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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)).

12.

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.
Senator LEAHY. Thank you. I appreciate that, Mr. Chairman.

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. I would welcome him for the record.

Senator HATCH. We will take his statement.

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.

Mr. TRIBE. If there is objective evidence of direct abuse, that is correct, Senator.

Senator LEAHY. My last question, and I have a number of questions I want to submit for the record to both the witnesses if I might, Mr. Chairman, but my last one is that the FBI and the Justice Department have issued guidelines for many of their agents to pose as clergy in undercover operations.

Do think that there should be-that this should be allowed or should there be a statutory ban prohibiting the use of such cover by the Government?

Mr. TRIBLE. Senator, my reaction to that is a mixed one. It does seem to me that there is a legitimate governmental interest in assuring that the good name of religion in America not be abused by groups that simply don the mask of religion in order to obtain various benefits. But at the same time, techniques whereby Government sullies its own hands by impersonating religious believers leave me deeply troubled. It seems to me that the use of informers and undercover agents in law enforcement generally, although important, is easily subject to abuse and that certain forms of Government impersonation are so inherently troublesome and problematic that, without clear proof that they are indispensable to law enforcement, which I seriously doubt, I would think that practices of that kind should be legislatively disapproved.

Senator LEAHY. Thank you.

Mr. Chairman, I appreciate the courtesies. I will submit the rest of my questions for the record. I know you have a long agenda. Senator HATCH. Thank you, Senator Leahy.

I will submit questions as well.

I want to thank both of you gentlemen for your excellent statements here today. I think you have added a great deal to this hearing in setting the tone and establishing some of the problems which do exist or may exist-may exist and which may very well be major problems in the future. And I think to that extent we really have appreciated having both of you with us.

Now, we will excuse you for the time being but I would like to be able to ask you to be prepared to return to the table after our next several witnesses so that we can have a discussion concerning specific details regarding the issues they raise. We really do greatly appreciate your opening remarks which have set, in my opinion, the proper constitutional tone for this hearing. We will keep your comments about the Constitution in mind as we proceed.

Mr. TRIBLE. Thank you, Mr. Chairman.

Mr. BALL. Mr. Chairman, may I, when we return, have the opportunity to respond to Senator Leahy's question concerning the Vermont parents?

Senator HATCH. I would be happy to have you respond at this point.

Senator LEAHY. I would be happy to hear him now.
Senator HATCH. While Senator Leahy is here.

Senator LEAHY. I was trying to save the time.

Mr. BALL. I will save the time

Senator LEAHY. As you could imagine, the question is one, the very substance of the question would be one of interest, whether it involves anything in Vermont or any of the other 49 States. But I

must admit that my attention is focused a wee bit more because of Vermont.

Mr. BALL. I join completely in Professor Trible's answer to your question, but with this addition. I think we have seen in a number of States lately that the State really considers itself to be the superior parent. It provides regulation and frequently licensing of activities upon which it ought not to regulate and in which it should not require a license. And thus at times the real question becomes not whether the parents were taking care of their children properly, or whether a school is operating to the benefit of children, but merely the technicality of whether it got a license.

In this view the matter is then allowed to proceed by criminal complaint against the parent or the operator of the school merely on the grounds that he did not recognize the State's right to impose licensing upon him.

Senator LEAHY. I think you raise a very important point. We do seem to have more and more and more of this idea that somehow, whether at the municipal, State, or Federal level, we are going to take over and, at least when I was growing up-and I am only 44, so it has not been that long-what was considered the responsible duty of our parents. And when I was growing up in Vermont I would assume that there were certain responsibilities that my parents had and they would pass on those responsibilities to us, too, with our own children. And I must admit, Mr. Chairman, I think my mother still feels she has those same responsibilities when I go home.

But

Senator HATCH. Knowing you, Senator, I am sure she is going to watch over you very carefully.

Senator LEAHY. But the point is a good one, at some point we are going to ask the question, may be that is one of the most valuable things out of these whole hearings, ask the question, At what time do we say wait a minute? Parents have some responsibility to their children and their children vice versa have some responsibility to their parents and these are not responsibilities that Senator Hatch nor I or anybody else can legislate or take care of. They should be taken care of at the basic places where they should be done.

Senator HATCH. Well, I am going to thank Senator Leahy for his interest in this hearing and of course the excellent issues that he has raised.

Thank you so much, gentlemen.

We will now ask our next two witnesses to come forward. They are Pastor Everett Sileven of the Faith Baptist Church in Louisville, NB; and Dr. Greg Dixon, who is the national chairman of the Coalition of Unregistered Churches, Indianapolis, IN.

Both of these men have had considerable contact and experience with the State government of Nebraska in recent litigation which centers on the issue of State legislation of a church-run school. We will begin with you, Dr. Dixon, if we can.

STATEMENTS OF PASTOR EVERETT SILEVEN, FAITH BAPTIST CHURCH, LOUISVILLE, NE; AND DR. GREG DIXON, NATIONAL CHAIRMAN OF UNREGISTERED CHURCHES, INDIANAPOLIS, IN

Dr. DIXON. Thank you very much, Senator Hatch, Senator Leahy.

Again, may I say that I appreciate the opportunity of being here today, especially when I understand that hundreds have asked for the privilege of testifying.

I also would like to say that I heard nothing from Mr. Ball and Mr. Tribe that I would disagree with and I appreciate the gentleman coming and so succinctly putting forth what I believe is our faith at this time.

Senator HATCH. You will never hear a more succinct or a more competent discussion of constitutional ramifications concerning religious freedom than these two gentlemen have given here today. Dr. DIXON. I agree, sir.

It was the cause of religious liberty that gave birth to this great Nation. Now it seems that the Nation is determined to destroy religious liberty. John Leland, the leader of the Virginia Baptists objected to the first drafts of the new Constitution. He asked: Where are the guarantees of complete religious liberty; where is the protection for the individual to believe or not to believe, to worship or not to worship, to be free to support his church or any religion or any religious cause and free also from Government to support some particular church? His influence caused Madison to introduce the first amendment that has been the guardian of religious belief and practice for these 200 years.

It was also the bleeding back of Baptist street preachers that inspired Patrick Henry to give his "Give me liberty or give me death" speech. No nation on earth has been blessed as this Nation. We must either say that God is responsible or that America is an accident of history. I believe, along with most Americans, that the hand of God has made this possible.

But it seems to me that the government at all levels now is saying to God: We do not need you any longer or your ambassadors. For all practical purposes the first amendment, in my opinion, is now dead. The religious guarantees of the Constitution is not but a scrap of paper, like Russia and other Iron Curtain countries, where you are free to believe but not practice your faith.

Lower court judges continually say: "We cannot rule on the Constitution." However, they are quick to rule in matters that, in my opinion they have no jurisdiction, such as matters concerning church discipline, as an example.

The state has literally declared war on religion. There are over 6,000 believers on trial for their faith in America today. Through zoning laws, churches are being shut down, Bible studies in homes have been stopped, and cities have demanded that an infant church have as much as 1 acre to begin. A judge recently closed a church in Sparks, NV, because the pastor said: I am a preacher.

But the judge said: No, you are a school teacher. And therefore he closed the church. Besides, a pastor was jailed and a church padlocked in Nebraska and the other pastors-and Pastor Gelsth

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