a great deal of careful examination, and one which has not been examined sufficiently.

Another thing, of course, relates to a combination of attitudes on the part of the public. Some members of the public are misinformed about dangers to religious liberty, and this possibly accounts for the fact that you have had the rather amazing situation that there has been no national outcry of great substance on the part of millions of people over what has been occurring in Nebraska.

The question of the growth of State power, of governmental power, of course, is an enormous question, and as government grows in all areas, we certainly need what Professor Trible refers to as countermeasures. We need policies that will, in such legislation, protect religion. We have very weak exemptions often, where an exemption is truly needed.

I believe that the school question is the most sensitive of all the religious liberty questions in the country. We are here very much dominated in some of our States by the essential thinking that Bismarck employed in Germany during the Kulturkampf, the spirit of the French laic laws, which I see are now being very much revived in the effort of the French Government to grab the Catholic schools.

Finally, I think we ought to have a new look at the situation of religious liberty in public education. I think that the three main cases of McCullom, Engle and Schempp, need reexamination, in light, not of establishment clause considerations, but in light of the fact that there are millions of children in public school today, who in the most active part of their day, and the predominant part of year, have no means of religious accommodation.

Finally, Professor Tribe spoke of the growth of intolerance, both on the part of government and on the part of religious groups, and he mentioned the fact that we ought to be opposed to intolerance, whether it is on the part of IRS, or in the pulpit.

But here I would respectfully suggest, Larry, that there is a major difference which I know you recognize. Intolerance in the pulpit is not governmental intolerance, and oftentimes people in the pulpit do express, very strongly views on social issues. Yet these are certainly completely constitutionally protected. Intolerance by government is another problem, indeed.

Thank you, Mr. Chairman.

Senator HATCH. Thank you.

Let me just ask you both one other question, and then I would like to submit a series of questions in writing to you.

I would like to ask each of you, as lawyers, to comment on the situation in Nebraska. I happen to love Nebraska, I think it is a great State, and I feel quite deeply about it, but do you disagree with the decision of the Nebraska Supreme Court, and if so, why? Mr. Tribe.

Mr. TRIBE. I think perhaps Bill Ball should begin his answer to that question, because he has been more intimately involved with the case, and I would be glad to talk next.

Senator HATCH. Mr. Ball.

Mr. BALL. I do not know how far I should go in commenting because I will be arguing before the State Supreme Court in Nebras

ka on July 2, but what I have to say, I guess, is already much in the public record out there, and we are not involved in a jury case, with a criminal trial at this point.

I had mentioned before that you have two basic Nebraska laws, the licensing of teachers and the licensing of schools, which have been resisted by Christian pastors in the State.

The State's obligation was to prove that it had a compelling State interest in imposing these laws on religious ministries, and the schools had the obligation of proving that they were indeed religious ministries, and I think the church carried its burden. The State did not carry its burden, but a great weakness in the case was that no real expert testimony was introduced on the subject of education, I mean real expert testimony.

Also, there was a failure to raise certain basic constitutional issues.

Now, that being the case, the Supreme Court of Nebraska took the case as it found it, judged on the record it had before it, and judged adversely to the church. This case was then appealed to the Supreme Court of the United States, not certiorari but appeal, and the Court summarily affirmed, meaning it is the law of the land, even though the strongest inference is not derived from a case that is not made after full briefing and oral argument.

Nevertheless, it was an affirmation, and not a mere denial of certiorari. That left the situation in Nebraska where the county judge, down at the bottom of the judicial heap, felt forced to hold in contempt any pastor who was violating what was now declared to be the law of the State.

This whole misfortune in which the case was born has now continued in prosecution. There have been violent breaches of due process of law in the enforcement proceedings, and as yet there has not been the chance that ought to have been afforded long since for a proper trial of the issues so that there could be testimony which would prove beyond a shadow of a doubt that the teacher certification and licensing schemes do not assure anything in the way of an educational quality. But all of that is part of the tragedy of Nebraska.

