or his obligations under the law of the civil authorities.

Because the Framers

believed that these duties had been forever fixed by an all-knowing and benevolent Creator, they had confidence that America would steer a well-charted course between the Scylla of religious anarchy and the Charybdis of religious

totalitarianism.

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RELIGIOUS LIBERTY AND THE FAITH OF THE SCHOLARS AND THE JUDGES

Beginning with the mid-nineteenth century, America's scholars became increasingly dissatisfied with the legal and political faith of their nation's Under the influence of Darwin's new evolutionary theory about the origin of the universe and of man, American jurisprudence shifted to a new assumption that judges did not discover law, but that they, in fact, made it. This legal philosophy is today's conventional wisdom taught in almost every law school in America. So widely held is this view that Laurence Tribe, professor of law at Harvard, stated with confidence and without discussion in the preface to his treatise on American Constitutional Law: "The Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideas and governmental practices." Under this view, law, having been "liberated" from fixed principles, has become subject to judges who make decisions according to changing social values and changing factual circumstances. The fixed law that originally guaranteed

our religious freedoms has been discarded in favor of a new set of evanescent rules invented by judges.

Since 1971, the United States Supreme Court has articulated a three-part test governing the constitutionality of religious claims under the First Amendment's Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). At the heart of this test is the Court's distinction between the "secular" and the "religious." Although the Court has never carefully explained this distinction, it has consistently followed a pattern of decisions that reflects the definition offered by Justice John Paul Stevens in his concurring and dissenting opinion in Wolman v. Walters, 433 U.S. 263 (1978): distinction between the religious and secular is a fundamental one. from Clarence Darrow's argument in the Scopes case: 'The realm of religion...is where knowledge leaves off, and faith begins....

"The

To quote

This evolutionary faith, that the religious freedom clauses separated out two kinds of "subject matters" and allocated one, "science," to the state, and another, "religion," to the church, has led the courts to exclude all God-revealed knowledge from the public school classroom. For example, Justice Tom Clark in Abington School District v. Schempp, 374, U.S. 203, (1963) ruled that the Bible may be taught in the public schools, but only if it is not presented as the Word of God. Following in these footsteps, a lower federal court judge has ruled that the creationist view of the origin of the world and of man may not be taught in the public schools because, based upon revealed truth, it is necessarily religious. McLean v. Arkansas Bd. of Education, No. LRC 81-322 (E.D. Ark. 1982)

Moreover, the Supreme Court has held that the posting of the Ten Commandments upon a public school classroom wall violates the Establishment Clause because the first four of those commandments are necessarily "religious," while only the last six could possibly be "secular." Stone

v. Graham, 449 U.S. 39, 41-42 (1980). By this decision the Court has suggested that some topics, like belief in God, must be totally excluded from the public school classroom because such a belief is not empirically verifiable.

Moreover, the Court has claimed that it must separate the "religious" from the "secular" in order to achieve its own goal of religious neutrality in the public affairs of the nation. That stated goal has invited attacks upon such long-standing practices as legislative and armed services chaplaincies. See, e.g., Marsh v. Chambers,

U.S. -----, 51 L.W. 5162 (1983). While the

Court has right fully rejected these efforts to eliminate all religious values from the law, it has pursued its policy of neutrality in the public schools to the complete and total exclusion of this country's Christian heritage from the public schools. A position such as this can be "neutral" only if one adopts the Court's assumption that God need not be consulted in man's search for truth. That was not the faith of our forefathers.

This difference of faith has inevitably brought the Court into conflict with the Constitution so that it must disregard the constitutional text and historic meaning of the religious freedom clauses. Thus, Justice Brennan, concluding that the Nebraska legislative chaplaincy practice violated the Establishment Clause, dismissed past presidential practices, past scholarly

expositions, and past congressional intentions to the contrary as no longer

relevant. Marsh v. Chambers,

U.S. -----, 51 L.W. at 5171.

Happily, the

majority disagreed and sustained the practice, but only after it had refused to

apply its own three-part test.

While the evolutionary faith of Justice Brennan did not prevail in the Marsh v. Chambers case, his views have dominated "free exercise" cases since he wrote Sherbert v. Verner, 374 U.S. 398 (1963). Armed with the Sherbert formula, namely, that any claim to religious liberty must be subordinated to a "compelling state interest," the Court has sometimes ruled in favor of religious liberty and sometimes against it dependent solely upon its views of "public policy." For example, the Court has ruled in favor of Amish parents who have refused to send their children to school past the eighth grade, but has ruled against an Amish employer who has refused to pay the social security employment tax. Wisconsin v. Yoder, 406 U.S. 205 (1972) and United States v. Lee, 101 U.S. 1051 (1982). While the Court has conceded that both claims were religious, it found the state's interest in preparing a "child for life in modern society" not of such magnitude to require education past the eighth grade when such a child lives in the Amish separated and self-sufficient agrarian community. On the other hand, the Court has found the social security system's need for funds of such a magnitude as to outweigh the Amish claim even when made by those living in that same separated and self-sufficient agrarian community.

