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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
to deleg the awar of Oregate land
on the basis of that Commission's own views as to the content of church doctrine and theology; the Hare Krishnas, in their challenge to certain limits on public solicitation for religious purposes; Christian children and parents, in challenging prohibitions on purely voluntary, after-school, student-initiated prayers on public high school premises open to other groups. I have represented a Massachusetts restaurant in challenging the authority of the State to delegate to the governing body of churches the unilateral power to veto the award of nearby business licenses. And I have represented the State of Oregon in challenging the authority of the Rajnish church to incorporate land owned by it as an official municipality of the State of Oregon.
Now, that variety is merely illustrative, and just as I have taken on these causes out of personal conviction as to what a just and fair reading of the Constitution requires, so I appear before the subcommittee today to speak my convictions as a student of the constititutional law of church-state relations.
I appear not as advocate or as counsel for any individual, any institution, or any group. I am certainly not a spokesman for Harvard University, where I hold the only chair in constitutional law, and whose recent insistence on holding its graduation exercises on a Jewish holiday seemed to me sadly insensitive.
I appear, then, solely to express my own views and my own conclusions and to help guide this subcommittee as well as I am able through the legal thickest of church and state.
Now, generalizations about such large matters are obviously treacherous, but I believe that the ultimate aims of the first amendment's religion clauses are first, to facilitate spiritual volition by showing no Government favoritism toward or animosity against any religious group or view, allowing each to flourish according to the zeal of its adherents and the appeal of its dogma; second, to assure that spiritual institutional never be armed with governmental powers either of the sword or of the purse, and that Government not be wrapped in the mantle of infallibility that comes from identifiction with the divine-a mantle donned by the Ayatollahs of the world but rejected by our mantle that makes it possible for Government to denounce its critics as enemies of the Almighty; and, third, to guarantee such governmental accommodation to religion as may be reconciled with these basic objectives, so that religion is never relegated to a mere irrelevance, and so that, when religion bears on a matter of concern to Government, it is taken fully and meaningfully into account.
The Supreme Court in the recent of case Laskin v. Grendel's Den summarized the purposes of the first amendment's garantees as twofold: to foreclose State interference with the practice of religious faiths and at the same time to foreclose the establishment of a State religion familiar in other 18th century regimes. Unlike some observers I do not see those two clauses as in fundamental tension with one another. Of course, they will occasionally come into conflict. But they reinforce a common vision of the role of government in the affairs of humankind.
Thus, when the Court recently struck down a law giving churches governmental power—the power to decide who, within a nearly area, could serve liquor—the Court recalled that, at the time of the Revolution, Americans feared not only a denial of religious freedom but the danger of political oppression through a union of civil and ecclesiastical control. In sum, meaningful spiritual freedom requires that Government keep its distance and not allow the intermingling of religious and civil institutions.
Whenever civil authority seeks at one and the same time to don the sanctifying cloak of religious ceremony and to wield the supreme authority to tailor religious destiny, then both the denial of religious freedom and the danger of political oppression are gravely realized. And I fear, Mr. Chairman, that that denial and that danger confront us increasingly in this Nation today.
In disputes over matters as diverse as the teaching of children and the taxation of income, government institutions at all levels are indeed forgetting how vigilant we must be to protect religious freedom. They are arrogating to themselves the power to define new boundaries between the secular and the sacred, to swallow the life of the spirit within the bowels of the bureaucracy, and to surround the secular halls of the State with the sacred garb of the church. I believe that it is not truly faithful to the vision of the Framers for courts to hold-as the Supreme Court did in the case of Marsh v. Chambers that legislatures may initiate their proceedings with official prayers pronounced by publicly funded chaplains but that high school children may not initiate voluntary studentinitiated prayers on public premises even after school hours, as a number of lower courts have erroneously ruled.
I do not think it is consonant with what the Framers envisioned for the most sacred symbols of Christianity-surrounded by plastic reindeer, to be placed at public expense in a city's central square as the Supreme Court allowed in the Pawtucket creche case, Lynch v. Donnelly-while neutral programs of financial aid to all private schools, religious as well as secular, are struck down, as they have on occasion been by our Supreme Court, simply because they encourage political activism by religious groups, activism which I would have thought was the fundamental right of all Americans. Nor do I believe that it is faithful to the Constitution's scheme for jurors in criminal cases to be licensed to substitute their lay allocation of church property or authority for that of a bona fide church, as they were shamefuly allowed to do in Reverend Moon's tax prosecution; or for officials in a State's educational bureaucracy to be licensed to superimpose their ideological criteria of what children should learn and who should teach them upon the religious criteria of families and churches, as seems to have occurred in Nebraska.
In decisions that some members of this subcommittee may deplore and in decisions that some may applaud, I fear, in short, that this Nation is departing dramatically from the relationship between church and state so wisely contemplated by the Framers of our Constitution. To the extent that the State and Federal judiciary either tolerate or engineer departures of this sort, it is not only those institutions to which we must appeal, it is also to the legislatures, both State and Federal-in other words, to Congress itself.
The courts of California were permitted by the U.S. Supreme Court to remain completely passive when then Attorney General Dukmejian, now California's Governor, imposed a receivership on an entire church-something that had not happened since the 19th