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What did the First Congress* intend to do with the Free Exercise Clause? Do you feel that the framers of the First Amendment thought that a religious practice could ever violate a legitimate civil or criminal law?
I am not familiar with any intention which the First Congress may have entertained specifically with reference to the Free Exercise Clause. As to the framers of the Constitution, I am also without actual evidence. If surmise will do, I would assume that they would have considered that not every religious practice could be exempt from application of civil or criminal law.
Do you endorse the proposition that if we go too far in pushing the government out of the churches in our quest for separation and so-called "neutrality", that we will end up creating a society in which religion is in effect discouraged and an anti-religion attitude is fostered instead?
This has already happened, and at the very heart of our society - namely, in the education of the millions of our children in the public schools. It is utter nonsense even to suggest that our public schools are religiously "neutral". They are in fact pervasively secularist. As Justice Stewart predicted, we now have a tax-supported religious establishment of Secular Humanism.
Again, I am puzzled by your reference to "the First Congress".
Mr. Bali, in an article you wrote for a book entitled Church, State and Public Policy which was published in 1978, you stated that mediating institutions, such as church-sponsored private schools, were being overtaken and emasculated by government. Do you still feel that way?
I believe that the governmental threat of takeover continues today, and that the private schools' self-emasculation continues. All of this I set forth in my testimony on "Governance in Education" before the Senate Committee on Labor and Human Resources on October 19, 1983. I hope that this may be more widely read.
You also observed in the article that church schools needed to take a stand - to resist unconstitutonal violation of their right to educate. Have you seen any increase since you wrote the article in the willingness of church schools to take a stand, to fight the government?
Happily, yes. Evangelical and fundamentalist Christian schools have taken the lead in resistance and deserve great credit for that.
Do you disagree with the decision of the Nebraska
I disagree with it, but I must at once add that the Nebraska Supreme Court decided that case the way it did on the basis of the poor trial record on which it had to base its decision. The
seemingly unending woes in Nebraska stem not only from intransigant and biased local government officials but also from that sadly deficient trial
From some of the comments we heard at the June 26, 1984 hearing, it seems that a lot of people are critical of the way our courts are handling the religious freedom cases. Do you agree? What are the main problems - inconsistency? Or approach?
It depends on which cases you have reference to. Some cases have been decided extremely well by our courts. The NLRB-parochial school cases, the Christian school cases in Vermont, Kentucky and Maine: these are examples of good decisions. So it's a mixed bag - some good court decisions, some bad. The problem in the bad cases must be seen under two headings: (a) How well was the case set up? Were the right issues raised? How good was the record? (b) Did the court have sensitive appreciation of religious liberty? Did it jackknife the case procedurally (as by, for example, improperly granting a motion for summary judgment)? Did the court express bias? Inconsistency is not the problem; understanding religious liberty is the whole problem.
Do you agree that in every case involving the First Amendment, a court will be faced with a balancing test - state interests versus an individual's or a group's right to freedom of religion - and that often that test is difficult to apply?
No - that states the matter too simply. It's never a question of "public interest". The "public interest" has nothing to do with the matter. The government may prevail in a religious liberty case only if it proves that its action is justified by supreme public necessity and - repeat, and - if it proves that no less restrictive means exist to meet that necessity. In this connection, I commend to your attention the two excellent opinions from the Ninth Circuit in the Callahan v. Woods cases (658 F.2d 679 (9th Cir. 1981)); 84 Daily Journal D.A.R. 1281 (April 24, 1984) (No. 83-1688)).
Obviously, whenever that balancing test is applied, one side will win and the other will lose. Do either of you believe - and I recognize this is a practical question, not necessarily a constitutional one - that when the individual loses, it is ever appropriate in our legal society for that individual to wilfully violate a valid court order?
No, if by "valid" you mean a court order which is in compliance with the Constitution.
Senator HATCH. Let me turn to Senator Leahy at this point.
I sit here and I keep moving up the time that I have to leave for the next hearing. I think this is probably the most interesting thing happening on Capitol Hill today, some of the issues that are being raised here, which really requires selling.
I was one of those Senators who joined in a letter to the Attorney General, and I think perhaps, Mr. Chairman, you were also asking him to seek certiorari in the Moon case in the Supreme Court to get these issues settled.
We will also have, Mr. Chairman, I understand, be allowed to have at the end of this hearing Rev. Paul Weaver from Vermont to put a statement in.
Senator HATCH. We will be happy to do that.
Senator LEAHY. He is a well-respected religious voice in our State.
I would like to ask Professor Tribe a short question.
In your view, does the State have an interest in protecting the physical well being and safety of children even if to protect them would interfere with the sincere religious beliefs of a child's parents?
Mr. TRIBE. Senator Leahy, I believe the answer is "yes,” the State does have that interest and religion is not an excuse under our Constitution for inflicting harm on helpless people.
But in answering that question-and with a view toward the recent events in Vermont where, as I understand it, Judge Mahady ordered that a number of children could not be detained for some 72 hours in order to find out whether there was abuse-in answering that question, I do want to stress this: Paranoia and suspicion are no substitute for concrete reason to believe that harm is being done. It is all too easy for people looking at an unusual or an unpopular religious movement to characterize those who are under its sway as abused and to act on the basis of that belief, whether or not there is any evidence of it.
It seems to me that, as long as we are going to recognize, as we must, the power of Government to protect helpless people, including children from abuse, whether in the name of God or in the name of any other local, as long as we are going to recognize that power we also have to recognize the grave danger of the abuse of that power and we have to create protections against such abuse. And among such protections there must be a requirement-before a Government intervene, intervene in what appears to be a bona fide religious movement—there must be a requirement of some objective reason to believe that, apart from the majority disagreement with the particular movement, something is happening which is unlawful, coercive or endangering to the health or safety of individuals.
In the absence of such objective reason, I think that mere suspicion should never suffice.
Senator LEAHY. Well, that is a standard that you would apply to allow Government decisionmakers to intervene over the religious objections of parents.