But the requirements for standing to challenge state action under the establishment clause, unlike those relating to the free exercise clause, do not include proof that particular religious freedoms are infringed." Abington School District v. Schempp, 374 U.S. at p. 224. Why the requirements should not be the same for the free exercise clause and the establishment clause the Court has not explained. Moreover, there is a compelling argument that by its actions the Court itself has denied the right of free exercise to a majority of public school children, who are in effect compelled through a combination of federal court rulings and state compulsory school attendance laws to shed their constitutional rights of religious freedom while under the control of government authorities.

108. The Helms Amendment to S. 210, 96th Cong., 1st Sess. was subsequently shifted to S. 450, a bill dealing with the jurisdiction of the Supreme Court. The House Judiciary Committee, however, refused to take action on the measure. See Gerald Gunther, Constitutional Law (Mincola, New York: Foundation Press, 1979 Supplement) pp. 1-2. Proposed amendments to the Constitution to reverse the Prayer Decision have been introduced in most sessions of Congress since 1962, that sponsored by Everett Dirksen (R.-III.) achieving the widest support. On September 21, 1966, Dirksen carried a majority with him, but the vote of 49-37 fell short of the two-thirds majority necessary to propose a constitutional amendment. Dirksen's proposed amendment (S.J. Res. 148) was one of 150 measures introduced in the 88th Congress to reverse the Court's holding in the Prayer Decision. See Congressional Quarterly, II Congress and the Nation, pp. 410–11 (1964).

The CHAIRMAN. I want to express my appreciation to all of you gentlemen. I also want to express my appreciation to all who have come and testified this morning. We are very pleased to have these witnesses come and express themselves, and we are proud that we live in a country where the citizens have a right to petition the Government, to come and give their views as to legislation pending. That is exactly the opportunity we wanted to afford here.

Now, we are going to recess until 1:30, at which time, I believe the Democrats are to preside this afternoon. So we will now stand in recess until that time.

[Whereupon, at 12:45 p.m., the committee was recessed, to reconvene at 1:30 p.m. this same day.]

[Whereupon, at 2:45 p.m., the committee reconvened, Hon. Patrick J. Leahy, presiding.]

Senator LEAHY. I am Patrick Leahy. I am not the chairman of the committee, nor one of the majority members of the committee. It is unfortunate-apparently, these hearings were scheduled by the committee and by the chairman, and apparently, also at the same time that he is scheduled to be on the floor for the abortion amendment. It is regrettable that abortion and school prayer were scheduled for the same time. I cannot nor do I speak for the chairman of the subcommittee, although I understand that he and his committee staff have accepted the request of all the people who are here to speak, and they are indeed welcome.

What I would suggest we do is that we bring up the first panel, panel 5, the American Civil Liberties Union, Americans United for Separation of Church and State, and People for the American Way. If they would just join us at the witness table.

Congressman, it is good to see you here again.

Mr. BUCHANAN. Thank you, Senator.

Senator LEAHY. It is a bit too long, I must say, but we are delighted to see you here.

What I think we will do is have the panel begin, and I would leave it to you three gentlemen, whichever one of you would like to start first. I understand Senator DeConcini is going to come over at some point and will continue with the hearings.

I will probably have to leave to go back to the hearing that I was originally going to be at, and if I have to leave during that time, the hearing will continue, however, and staff will continue to take the testimony.

I might suggest that because of the delays, and because of the people who now are lined up, that we might keep statements to 5 minutes, if we could. The whole statement, of course, will be made part of the record.

Gentlemen, please proceed.

STATEMENT OF A PANEL, INCLUDING JOHN H. BUCHANAN, JR., ON BEHALF OF PEOPLE FOR THE AMERICAN WAY; W. MELVIN ADAMS, EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AND DAVID LANDAU, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION

Mr Buchanan. Thank you, Mr. Chairman.

First, let me say, I am John Buchanan, and I am here on behalf of People for the American Way, of which I am national chairman. Mr Chairman, I am constrained to say I share your regret at the way the hearings were scheduled and at the conduct of the hearings to this point, in that as a Republican who served for 16 years in the Congress, I deeply believe in what the founder of my Party had to say about government of the people, by the people, and for the people, and its importance to our society. And for those of us who represent, in my case, 110,000 Americans, and in other cases up to several million Americans, who have been given a day of hearings on a matter we consider of first importance, it is regrettable that people like the United Methodist Church, the Episcopal Church, several important school entities, the Seventh Day Adventists, and many others have not, perhaps, had the opportunity they expected in testifying on this important matter.

So I would not be offended should you convey to my Republican friends on this committee that feeling.

