Senator HATCH. Our next witness is Prof. Burke Marshall of the Yale Law School. He is the former Assistant Attorney General for Civil Rights and one of the most distinguished constitutional scholars in the country. STATEMENT OF BURKE MARSHALL, PROFESSOR, SCHOOL OF LAW, YALE UNIVERSITY Mr. MARSHALL. Thank you, Mr. Chairman. I have a very brief statement, and I will read most of it into the record. Senator HATCH. That will be fine. Mr. MARSHALL. My name is Burke Marshall. I am the John Thomas Smith Professor of Law at the Yale Law School in New Haven, CT. I teach courses on the Constitution and constitutional litigation and have for several years taught a course at the law school concerned specifically with the first amendment, including the establishment and free-exercise clauses. My testimony is for myself. I do not speak for the Yale Law School or for any group. Let me state at the outset that I construe the language of Senate Joint Resolution 73 to contemplate the use in schools of prayers written or at least chosen by school boards or other instrumentalities of the State, in the context of the regular program of the school involved, with the proviso that no person shall be required to participate in prayer. In other words, I take the thrust of the amendment to be to overrule Engel v. Vitale and Abington Township School v. Schempp, as well as the many subsequent decisions implementing the constitutional policy applied in those cases. If I am wrong about the meaning of the proposed amendment, then the force of my objections to it would be diminished. The core objection to the resolution is that it inescapably leaves the matter of the choice of the prayer or prayers to be offered as part of a school program up to the agents of the State. Who else but members of the school board or other officials of the State will write the prayer, as in Engel? Who else but those officials of government can mediate among religious groups competing on political turf to have their religious faith represented by their prayer and not someone else's? Yet, what school board or school superintendant or parent-teachers association or legislature has the wisdom and knowledge to penetrate through religious beliefs and discover the eternal verities? It was to keep government and government officials out of the business of making such choices that the people asked to ratify the Constitution insisted on the inclusion of the establishment and free-exercise clauses in the first amendment as a condition of their approval. They realized that the making of any such choices by government is a step of extraordinarily important symbolism, even if an apparently minor one, in the direction of putting an official stamp of approval on some particular form of religious belief, as against all other conceivable alternatives. There should be no doubt that it would be perceived as such by those whom the proposed amendment is intended to benefit most, those who believe most deeply in their faith, and who take the teachings and tenets of their religion most seriously. Those who support the proposed amendment no doubt believe that it is the prayer of their faith that will prevail with the government decisionmakers in their community. But that is a false hope. Religious majorities are transitory in any given place, and it was their knowledge of the history of shifts in political decisions about religion and the resulting divisiveness, anguish, and strife among competing faiths, coupled with periodic suppression of some of them, that led Congress to propose and the States to adopt the first amendment almost 200 years ago. Further, it must be remembered that the particular prayer adopted must always under the proposed amendment be the prayer of the State, not of some particular church, even if borrowed from a church for awhile, because the decision to use that prayer is that of the State or its delegates, not of the church. The only alternative to the adoption of prayers of a particular faith were the resolution to become part of the Constitution, would be an effort by State officials to provide a prayer of their own, as in the Engel case, that is so bland that it offends no religion by attempting to find common ground among them all. That result, which might well happen from time to time and place to place, is not an exultation of religious belief, however, but a bland trivialization of a ceremony that is supposed to express personal faith. It is, in short, not hostility to religion, but deep respect for it and for the depths of the faiths held by the diverse religious organizations in this country that is at the heart of the establishment clause as well as the free exercise clause and is the fundamental reason for opposing the invitation in the resolution to government intrusion into religious beliefs. Finally, let me add a word about the second sentence of the resolution, which states that, "No person shall be required by the United States or by any state to participate in prayer." Senator HATCH. Thank you, Professor Marshall. Professor Cord and