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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,

Mr. Chairman, for choosing to devote a hearing of this subcommittee to the important subject of religious freedom.

As one who belongs himself to a minority religion, I do not think that the importance of such a hearing can be overstated. You certainly do the subcommittee and you certainly do the whole Senate a service in holding this hearing.

Freedom to worship God in each person's own way is a right we should never regard as permanently secure, for too many times in mankind's history guarantees to that effect have proven overstated; especially when those making the guarantees consider themselves to have the one true faith and those needing the guarantees are those who are considered to be in the majority. And that is something that we should never forget in this country.

But nevertheless, I think history will show the current era as a time when religious expression was bursting with energy. This is a time when the inherent strains in the first amendment between the free exercise clause and the establishment clause-the tug of war between the will to worship without restraints of any kind and the fear that favoring religion will result in State sponsorship of religion-have risen to the surface really more than at any other time in our 200-year history. Yet this is also a time when the good sense of people have kept these strains from dividing our society along religious lines.

I remind everybody in this room that such divisions of faith have weakened and destroyed so many nations, so many nations throughout history.

The Senate recently defeated Senate Joint Resolution 73, which would have overturned the Supreme Court's school prayer cases and allowed vocal State-sponsored prayers in public schools. Some people regard this vote as a victory because it reaffirmed establishment clause values. I looked at it somewhat differently. I looked on the vote as a victory because it kept Government from interfering with the religious freedom of millions of American schoolchildren. A number of witnesses here today will talk about the problem of bureaucrats interfering with rights of individual conscience.

The very thought of Government committees making up prayers for my children to offer to God is offensive to me. Our vote in the Senate on this important religious freedom issue is a sure sign to me that the first amendment is not a dead letter in America, but a living signpost pointing the way to the potential for enriching the spirit without impoverishing the principles that nurture that spirit. In addition to the school prayer debate, there are other conflicts regarding religious liberty which should be aired by Congress-conflicts over the taxation of religious entities, conflicts over equal access to religious and nonreligious student groups during noninstructional time in the public schools, conflicts over the content of textbooks, conflicts over the payment for books in parochial schools, conflicts over released time and conflicts over official sponsorship of public religious displays.

The fact that there have been conflicts is far, far less important than the fact that most of the conflicts can be resolved or greatly reduced through the judicial and political processes that are guaranteed by the Constitution and that are working as well today as they were nearly 200 years ago when the Constitution was born.

Certainly in my own State of Vermont, tiny little Vermont, northeastern part of the United States and within the State an area that we call the northeast kingdom of Vermont, we have seen just in the past few days when these issues have come up, but the issues will be resolved again through the normal judicial and political processes under the umbrella of both our Federal and State Constitutions.

I am convinced that trying as the situation is in Vermont today, that those issues will be resolved.

The legislative branch of Government has a strong and legitimate interest in the health of religious freedom and the effectiveness of the institutions that guarantee its continuance. If there are lapses in needed protections, those lapses must be exposed. And if we need new legislation, we should write and consider those bills now, and again, one of the reasons why the importance of this hearing.

In addressing any harm that may come from the actions of State or Federal bureaucrats, who are no more or less perfect than any other public servants, we should not create additional dangers to religion. For example, I see a danger in the diminishing of religion which could come from prayers in school that are so bland and homogenized that they offer little spiritual nourishment to anyone. I see a danger in the use of religion to bolster single-issue politics, whether to the right or the left, and to polarize, rather than unite. I see a danger in cloaking secular legislative decisions in God's word and will to justify one policy position over another.

I welcome the witnesses who have taken the trouble to come to Washington to address these and other concerns. The diversity of opinions that are likely to be expressed here today is a sure sign that religion is a vital American concern, full of life. And above all, free.

If I just think back through history of the number of countries where there could be no public hearings of this nature, with such a diversity of views and beliefs, each one of which will be considered.

Again, what I said earlier in my statement, that we must make sure that these guarantees are never proven overstated, these guarantees of religion, especially when those making the guarantees consider themselves to have the one true faith. That is the sign throughout history if those seeking the guarantees were considered to be in the minority, that the majority was starting to question the values of the guarantees.

One of the things that has kept this country so strong for 200 years is that the majority has never questioned the value of those guarantees. They have never diminished the value of those guarantees to the minority of religious belief in this country.

So we in the Senate and the American people are going to be the beneficiaries of the interest and zeal of those who are testifying here today. I know I speak for Senator Hatch when I say you have the thanks of both of us and I reiterate again, Mr. Chairman, I thank you for holding this hearing.

Senator HATCH. Well, thank you, Senator Leahy. I appreciate your kind remarks.

We will begin this morning by inviting Mr. Laurence Tribe from the Harvard Law School and Mr. Willian Ball, a constitutional

expert and trial lawyer from Harrisburg, PA to come to the witness table to present some brief preliminary remarks on the constitutional underpinnings of religious freedom which will serve as a standard for the subcommittee to refer to as we proceed to hear from our other distinguished guests.

I do not know of two people in this country who could speak more eloquently or more accurately on religious freedom issues than these two kind gentleman, and I have deep respect for both of them. And we are delighted to have both of you with us today.

After we have had a certain number of these people testify, I would like to be able to call you back again to give us some of your comments concerning what you have heard this morning.

STATEMENTS OF PROF. LAURENCE H. TRIBE, HARVARD LAW SCHOOL, CAMBRIDGE, MA; AND WILLIAM B. BALL, ATTORNEY, HARRISBURG, PA

Mr. TRIBE. Thank you very much, Senator Hatch, Senator Leahy, members of the subcommittee. I am honored by this subcommittee's invitation that I appear to express my views here this morning on the Federal constitutional underpinnings of religious liberty in America and on what I quite frankly perceive to be an escalating disregard by Government both for religious freedom and for the separation of church and state without which such freedom, and the open society that such freedom sustains, cannot long endure. I will speak quite briefly and hope that I can be of some help to the committee in answering questions after it has heard further testimony.

I think I should inform the committee at the outset that my concern with these issues of separation of church and state has led me to serve as counsel in recent years in a number of major churchstate controversies in the State and Federal courts and in the Supreme Court of the United States as well as in the Supreme Courts of other nations-sometimes representing churches and church leaders, sometimes opposing them, depending entirely upon where I saw the path of constitutional justice leading me.

To note just a few prominent recent examples, and to illustrate the breadth of the problems that make this an important hearing, I have represented or counseled the Worldwide Church of God, in challenging the authority of a State's attorney general to place a bona fide church under total Government receivership; Jewish groups, in challenging Government's command that they sacrifice their Sabbath or their religious interests in order to take part in athletic contests to represent this Nation in international competition; Buddhists, in challenging the power of Japanese courts, operating under a consistitution and a consitutional provision modeled on the first amendment, to determine which is the true icon of the faith; the Reverend Sun Myung Moon, in challenging the authority of the Internal Revenue Service and the Department of Justice and Federal courts and juries blatantly to substitute their own views for those of the Unification faith on the allocation of power and property within that religion. I have also represented the Unification Church of America, in challenging the authority of a State tax commission to determine eligibility for real property tax exemption

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