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THURSDAY, SEPTEMBER 16, 1982
Elizabeth Bull, president, Maryland Interfaith Committee for School
Mich.; Prof. Geoffrey R. Stone, University of Chicago Law School, Chicago,
ALPHABETICAL LISTING AND MATERIALS SUBMITTED
Prepared statement Bender, Prof. Paul:
Prepared statement Bergstrom, Dr. Charles:
the 194th general assembly of the United Presbyterian Church. Corman, James Č.:
Copy of the President's proposed amendment.
Office of Legal Policy.....
Questions and answers relating to the amendment Dershowitz, Nathan Z.:
Prepared statement Dugan, Robert, Jr.:
Prepared statement Goldsmith, Joanne:
Prepared statement Hatfield, Sen. Mark 0.:
Memorandum re the Widmar v. Vincent decision
McClellan, from the Free Congress Research & Education Foundation ... “Congressional Retraction of Federal Court Jurisdiction Over the Re
served Powers of the States: The Helms Prayer Bill and a Return to
1982 Jarmin, Gary:
"Defending the School Prayer Amendment,” by Grover Rees III, from the
PROPOSED CONSTITUTIONAL AMENDMENT TO
PERMIT VOLUNTARY PRAYER
THURSDAY, JULY 29, 1982
Washington, D.C. The committee met, pursuant to call, at 9:38 a.m. in room 2228 of the Dirksen Senate Office Building, Hon. Strom Thurmond (committee chairman) presiding.
Present: Senators Denton, Grassley, Heflin, Metzenbaum, and DeConcini.
Staff present: Eric Hultman, general counsel, and Karl R. Moor, professional staff member.
OPENING STATEMENT OF CHAIRMAN STROM THURMOND The CHAIRMAN. The committee will come to order. This morning the committee commences hearings on Senate Joint Resolution 199, a proposed constitutional amendment to permit voluntary prayer.
On May 17, 1982, President Reagan sent to the Congress a proposal for a constitutional amendment to restore voluntary prayer to our public schools and public institutions. That amendment reads as follows:
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.
I was pleased to introduce this amendment, on behalf of myself and Senator Hatch, on May 18.
The President, in submitting this proposed constitutional amendment, made clear his reason for supporting and submitting it to the Congress when he stated:
The public expression through prayer of our faith in God is a fundamental part of our American heritage and a privilege which should not be excluded by law from any American school, public or private.
President Reagan has, in my view, correctly and courageously acknowledged what is recognized to be a vital part of our American Government.
The evidence that we are a religious people surrounds us in our coinage, in our national anthem, in our pledge of allegiance. As President pro tempore of the Senate, I have the privilege of opening the Senate each day that it is in session. My first act after calling the Senate to order is to recognize the Chaplain of the Senate, who offers our opening prayer. That has been a tradition in the Senate for its entire history, and I expect it to continue to be in the future.
When I preside over the Senate and look at the lintel over the rear of the Chamber, there are four brief words inscribed on it: “In God We Trust.” Our Nation is founded on that premise and our faith in God, expressed through prayer, is richly engrained in American history.
Now, public opinion favors voluntary prayer. The American people are openly and overwhelmingly in favor of allowing prayer in our public schools. Several polls taken recently by leading pollsters in America indicated the following results: 80 percent of those polled approved of allowing prayers in public schools; 73 percent agreed that the Supreme Court and Congress have gone too far in keeping religious and moral values like prayer out of our laws, our schools, and our lives; and 71 percent favored a constitutional amendment to allow daily prayers to be recited in school classrooms.
There are few issues in my many years in the Senate which have commanded such strong and clear support by the American people. I believe that we in Congress, therefore, have a responsibility to address this very important matter.
Now, the legal basis for the amendment. The first amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."
Most constitutional commentators agree that this language was intended to prevent any national ecclesiastical establishment and leave each State free to define the meaning of religious establishment under its own constitution and laws. Over the years, however, as a result of interpretation in the Supreme Court, the true meaning of these simple and straightforward words has become lost.
The Supreme Court, until 1947, did not have the occasion to interpret the first amendment in a manner contrary to the intention of the Founding Fathers, as recognized by most constitutional scholars. However, in 1947, the Court decided the case of Everson v. Board of Education which held that the 14th amendment makes the 1st amendment apply to States and set out the "wall of separation" doctrine. Later, in 1962, the Court in Engel v. Vitale struck down the reading of a prayer before the start of school each day on the basis that it was a "breach of the wall of separation of church and state.” Thus, the Supreme Court set down a test which has confined the Court ever since. In Board of Education v. Allen (1968), the Court utilized a "child benefit" theory to approve the loan of secular textbooks to both secular and parochial schools. In short, the books were given to the students, not the schools; therefore, it was constitutional.
In deciding the Everson case in 1947, the Supreme Court in effect usurped the constitutional authority of the States over church-state relations. Scholars have argued that this decision and the subsequent line of cases are contrary to the intent of the framers of the Constitution. The 14th amendment was not intended to be used to change the meaning of the establishment clause. Also, mandating that public institutions be religiously neutral denies individuals