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1 The Records of the Federal Convention of 1787, 451-52 (M. Farrand ed. 1966).

Just as Benjamin Franklin believed it was beneficial for the Constitutional Convention to begin each day's work with a prayer, I believe that it would be beneficial for our children to have an opportunity to begin each school day in the same manner. Since the law has been construed to prohibit this, I believe that the law should be changed. It is time for the people, through their Congress and the State legislatures, to act, using the means afforded them by the Constitution.

The amendment I propose will remove the bar to school prayer established by the Supreme Court and allow prayer back in our schools. However, the amendment also expressly affirms the right of anyone to refrain from prayer. The amendment will allow communities to determine for themselves whether prayer should be permitted in their public schools and to allow individuals to decide for themselves whether they wish to participate in prayer.

I am confident that such an amendment will be quickly adopted, for the vast majority of our people believe there is a need for prayer in our public schools and institutions. I look forward to working with Congress to achieve the passage of this amendment.

THE WHITE HOUSE, May 17, 1982.

RONALD REAGAN.

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress:

"ARTICLE

"Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer."

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Senator HATCH. Our first witness will be the Deputy Attorney General of the United States, Edward Schmults. Mr. Schmults, for whom I have very deep respect, delivered an extremely thoughtful statement on this same subject during the earlier hearings in the 97th Congress.

So, Ed, we will turn to you at this time.

STATEMENT OF EDWARD C. SCHMULTS, DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

Mr. SCHMULTS. Thank you very much, Mr. Chairman. If I may, I would like to submit a longer statement for the record, along with an analysis of the first amendment and the need for the Senate Joint Resolution No. 73, and I will summarize my statement.

Senator HATCH. That would be fine. Without objection, we will place the full statements of all witnesses in the record today as though fully delivered.

Mr. SCHMULTS. Thank you.

I am pleased to appear today on behalf of the administration to support Senate Joint Resolution 73. This resolution proposes an amendment to the Constitution to restore the opportunity to engage in prayer in our public schools and institutions.

The President feels strongly that Congress should support this proposed amendment and should act on it as quickly as possible. We would ask that the committee and the Senate work toward passage early in the 98th Congress so that the States can begin the process of ratification during 1983.

My prepared statement explains at greater length why this amendment is a sound and necessary solution to the problems resulting from the prohibition of prayer in our public schools and institutions. In this statement, I will simply summarize the principal

concerns leading to the administration's decision to propose this amendment.

The President has proposed this amendment in order to permit once again voluntary prayer in public schools and other public institutions. It is intended to reverse the effect of two decisions of the Supreme Court-Engel v. Vitale and Abington School District v. Schempp-which held that it is an impermissible establishment of religion, in violation of the first amendment, for a State to foster group prayer or Bible readings by students in public schools.

Engel v. Vitale prohibited group recitation of the New York State Regent's Prayer in the public schools, although it was clear that students were not required to participate in the prayer.

In Abington School District v. Schempp, the Court struck down Pennsylvania and Maryland laws requiring that public schools begin each day with readings, without comment, from the Bible.

In the years following Engel v. Vitale and Abington School District, the courts have increasingly restricted the States from incorporating religious observances into the daily schedule of students in public schools, or even accommodating the students' desires to participate in prayer.

In one case, for example, a school principal's order forbidding kindergarten students from saying grace before meals was upheld. In another case, the Supreme Court affirmed a lower court decision striking down a school board policy of permitting students, upon request and with their parents' consent, to participate in a 1minute prayer or meditation at the start of the school day.

Another court prevented a school from allowing students to conduct voluntary meetings for educational, religious, moral or ethical purposes before or after school, even though other nonreligious groups may do so.

These and other cases have resulted in a limitation which some have argued would appear to preclude any action by the States or Federal Government affirming a belief in God. Thus, in the view of many Americans, the one provision of the Constitution expressly intended to protect the religious liberty of the people has instead been construed to prevent them from expressing their religious beliefs through prayer.

Against the background of these decisions, the President has proposed a constitutional amendment that will, in his words, restore the simple freedom of our citizens to offer prayer in our public schools and institutions.

The administration's proposed amendment would restore prayer to a place in public life consistent with the Nation's heritage and, in our view, would accurately reflect the historical background of the establishment clause.

In discussing the scope of the establishment and free exercise clauses, Erwin N. Griswold, former dean of the Harvard Law School and former Solicitor General of the United States, stated, "These are great provisions of great sweep and basic importance, but to say that they require all traces of religion be kept out of any sort of public activity is sheer invention."

