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ISSUES IN RELIGIOUS LIBERTY

TUESDAY, JUNE 26, 1984

U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, DC. The subcommittee met, pursuant to notice, in room SD-106, Dirksen Building, commencing at 9:08 a.m., the Honorable Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senators Leahy and DeConcini.

Staff present: Dee V. Benson, special counsel; Randall P. Rader, general counsel; Carol Epps, chief clerk; Leslie Leap and Deborah Dahl, clerks (Subcommittee on the Constitution); and Dick Bowman, counsel (Committee on the Judiciary).

OPEN STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR

FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. Ladies and gentlemen, this hearing will now come to order. We are here in the capacity of the Senate Judiciary Committee's Subcommittee on the Constitution, which I chair, to conduct an oversight hearing on the state of religious liberty in America today.

This is a subject of monumental significance to our Republic. The right of every man to be free from governmental coercion or interference in his personal relationship with his Creator is fundamental to our free and democratic way of life. Its value cannot be overstated.

As historian Sanford Cobb has so accurately observed: Among all the benefits to mankind to which this soil has given rise, this pure religious liberty may be justly rated as the great gift of America to civilization and the world **

The concept of religious freedom has been central in the political philosophy of the leaders of our Nation since the Pilgrims first landed at Plymouth Rock in 1620. It was significant in the 18th century debates of State legislatures and the Continental Congress, where it had the indefatigable support of men such as Thomas Jefferson, George Mason and, of course, James Madison.

These debates culminated in 1789 in the passage by the First Congress of the first amendment in the Bill of Rights. That amendment contains these few but well chosen words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof *

(1)

These words, clear as they may seem, have been the subject of significant, and sometimes heated, debate since their enactment almost two centuries ago. These debates have often led to lawsuits and from time to time the U.S. Supreme Court has stepped in to give guidance and interpret those simple words. In 1947 the Court told us in Everson v. Board of Education that the establishment of religion clause means at least that:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

With respect to the free exercise clause, the Supreme Court stated in Wisconsin v. Yoder that:

Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.

In other decisions, the Court held in 1962 that a prayer composed by New York State school officials for voluntary recital in the public schools constituted an unconstitutional establishment of religion; in 1961 that Maryland's Sunday closing laws did not constitute such an establishment of religion, in 1981 that a State university in Missouri could not, without violating the establishment clause, allow equal access to a student religious group to school facilities used by other groups, and finally, in this year, 1984, and I am only hitting a smattering of the cases, that a Christian nativity scene paid for out of public funds and sponsored by a municipality does not represent an unconstitutional establishment violation.

With respect to the free exercise clause, the Court has told us that the State of Wisconsin cannot require children of the Amish faith to abide by a State law requiring attendance in a formal high school until age 16.

Where these judicial interpretations have left us in law and practice in 1984 is subject to legitimate differences of opinion. Much has been and is being written on the subject of religious liberty in America. On the one hand, there are those who suggest that for all our efforts the first amendment, in both its establishment and free exercise clauses, has been misinterpreted and misapplied. On the other hand, there are people who feel that the religious freedoms contemplated by the Founding Fathers are, for the most part, being fully protected

Perhaps it is best for us to look upon this extended dialogue over the precise meaning of the first amendment as evidence of a healthy and enduring Constitution. This subcommittee hopes it means at least that. But this subcommittee is also aware that in the minds of some, the present climate for religious liberty in America is not all it should be.

By any standard of measurement, there has been an alarming acceleration of disputes between American citizens and Government officials over the proper role of the Government in the affairs of churches. Just to mention a few of these disputes, we have recently seen a minister and others sent to jail in Nebraska for refusing to obey a court order which they feel, rightly or wrongly, is against their religious beliefs; we have seen a private religious university lose its tax exempt status, rightly or wrongly, because of the school's racially discriminatory admission standards; and we have seen a private religious university lose its tax exempt status, rightly or wrongly, because of the school's racially discriminatory admission standards; and we have seen a foreign national, who came to our country to spread the word of God in the form of the Unification Church, investigated by the Internal Revenue Service and accused and convicted of criminal tax evasion stemming from allegations that he was in possession of money and property which he contended was not his own but rather the property of his church.

