of Justice to produce a copy of that memorandum? This would lend credibility to the claim of the religious community that the Federal Government is violating the first amendment, separation of church and State. Furthermore, exposure of this document will show to the world that my prosecution was politically motivated, and there was a conspiracy by certain Government officials to get Reverend Moon.
The world wants to know the truth. And furthermore, I would like to say, Mr. Chairman, in addition to the speech that I gave today, and the prepared text of the speech I would like to request that the Congressional Record be kept open for 30 days, so that I might introduce a longer statement for the record.
Mr. Chairman, I salute you once again for your courage and righteousness in standing up for religious freedom.
Thank you very much. God bless you.
We will keep the record open for that period of time, and we would also solicit comments from other religious leaders, as well,
concerning their particular concerns and support for religious freedom in America.
We, by necessity, could only have so many witnesses here today, and we may have to hold additional hearings on this subject, which seems to have a great deal of interest, and certainly should have a great deal of interest.
But, again, sir, we are grateful that you have taken time to be with us today, and we appreciate receiving your statement and testimony here today.
Thank you so much.
Senator Hatch. We were going to call at this time Dr. Bob Jones, Jr., the chancellor of Bob Jones University from Greenville, but this morning he called and said he could not be here. So we will skip over him.
Senator HATCH. I would like now to ask Mr. Tribe and Mr. Ball to reassume their places at the table to discuss again, from the standpoint of the first amendment, some of the issues, viewpoints, and suggestions brought out in the testimony by these past several witnesses.
While they are taking their places, I might mention that following, Mr. Ball and Mr. Tribe we will receive testimony from several other emminent religious leaders, scholars, and participants in the administration of churches, who may also wish to comment on some of the testimony we have received from several of our past witnesses.
Let us turn the time over to you gentlemen today and why do we not start again with you, Mr. Tribe, and then we will go to Mr. Ball. Mr. TRIBE. Thank you, Mr. Chairman.
If you would like me to make a couple of statements in reaction to what we heard, I would be glad to, or if you have particular questions, I will be glad to try to answer them.
Senator HATCH. Well, we would love to have some of your statements, if you could keep them to a minimum, I would appreciate it, but then I would have some questions for you.
Mr. TRIBE. I would be glad to.
Let me first say a word or two about Senator DeConcini's concern about the criminal justice system and the fairness of the jury.
I am sorry that he had to leave, but I am sure he will have an opportunity to look at the transcript of these remarks.
I think the premise of his remarks was that the jury is always the fairest mode of trial. Yet the premise of the American legal system-at least since 1930, when the U.S. Supreme Court, in United States v. Patten, held that a jury is not mandatory where it has been waived—the premise of our legal system is really very much to the contrary. The premise of our system is that the defendant has a right to a jury of his peers, and ordinarily that is fairer. But in extraordinary cases, in cases of extreme bias, or blindness, it has long been the assumption of the system an accused may have a right to waive a jury, and to submit his case to an unbiased life-tenured Federal judge, who does not have to risk the wrath of friends and neighbors. Thus, in 1965, in the case of the United States v. Singer, the Supreme Court left open a very profound question: namely, whether there are not some circumstances of defendants whose individual character or cause is so controversial and so unpopular that they should have a right to be tried by a judge.
Now, in my view, Reverend Moon's was such a case. In fact, the trial judge himself in that case made a rather important statement. He said he thought, after hearing the prospective jurors, that it would be fairer—to answer Senator DeConcini's precise question-fairer for this case, involving as it does sensitive and symbolically difficult issues of religious freedom, to be tried without a jury. And yet he felt he was powerless, in light of the prosecution's insistence that a jury be used, to act on that belief.
Equally remarkable, the prosecutor in the Moon case gave as her reason for insisting upon a jury the observation that Reverend Moon had the audacity, as he has here today before this committee, to speak to the world in front of the Federal courthouse, his belief that his was a religious persecution.
Senator HATCH. He ought to have had the right to speak in front of a Federal -
Mr. TRIBE. I would have thought the first amendment-I would have thought the first amendment, Mr. Chairman, would have given him that right, and yet that was the reason the Government gave for insisting on a jury. They said, ah ha, you question the fairness of our system, we will show you what is fair, we will give you a jury.
Now, in my view, it is still an unsettled constitutional question in this country whether that is consistent with fairness, or consistent with free speech.
The American Civil Liberties Union, the Southern Christian Leadership Conference, and the National Emergency Committee for Civil Liberties were among those who filed friend of the court briefs on this particular issue.
So to Senator DeConcini, I would simply want to say that one can simultaneously believe deeply, as I do, in the jury system, and yet believe that, when the jury is turned from a shield for the accused into a sword of inquisition, that is not the America I know.
Let me only add one other observation with respect to whether all this is a conspiracy, or whether it represents simply the ignorant disregard of people's rights. I think that Reverend Moon's request to see the Government papers in this case, which could well support his belief that this was persecution, is a request that I trust the committee will take seriously.