Dr. Malbin have both testified before this committee that the earliest Congresses, those presumably which best understood the intent and the meaning of the first amendment, engaged in a variety of activities designed to encourage religion generally. These activities, they say, included such things as providing construction assistance to churches, encouraging religious teachings among the Indians, creating various public chaplaincies, and so forth. What is the constitutional significance of this history, in your opinion? Mr. MARSHALL. Senator, I have no doubt that the founders as well as the present day political leaders of this country do not want to discriminate against religion. And they want to encourage the diversity of religious faiths in the country. The trouble with the prayer amendment is that it puts the state in the business of deciding religious beliefs and in the business of establishing compulsory religious beliefs. As the the Court said in Engel, I think that Dr. Malbin just testified, that Engel, especially, was completely consistent with what is at the heart of the establishment clause. And the-what the Court said in Engel was that the establishment clause has a central meaning. It is that the Government should not be in this business of writing prayers, which they did in Engel, or of choosing among and adopting a prayer that was written by some church. Now, that is the inescapable consequence of the resolution, as I understand it. Senator HATCH. Did the drafters of the 14th amendment, in your view, intend to alter in any way the establishment clause? Furthermore, what is the significance of the so-called Blaine amendment of 1876 in understanding the intent of the 14th amendment? As you will recall, Professor Malbin said that if the authors of the 14th amendment thought that it was going to negatively impact state encouragement of religion, Blaine would not have offered his own famous amendment, which passed the House and failed in the Senate in 1876 and read as follows: "No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof." So, again, did the drafters of the 14th amendment, in your view, intend to in any way, alter the scope of the establishment clause? Mr. MARSHALL. Senator, as you know, there is a long judicial history with respect to the degree to which the 14th amendment imposes on the States the constraints of the Bill of Rights, including the establishment clause. That history is, I think, well founded. It is consistent with part of the history of the passage of the 14th amendment and probably inconsistent with other pieces of that history. It is almost impossible with respect to this question and with respect to any other question having to do with the imposition of the constraints of the Bill of Rights on the States to decide that one way or another from the reading of the historical record. The Supreme Court tried that at great length, setting it down for reargument in the case of the Brown decision, for example. Senator HATCH. Would you respond to my suggestion that the issue here is not simply school prayer, but how constitutional policy is going to be altered in this country. For example, did the Court in Abington and Engel transform the existing constitutional understanding with respect to school prayer? Mr. MARSHALL. Not in my judgment, Senator. Senator HATCH. In spite of the research by Professors Cord and Malbin? Mr. MARSHALL. I did not hear Professor Malbin to say anything inconsistent with that. Senator HATCH. And yet for 175 years thousands of school communities had school prayer? Mr. MARSHALL. The matter had not come up to the Supreme Court, Senator. The Supreme Court is in the position in our system of having to determine what the Constitution means when a case properly comes before it that raises the question of whether or not what a State is doing is constitutionally prohibited. And that case-that question came before them basically for the first time in Engel v. Vitale. There were some previous indications, including the flag salute cases that I think predicted the outcome of Engel v. Vitale and Abington. Senator HATCH. How would you respond to Dr. Malbin's analysis that the intent of the first amendment was to ensure that the Government would not give preferential treatment to individual orders or denominations, not that it would be neutral toward religion? Mr. MARSHALL. Senator, Dr. Malbin knows much more than I do about the original intent of the framers, but as I heard his testimony, and as I understand the history of the clause, that was a part of it; the other part of it was that they did not want the Government to get into the position of having to choose among religions. That may have been implicit in what you just said. And the business of deciding what prayer it is that will be said in the context of compulsory school education, necessarily puts the Government in that kind of a position. That is my central objection to this amendment. Senator HATCH. Do you believe that a moment of silent prayer would be consistent with the