This amendment also reflects and reinforces this country's long history of recognizing the existence of a deity to whom humility and thanksgiving are due. For over 170 years, prayers or Bible

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readings were a familiar part of the schoolday for American children and were viewed as an appropriate expression of humility and gratitude for the blessings which had been bestowed upon this Nation and its people.

Our country's most important public documents and occasions have traditionally been marked by a recognition of our dependence on a supreme being. As the Supreme Court has stated, we are a religious people whose institutions presuppose a supreme being.

This amendment is needed because the free expression of prayer is of such fundamental importance to our citizenry that it should not be proscribed from public places. The overwhelming majority of Americans have repeatedly made it clear that they favor a restoration of voluntary prayer to the public schools.

Prayer in the public schools has long been considered a desirable and proper means of imparting constructive moral and social values to schoolchildren, while generally encouraging in them a practice of selfreflection and meditation.

Conversely, the exclusion of prayer from the daily routine of students could convey the misguided message that religion is not of high importance in our society.

The unintended but inevitable result of current judicial interpretations of the establishment clause is not state neutrality, but a complete exclusion of religion, which is, in effect, state discouragement of religion. The Government neutrality mandated by the Supreme Court on matters of religion has proven, in fact, to be unachievable.

The proposed constitutional amendment is essentially intended to restore the status quo with respect to the law governing prayer in public schools that existed before Engel v. Vitale and the Abington School District cases were decided; that is to say, when prayers such as the Regent's Prayer and readings from the Bible without comment were not thought to be unconstitutional.

However, the proposed amendment affirms the fundamental right of every person to reject any religious belief as he or she deems fit, and not participate in the expression of any religious belief.

By establishing that nothing in this Constitution shall be construed to prohibit individual or group prayer, the proposed amendment would make clear that the establishment clause of the first amendment could no longer be construed to prohibit the Government's facilitation of individual or group prayer in public schools. The intent of the proposed amendment is to leave the decisions regarding prayer to the State or local school authorities and to the individuals themselves, who may choose whether they wish to participate. The proposed amendment would not require school authorities to allow or participate in prayer, but would permit them to do so, if desired.

The second sentence of the proposed amendment guarantees that no person shall be required to participate in prayer. This prohibition assures that the decision to participate in prayer in public schools and other public institutions will be made without compulsion.

In conclusion, we strongly urge prompt action on this proposed amendment so that the process of State ratification can begin. We

began our national history with an unforgettable declaration that governments were instituted in order to secure to the people those inalienable rights, including life, liberty, and the pursuit of happiness, with which the people were endowed by their creator.

Those rugged and inspired individuals who founded this Nation understood the importance of recognizing the source of our blessings. It is time that we restore the ability of our school children to do so as well.

Thank you, Mr. Chairman. I would be happy to answer any questions you may have.

Senator HATCH. Thank you, Mr. Schmults. Could you please elaborate on the reason for including in this amendment the last sentence relating to the prohibition upon requiring students to participate in prayer rather than simply referring to voluntary prayer in the first sentence?

Mr. SCHMULTS. Mr. Chairman, we thought it was unwise to modify the concept of prayer in the first sentence. It might be that if you put "voluntary" before "prayer" in the first sentence that a court would conclude that a teacher, for example, could not lead the class in prayer.

We incorporated the concept of a voluntariness and a firm prohibition against any compulsion whatsoever in the proposed amendment by the addition of the second sentence, which makes very clear that no person can be required by the United States or any State to participate in prayer.

Senator HATCH. Well, the pertinent language in Senate Joint Resolution 73, the administration's version, is:

Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any state to participate in prayer.

Let me just ask you this: What is meant in the proposed administration amendment by the phrase, or other public institutions? Does this mean that group prayer will be permissible in public libraries, museums, public buildings, et cetera, et cetera?

Mr. SCHMULTS. That is essentially correct, Mr. Chairman. I think the amendment, of course, deals primarily with the school prayer issue, but it is drawn so it is coextensive with the establishment clause.

It does not deal with private institutions because it was felt there was no need to do so. But it would make clear that in any public institution, such as those that you mentioned, it would be clearly permissible to have prayer conducted there.

Senator HATCH. Why did you not just limit it to schools, since that has been one of the major problems?

Mr. SCHMULTS. Well, again, that could have been done. We felt, for example, that there are some cases now asserting that you cannot open up legislative sessions with a prayer, and we felt that we would make this amendment coextensive with the establishment clause and deal with all public institutions. But it is true that school prayer is the principal reason for the amendment.

Senator HATCH. If you cannot open up legislative sessions with prayer, that would leave the Senate in a pretty tough predicament,