Se ator LEAHY. I might say-and before we start the clock on your time, so this will not come out of your time at all—I might say that I share the concern. I share it also as a parent, and one who has had my children both in parochial schools and in public schools-in parochial schools when they were going to school in Vermont before I was in the Senate; after I was elected to the Senate, I decided that because I would be in Congress during most of the school year, I wanted the children down here, and they have gone to public school here. One of the compelling reasons why they went to the parochial schools in Vermont was because they said the same prayers at school that we said at home, and I wanted them to go there, and I also had some control over it, paid tuition, and knew exactly what prayers would be said there. In the public school, of course, it is an entirely different thing. I am sure that whatever the school board might direct as a prayer there would not be the same prayers that we would be saying at home, and so my conservative Vermont nature comes out, and I am kind of happy that they do not direct the kids to say a prayer.

So I was hoping that there would be some expressions of some balance in these hearings, as I am sure there will be by the time everybody testifies.

So now we will begin your time, and I will convey your thoughts. Thank you.

Mr. BUCHANAN. Thank you, Mr. Chairman.

People for the American Way is a nonprofit, nonpartisan, educational project formed in the fall of 1980 to protect and promote Americans' constitutional freedoms, especially those contained in the first amendment.

We are opposed to this and any other attempt to amend the first amendment. While we welcome the opportunity to participate in this debate, it is somewhat troubling that we are today talking about amending the very constitutional amendment that allows me to sit here and petition my Government. The awesomeness of tampering with any part of the first amendment should give us all pause. A very heavy burden of proof should be required of those advocating the change.

The proponents of the school prayer amendments have failed to make their case primarily because they misstate what the law is today and what their amendments would do if passed. President Reagan says the Supreme Court "has effectively removed prayer from our classrooms"-but it is only Government-prescribed, institutionalized prayer that the Court has proscribed.

The President has maintained that his amendment will restore the right to pray, but on this very day, students can, if they wish, pray either singularly or in groups in public schools or other public buildings without violating the Constitution, subject only to a very few limitations: religious exercises cannot interfere with the school's other activities; the prayer cannot be sponsored by or appear to be sponsored by the governing body, and the prayer must be truly voluntary.

Prayer amendment proponents claim that they want to restore a widespread practice in public schools, and yet most children in the West and Midwest never engaged in prayer in school before the Supreme Court's decision in 1962.

Proponents claim the amendment is needed because the Supreme Court has banned all religion from public schools, but the only practices prohibited are mandatory religious exercises, not the study of religion or religious materials. For example, students may and do study the Bible for its ethical, literary, and historical qualities; they can and do study comparative religion; they can and do recite officially approved anthems with declarations of faith in a deity.

Neither the Bible nor moral instruction has been banned from the schools, nor is there a ban on students meeting voluntarily for religious reasons. In the recent 7-to-2 decision of Widmar v. Vincent, the Supreme Court said that religious activities are permissible on public school property.

The amendment we all testified against last year and which was resubmitted this year as Senate Joint Resolution 73 has been effectively dissected and discarded. The latest version proposed by Senator Hatch should be viewed in one of two ways. Either it is basically the same as the President's amendment, as some who wanted to testify were told, and therefore is subject to the pitfalls outlined above, or it is totally meaningless-meaningless because equal access is already to be found in the Constitution, and periods of silent meditation in public schools have never been found to be unconstitutional.

What I find disturbing is the lack of appreciation of the genius of the Founders in crafting the first amendment, especially in light of the way it has worked for the past 200 years. Let us recognize that the United States has avoided the secular strife of the Northern Irelands, the Irans, the Indias, and the Pakistans, thanks in large part to the tradition of the first amendment. There were times in the not-so-distant past when the Government tracked down people who believed, as I do, as a Southern Baptist. It was not too long ago that Baptist ministers were beaten, imprisoned and run out of town in the Colony of Virginia for preaching doctrine at variance with that of the established church. Government can be benevolent, but government can also be bigoted. Some forces behind this

amendment would take us back to the day when one person's religion could be imposed on another.

Too often recently have I heard school prayer proponents make statements not unlike that of Deputy Attorney General Edward Schmults: "We must teach minorities to respect the right of the majority." How frightening that statement is, and how antithetical to our history. And who knows who will be in the majority or minority tomorrow?

I am also very concerned about what the passage of this amendment might mean for our schools, already so overburdened. With today's problems, the last thing administrators, teachers, and students need is to be thrust into sectarian strife.

Mr. Chairman, the religious instruction of children is the responsibility of parents and their churches. It is clearly neither the responsibility nor the constitutional right of government or the public schools. Protecting the constitutional rights of American citizens is the solemn responsibility of the courts and the Congress. We at People for the American Way prayerfully hope that the Congress will take no action to dilute the first amendment, so hard won by our Founding Fathers, so protective of our sacred rights, and so much more important to the welfare of our children and of their children's children than Government-sponsored prayers in school could ever be to anyone's child.

Mr. Chairman, we urge the committee not report and the Senate not pass Senate Joint Resolution 73.

Senator LEAHY. Thank you very much.

[The following was received for the record:]