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, 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

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

century, when it was done to the Mormon Church in blatant violation of constitutional principles. When that happened in California, it was the California Legislature, not the courts, that responded by enacting limits upon such shameless pretensions to power. I think we have grown too accustomed to the fallacy that only courts may be relied upon to safeguard constitutional liberties. It is the mission of legislatures as well to be concerned about these matters and, for this reason, to the extent that the U.S. Supreme Court remains inactive while the Internal Revenue Service or the Department of Justice or State officials invade the sacred precincts of religion or prop themselves up with religion's supporting symbols, I believe it is Congress that should consider measures for redress.

It is especially appropriate that such measures should concern the religion clauses. For, unique among the protections of the Bill of Rights, the protections of the religion clauses of the First Amendment create not simply rights for individuals and minorities against the State; they create, in addition, a structural principle of disengagement between two spheres of life.

When that principle is violated, it is not only the rights of identifiable victims that are savaged; at risk is a form of society to which, for better or for worse, the Constitution commits us all.

It therefore seems especially fitting that, whatever role courts might play in the elaboration and enforcement of rights against Government, Congress should play a special role in preserving a structure of government that makes the very idea of rights have meaning.

In our society, I believe that such a structure requires the vigilant separation of the ecclesiastical and civil realms-not the expulsion of God from life, but the separation of the realms of God and of Caesar.

I believe that this subcommittee is to be commended for initiating what may be the first serious inquiry at this level in a very long time into the state of that separation in America today, and I trust that the subcommittee will keep in mind the broad considerations that I have tried to outline as it listens to the witnesses who follow.

Thank you very much, Mr. Chairman.

[Material submitted for the record follows:]

PREPARED STATEMENT OF LAURENCE H. TRIBE

I am honored by this Subcommittee's invitation that I appear to express my views on the federal constitutional underpinnings of religious liberty in America -- and on what I perceive to be an escalating disregard by government for religious freedom and for the separation of church and state without which such freedom, and the open society such freedom sustains, cannot long endure.

Although I am the Tyler Professor of Constitutional Law at Harvard Law School, and have served as counsel in several major church-state controversies in the state and federal courts, sometimes representing and sometimes opposing churches and church leaders, I appear today on behalf of no individual, group, or institution, but solely in my capacity as a student of constitutional law and as a scholar in that field.

My prepared statement will be brief. I welcome the opportunity to shed what light I can on the Subcommittee's concerns by answering as fully as time permits whatever questions members of the Subcommittee or its staff may have.

While generalizations about such large matters are always treacherous, I believe that the ultimate aims of the First Amendment's religion clauses are to facilitate spiritual volition by showing no government favoritism toward, or animosity against, any religious group or view, but instead letting "each flourish according to the zeal of its adherents. and the appeal of its dogma," Zorach v. Clauson, 343 U.S. 306, 313 (1952); to assure that

spiritual institutions not be armed with the governmental powers of sword or purse, and that government not be wrapped in the mantle of