And I realize that today the State has enacted some new statutes. These will possibly render the case in which we are involved moot, or it may not. Beyond that, I cannot comment, except that I think it is the most grievous open sore relating to religious liberty in the country.

Mr. TRIBE. Mr. Chairman, I have three different remarks about the case.

First, with respect to the contempt power, it raises technical and important issues entirely separate from religious freedom, on which I do not think I have any useful addition to make.

Second, the case raises, outside its four corners, a profound issue not only of the relationship between church and state, but also of the relationship between family and Government.

In the 1920's, the U.S. Supreme Court established, in the landmark cases of Pierce v. Society of Sisters, and Hill Military Academy and Meyer v. Nebraska, that it is not the proper role of the State to standardize the human psyche into a single mold-that it is not the proper role of the State to insist that all children be edu

cated in lockstep, as the State would conceive the ideal citizen; that, so long as minimal protections against abuse and utter illiteracy are preserved, it is the prerogrative of the family to provide educational options for its children.

Now, although it is regrettable that only the more affluent families in this country have been able, in many cases, to take advantage of that right, it is a precious right, and it is one that would be trivialized if the State's control over alternative educational institutions, whether religious or secular, were to become so total that they are simply clones, and copies of public schools.

So it seems to me important to understand the Nebraska case in its broader context-the broader context being that of imposing limits upon Government authority. It was said to be part of the mandate of the current administration to take Government off people's backs, and whatever the validity and wisdom of that mandate in the economic sphere, surely the sphere in which it has the greatest validity is in the sphere of initimate, private, human relations, and in the family.

That is why I answered Senator Leahy earlier that, although the shield of family and privacy should not prevent the State from extending a protective arm in cases of demonstrable child abuse, nonetheless there really has to be a showing of abuse. And I would say, similary, that if the State is to interfere in the decisions of communities, families and churches, as to how best to bring their children up in this complicated world, it had better have a good reason, a reason other than simply its insistence on preserving its prerogratives in the licensing process.

The third point that I wanted to make is that, although there are ominous trends in the land, these cases involving both education and taxation have created extraordinary and unexpected unities of prupose, which I think bode well for the future.

It was said long ago, by Chief Justice John Marshall, that the power to tax is the power to destroy.

We have often learned, I think to our regret, that the power to educate may also be the power to destroy. And I put the word educate in quotes.

I think the power to destroy, when wielded by an intolerant Government, generates alliances that are wholly unexpected.

In the case of United States v. Moon, for example, there were amicus briefs from distinguished public officials, not ordinarily on the same side of many issues-yourself, the National Conference of Black Mayors, Senator Eugene McCarthy, Claire Booth Luce. There were groups involved in that case who have rarely seen eye to eye on anything: The Freemen's Institute, the American Civil Liberties Union, the Marxist League, the Catholic League for Religious and Civil Liberties, the National Council of Churches, the National Evangelical Association, the Southern Christian Leadership Conference. There were churches who disagree on much else, who were agreeing that there is a common national problem: The Presbyterians, the Mormons, the unregistered churches, the Baptists, the AME Zionist Church, and others. It seems to me it is cause for hope when government intolerance, and government oppression, and even government stupidity, create such powerful, and, I believe, enduring alliances of purpose. I think that this com

mittee is serving an important mission in bringing to light what many of us who disagree on so much else, have in common in this important cause.

Senator HATCH. Well, thank you.

Let me ask you one other question. I raised the-just two of the issues in the Řeverend Moon case. The one that you so eloquently raised in your brief.

But the other one was the failure by the court to properly instruct the jury, and in fact, instructing the jury not to give any consideration to religion.

Do you have any comments about that?

Mr. TRIBE. Mr. Chairman, I fully agree that that was error. I believe that had the court

Senator HATCH. I think it was egregious error.

Mr. TRIBE. I think it was egregious, I think it was horrendous. Obviously, the U.S. Supreme Court will not tell us what it thinks; but history might.