We have also seen disputes over whether municipalities may, constitutionally, sponsor nativity scenes at Christmas, whether Orthodox Jews may wear unobtrusive religious headgear in military service; and, of course, we have recently had extensive debate on the Senate floor over school prayer and whether religious institutions are entitled to use public buildings in a manner equal to other community groups.

These issues and others will be discussed at today's hearing. Hopefully, we will leave here with a better awareness of the relative well-being of our fundamental religious rights and will reach some helpful conclusions. A debate that is still going on and presently exists as an amendment to the math and science bill. The jailings of ministers are especially disturbing to me. Here we are putting men of cloth, as it were, behind bars right here in the 20th century. It is more than disturbing to me. It is alarming. This is not the Soviet Union, this is not Poland, this is not Afghanistan, this is the United States of America. [Applause.]

Please, I would like really not to have any show of emotion during this hearing. That does not mean I do not want you to act the way you feel but I just believe that the purpose of this hearing is to explore these matters and find out. As I was saying I am concerned because this is the greatest country in the world, it is the greatest country providing the greatest measure of religious freedom in the world today and I am concerned about putting ministers in jail because of their religious beliefs and tenets or if they are not religious beliefs and tenets, because of courts that will not allow religion to be considered as part of its instructions to the jury.

Now, something has got to be wrong. To be sure, we have come a long way since the early days of this country when priests were jailed, ministers were shot, and witches were burned at the stake. But some are worrying that perhaps we may be slipping back. I happen to belong to the only church in the history of this country that had an extermination order put out against its members by a State Governor. That happened over a century ago and I for one would like to think that it will never happen again, not in this country. but what are people to think? When a Baptist minister of a church-run school in Nebraska, which by a number of objective measurements may be doing a better job of educating children than the public schools, is sentenced to jail for refusing to compromise his religious beliefs to satisfy what appear to be unnecessary State reporting regulations. And what are we to think when a leader of an unpopular church who is generally hated and despised by large groups of people may be thrown in prison after a court refuses to recognize what some believe to be his and his church's constitutional rights in a criminal trial in our very own Federal courts? Have we just become more skilled in hiding religious persecution behind the veil of an investigation by even that most irreligious of institutions, the Internal Revenue Service? I hope not.

But it is surely time we started finding out, and that is why we are here today. These are not easy questions, these are not easy matters, they are tough. And this has been a very difficult hearing to set up and I have been very concerned about it.

In arranging for this oversight hearing, the subcommittee has made every effort to include a wide variety of viewpoints from a representative sampling of all religious groups active in today's America. We may need to hold followup hearings to get an even wider variety of viewpoints.

As a result, we will be hearing today from Presbyterians, Fundamentalists, Baptists, Unificationists, and Lutherans, among others. And we have received written statements from many other religions, such as the Seventh Day Adventists, the Hare Krishnas and the Scientologists, which will be made a part of the written record of these proceedings. And we will be happy to receive responses from other religious institutions throughout America as well.

Now, all of today's witnesses have been requested to provide the subcommittee with their observations on the current state of religious liberty and to recommend legislation if they so choose which to them may appear necessary and appropriate to correct any deficiencies in practice or current law.

Our purpose here today is not to retry or unnecessarily reargue the facts of any previous lawsuits. We are interested in past church/state litigation only to the extent it helps us understand the current state of affairs.

We feel we have an outstanding group of witnesses to help us in the task at hand. Of course, central to that task is a constitutional inquiry. We are not here to necessarily adjudge what is fair or necessary or desirable but rather what is constitutional.

To assist us in that regard we have invited two prominent lawyers and constitutional scholars, Prof. Laurence Tribe, who has testified before this committee many times, of the Harvard Law School; and Mr. William Bell, a noted constitutional lawyer on the issue of religious freedom, who also has testified before this committee, from Harrisburg, PA.

Before we invite these witnesses to the stand, I would be happy to turn to my dear friend and colleague from Vermont, Senator Leahy.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

SENATOR FROM THE STATE OF VERMONT
Senator LEAHY. Thank you, Mr. Chairman.
I do have a short statement I would like to make.

I am glad you are having these hearings; like all of us, we find, and I am sure the chairman is in the same situation where you have five or six or seven different hearings scheduled at the same time, and that is the situation I find myself in. So at some point I will have to leave to go to another hearing. But I do commend you,

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