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RESPONSES OF MR. BALL TO QUESTIONS OF SENATOR HATCH

1.

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.

2.

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

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state church and the greatest protection of all other churches.

3.

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.

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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

test.

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5. 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".

7.

Mr. Ball, 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.

8.

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.

9.

Do you disagree with the decision of the Nebraska
Supreme Court in Nebraska v. Faith Baptist Church of
Louisville, 301 N.W.2d 571 (1981)? Why?

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 record.

10.

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 cases in Vermont, Kentucky and examples of good decisions. So

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Christian school
Maine: these are
it's a mixed bag
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?

some good court decisions, some

Inconsistency is not the problem; understanding religious liberty is the whole problem.

11.

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?

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