The Korematsu case, which was decided in an outrageous and egregiously wrong way in the 1940's, was finally corrected, decades. later, by the Federal District Court in the Northern District of California.

It seems to me that the books of history close very slowly on cases of great moment, and I think it is important that the last word on matters of this kind not be written until a great deal more is known.

Certainly in the case of the jury instructions, we have an egregious situation here, in which the U.S. Court of Appeals was itself divided, two to one, on the propriety of those instructions, and I think I might simply point out that if Reverend Moon should go to jail, he will be not only the first religious leader sent to prison largely because of the tenets of his faith, and the way it chose to organize its affairs; he will also be the first person in this country, in at least a quarter of a century, to be sent to jail for an alleged tax violation, where the appellate judges could not even agree among themselves as to the tax standards applicable.

I think I say nothing terribly surprising, for all of us who have to grapple with the tax system, when I observe that it is complicated enough without the threat that if some people think you violated the law, and others do not, and they are all Federal judges sitting with life tenure, you might nonetheless end up in a U.S. penitentiary. That is all the worse when the guesswork to which you are put is thrust upon you in a context as fragile and as vital as the exercise of first amendment freedoms-involving how to organize a religious community.

And it seems to me, therefore, that the problem that you raise about the instructions in this case is a problem that will not go away simply because the Supreme Court has declined to hear argument in the case.

Senator HATCH. Well, we not only have a jury trial imposed upon the defendant against his will, feeling that he probably cannot get a fair jury trial, but imposed for what really are frivolous reasons, or should I say a frivolous reason.

And then on top of that, we have a judge directing the jury itself to not give any consideration to religious reasons.

Mr. TRIBE. It does not seem like the image of fairness, does it? Senator HATCH. Well, it certainly does not to me. I mean, I can disagree with Reverend Moon, and I can disagree with some of the tenets of his religion, and I can find fault, perhaps, but I do not care who it is, I do not care if it is the most unseemly, or despised person in our society, in this society, we should all be in the forefront of trying to protect that individual's right to have a fair and complete trial, and to have the best possible opportunity to maintain his or her freedom, and I am concerned about it.

I think it is a much bigger issue than the Supreme Court has given consideration to, and if you consider some of the points that you have made, we have a religious leader who I suppose is going to enter the penitentiary on the 20th of July, probably would have had a good chance of winning his case had either proper instructions been given to the very jury that was imposed upon him, really against his will, for a very frivolous reason, by the prosecutor, and I might add by the judge, in a case of first impression, it seems to me.

And the jury not being able to consider the most important issue involved in the case, and that is did he have the right to hold these funds and properties in trust for the church?

Maybe I am oversimplifying this, but I really do not think so.

As I read the record, I just thought that that is an extremely important issue, which combines with the other issue of his right to take the most protective way as a defendant in the freest land of all, which takes such great pains, and has from the beginning of this country, to protect the rights of the accused.

Mr. Ball, do you have any comments finally on this last point, and then I am going to let you two-

Mr. BALL. I think the exclusion of the religious consideration was perhaps the most egregious error that was committed in the case. I cannot imagine what reason there would have been, I know of none, for having done that.

Senator HATCH. How could you decide a case, the holding of the church funds, without any consideration was to what that church's rules and regulations and beliefs were?

Mr. BALL. In spite of what is now possibly going to happen to Reverend Moon, we at least have one small consolation, that this was a refusal, a denial of certiorari, that is to say it was not a definitive ruling on the merits of the question raised. That is small consolation.

Senator HATCH. I think that is a small consolation, but nevertheless it is a consolation.

I want to thank both of you for being here. I know that you both widely disagree from time to time. That is what really makes this country so great.

We have remarkable minds in the two of you, who can come together as has most of the religious community, at least in some instance, with this particular case, and I might add in the case being addressed as well.

So I really appreciated having both of you here. You have added a remarkable dimension to this particular hearing. It means so much to me as chairman of this committee. I have listened to so many hours of constitutional testimony over the last 4 years, and I