Rulings such as these are based upon the assumption that the civil government has total jurisdiction over all but a small corner of a few peoples' religious lives that in the Court's estimation will not interfere with important government policies. That is, in fact, the foundation of the Court's recent ruling in the Bob Jones University Case. Indeed, the unstated assumptions of Bob Jones are that tax exemptions are benefits conferred by the civil government, not given by God, and that education belongs to the civil government, not to the people. Both assumptions, if followed in pursuit of the Court's version of "public policy," will inexorably reduce religious freedom in America to that which is found today in the Soviet Union old people may

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worship God within the four walls of a church building, but outside those walls a state-endorsed religion of materialism governs everyone.

CONCLUSION

In the early history of the Christian church, the religious department of the Roman Empire commanded the apostles to stop teaching in the name of Jesus. Having been taught well by their Master to render to Caesar only that which belonged to Caesar, the church fathers answered: "We ought to obey God rather than men." Acts 5:29.

This biblical lesson of jurisdiction inspired America's forefathers to write a constitutional guarantee of religious freedom that would protect themselves and future generations from civil government tyranny. Only if that jurisdictional principle remains fixed and absolute in American constitutional law will the people remain free. Changing constitutional principles in order to accommodate changes in circumstances and values does not yield "a living Constitution" as some believe. To the contrary, adhering strictly to the original terms, neither adding to nor subtracting from them, is the only assurance of true liberty and prosperity. It is as Moses spoke to the people of Israel: "Keep . . the words of this covenant, and do them that ye may prosper in all that ye do." (Deuteronomy 29:9)

While the majority decision in Marsh v. Chambers offers some hope that the Court, and therefore the nation, will return to the original understanding of religion as understood by the Framers, the American people must vigilantly pray for and select leaders who will make it their commitment to interpret and apply the constitutional text according to its historic meaning rooted in the Framers' faith in God.

Senator HATCH. Let us turn to you now, Dr. Hill. We are very interested in taking your testimony.

STATEMENT OF DR. EDWARD V. HILL

Dr. HILL. Thank you, Mr. Chairman, Senator Leahy.

The first thing I want to say is that I am sorry Senator, I think it is DeConcini, left. I wanted to assure him that this court system that I appreciate and this court of law once upon a time ruled that persons of my color was not even a person. And then finally they agreed that we were a percent of a human being and then, many years later, they decided we were a human being that needed to be segregated. So it is not the holy cow. It is not as holy as one might think. It is improving but it has a long ways to go.

And even in the primaries that we have just ended in Mississippi, Alabama, and Georgia, we see double primaries, we see double standards of registration. So let us keep moving and trying to improve it.

I do not think we really have a problem. The problem really— rather did not surface when the church was defined a religious freedom as just some place to worship. But there is something that has been happening in this country, and that is as a result of our worship, something greater is happening, and that is people want to be a part of the church and they want the church to be the church. Lives are being changed. People are conforming their lives to the word of God as they see it as being led by the Holy Spirit. New lifestyles are coming forward.

Thus they are turning to the church and to the pastor, not to the social leaders, not to the mayor, and what have you, but to the pastors, and seeking a new lifestyle. And they are seeking directions and help. And so, all of a sudden, the church must not only just gather a group to worship at a given time but, all of a sudden, the church now must respond to the needs and to the requests for leadership that the people throughout this great country is asking the church. Thus it has become, particularly in my State, necessary for a church in order to respond to the needs of the people and to minister to the total man, to become what is known as a nonprofit corporation, 501(c)(3) in the State-I mean in the Nation and to qualify in the State of California. And that is where the whole bag of worms, can of worms came open. Because once we qualify now as a nonprofit corporation, most States look upon us just as that, not a church, not a gospel movement, not a movement of God, but simply a nonprofit corporation to which every agent and all kinds of institutions in the State feel that they have a right to come in now that you are a nonprofit corporation and adjust your rules and regulations to the standards of what a State says a nonprofit corporation ought to be. They make no distinction between nonprofit, charitable corporations, like the Red Cross, over against a congregational controlled, nonprofit corporation church. And there is a great distinction.

One is organized to try to help and to bring help to suffering humanity in a physical manner. One is ordained of God to bring about a total help, both spiritual and physical. But when all of these agencies, simply because you now have qualified, as Mount