Constitution? Mr. MARSHALL. Senator, may I say that the amendment is not limited in that way at all. Senator HATCH. I understand, but suppose we were considering a measure that allowed for a moment of silent prayer. Would this be consistent with the Constitution as you are interpreting it? Mr. MARSHALL. Well, as Dr. Malbin said, even silent prayer, if it is prayer in a Christian context, is choosing among religious faiths. And simply the use of the word "prayer" and the compulsion of or the use of the compulsory school educational system to engage in that practice has, I think, not nearly the same degree of intrusiveness as the amendment is written. But even that, I think, is bad policy; there is, as you know, a case that tests the constitutionality of a moment of silent prayer now under the establishment clause. And I am sure that that is an issue that will be decided by the Supreme Court in the next year or so. Senator HATCH. Perhaps we could say silent prayer and/or meditation. In any event, those who are unhappy about the present law complain that five justices on the Supreme Court in essence amended the Constitution when they determined this issue after 175 years of prayer in school. As a result, they say, religion and any observance thereof have basically been thrown out of the schools. What we are trying to do on this committee is come up with a proposal that will be acceptable constitutionally as well as acceptable to those offended by the idea of a set prayer or a vocal prayer or any other treatment which seems to favor a certain religious tradition. It is also important that we provide for equal access to the believer and nonbeliever alike. Do you feel that that is a worthless exercise, or do you feel that that is just something that should not be done? Mr. MARSHALL. Senator, my testimony and my objection is to Senate Joint Resolution 73—— Senator HATCH. The administration's proposal. Mr. MARSHALL. The administration's proposal. Senator HATCH. So you might feel differently about a better proposal that dealt with the concerns you have expressed today? Mr. MARSHALL. Well, I would not predict, Senator, but it might be less intense. Senator HATCH. OK. [Laughter.] Well, we are going to try and do that. We have appreciated your testimony here today. I do recognize you as one of the leading authorities in the country in the field of constitutional law. So, we are grateful for you taking this time to be with us. Mr. MARSHALL. Thank you, Senator. Senator HATCH. Oh, excuse me, Senator Grassley. Senator GRASSLEY. Just before you started to ask your first question, Mr. Marshall started to comment on the second sentence of the amendment, and I would like to hear what you were going to say about that. Mr. MARSHALL. I will not read my statement on it, Senator, but basically the significance of the second sentence is unclear to me. And at the least, it would lead to an enormous amount of litigation over what "require" means, which is the verb in the second setence, and what "participates" means, because I think that it is indisputable that under almost any program that you can think of, especially for primary school children, that there is a coercive effect that is on them simply by the adoption of this kind of a prayer program by the school, even though the school makes provision that they can opt out of it. Dr. Malbin in his testimony listed a number of hypotheticals, what if the school board did this, what if the school board did that? Each of those hypotheticals, as I listened to him, sounded to me like a lawsuit, and that the lawsuit would simply re-litigate the questions of the degree of coercive effect, which no one wants, of devices such as the released time device or the standing silently without praying, or whatever other devices are-may be used to try to escape that coercive effect. I think, Senator, it is very difficult to escape it. And if the second sentence of the resolution means that the courts are not to go into the question of indirect coercive effect, then I think it is a very bad amendment. If it is not intended to do that, but to permit the courts to judge the indirect coercive effects on schoolchildren of prayer programs, then I think the amendment would, as I say, lead to decades of litigation. Senator HATCH. Thank you, Senator Grassley. Thank you, Professor Marshall. We appreciate having you here. The last six witnesses will testify in two panels. So we will call at this time the Rev. Robert P. Dugan, Jr., of the National Association of Evangelicals; Mr. Dick Dingman of the Moral Majority; and Mr. Gary Jarmin, the executive director of Christian Voice. And then we will hear from the second panel. The reason that we will do this in panels is because basically these are organizational witnesses, and I think we can probably have a more lively discussion this way. We also have Mr. Forest Montgomery with the NAE. We are happy to have you with us as well. We will begin with you, Reverend Dugan. If you could limit your remarks to a summarization of about 5 minutes, we will have more time for questions. |