Senator Hatch. Well, on that point, that is a good request. My experience is that the Justice Department does not cooperate readily in those types of requests, but I think we will make the request, and I would hope that this is one case where the Justice Department will cooperate, because this is a religious freedom issue, and I am very concerned about this.
I am very concerned about whether there is—whether this case was motivated sheerly out of prejudice, or out of a desire to-out of an improper desire, in any way, shape, or form.
I also believe that the point that was made by Reverend Moon, through his interpreter, that if that is true, that there was such a memorandum, that that would go a long way to showing perhaps the depth of religious intolerance that we may have in our society today.
So I will make that personal request, and in the interest of this hearing, and in the interest of future unpopular religious leaders in America. Mr. TRIBE. Thank you, Mr. Chairman. I was going to say that even if-
Senator HATCH. I might also just say that Martin Luther was very unpopular in his time, and so was Wingley, and Calvin, and Knox, and so many others.
Mr. TRIBE. I think it is the history of religious movements often to be unpopular in their time. It is the history of Government often to be intolerant. It is also, as I think you rightly point out, not the first thing the Government wants to do, to expose the most dramatic evidence of its intolerance, and I was going to say that even if such a memorandum is not produced, that the ultimate issue here is not who was the demon. It is not really whether there is a conspiratorial mentality in Government.
I think the ultimate issue is disregard, disregard for fundamental constitutional and religious precepts. I think it was Justice Brandeis who once said that the greatest threats to freedom come from encroachments by the well meaning, by men of zeal who act without understanding.
So even if we are wholly generous about the motives of this administration and its predecessors, I think that the record that this committee is beginning to build is a record which suggests that the real villian of the piece, whatever the motives of Government might have been, the real villain is systematic disregard of fundamental precepts of religious freedom.
What one hears in all of these cases is an attempt to compartmentalize. The people in Nebraska are told by State officials this is not a religious issue, it is an educational issue.
People like Reverend Moon and other victims of Internal Revenue oversight are told this is not a religious issue, it is a tax issue.
It seems to me, Mr. Chairman, that we can very well pigeonhole religious freedom to death, if every time religion becomes relevant in one or another sphere of our social life, it is possible for men of zeal, without understanding, simply to dismiss the relevance of religion, as though religion had a place only at the top of some very remote spiritual tower, and were not relevant to the ordinary concerns of everyday life.
And if any lesson emerges form what I have heard here today, from Dr. Dixon, from Pastor Sileven, from Reverend Bergstrom, and from Reverend Moon, it is that, even with the best of intentions, intentions that frankly I doubt the Government had here, but even with the best of intentions, it is possible, unless we remember the demands of religious freedom, that the price we will pay is the sacrifice of religious liberty.
I would be happy to answer any more particular questions you might have.
Senator HATCH. Thank you.
Mr. Ball, if you would care to make some comments, we would appreciate it.
Mr. BELL. Yes, I have four, and I will be brief about them, Mr. Chairman.
First, I begin with the very point that Professor Tribe has made: The idea of excluding religious considerations from the deliberations of the jury.
This echoes some things that are extremely unpleasant that have surfaced in some other cases.
When the National Labor Relations Board attempted, some years ago, to impose its jurisdiction upon religious schools, the claim was made by the NLRB that the schools were “only partly religious," although the Supreme Court of the United States had already said that schools of that kind were an integral part of the religious mission of the church. They were a ministry, they were the church itself, but constantly in religious liberty cases you find an effort made, especially by Government attorneys, to so limit the definition of religion that the whole religious issue becomes irrelevant, if not inadmissible.
I heard a judge only recently ask what tenet of a religion was intruded upon by certain governmental actions which were going after the whole religious community. The judge, in other words, was mistakenly, and ignorantly, looking for some black-letter doctrine out of a confession of faith, and asking whether the Government was trying to contradict that. That is not an unusual situation in religious liberty cases.
The Amish, for example, had no particular tenet that was being offended by the effort of the government in Wisconsin to put down its religious practice.
Second, I think we need to keep in mind the statement that I heard earlier in testimony today, that ministers, like everyone else, can be jailed for breaking the law.
Well, fine. That is a superficial comment, however, in light of what we have heard today from Pastor Sileven. It all depends on what law, and it depends on the sufficiency of the trial by which that breach of the law was determined.
Here in Nebraska you had a situation which involved two basic laws, that you would have to get a license to operate the religious ministry, known as a Christian school, a permit from the State, in order to exist. This licensing of religious ministries flies directly in the face of the first amendment, to license a religious ministry.
But second, is the fact that it was the obligation of the government, as I mentioned in my earlier testimony, to prove a compelling State interest in its licensing law.
In fact, only nine States in the United States require licensing of nonpublic schools, and some of those license laws are relatively mild, but the fact that 41 other States do not require it is almost conclusive proof that there is no compelling State interest, no need, no public need to protect children through the licensing of schools, and so it is with teacher certification.
As to teacher certification, expert testimony, had it been introduced in that case, would have shown that teacher certification is nonsensical in terms of assuring good education.