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love of freedom, of equality and of their fellow human beings. The love of God is conspicuous in its absence.

Neutrality toward God, in other words, is another myth. I know because I've tried it. I have doubts about God, and my doubts sometimes rise (or descend) to the level of disbelief. But I know that if God exists He is the most important thing in the universe and in my life. When I try to conduct any part of my life without regard to God I am not standing still but turning away.

God is also too important to be left out of the institution that seeks to prepare my child for life in the world. Like most Americans, I cannot afford private schools. The public schools will present my child with a set of facts and values that either includes or excludes God. I believe neither option to be neutral, so I hope his school day will include prayer, which is the affirmation of the love of God.

School is not, of course, the only influence in the lives of our children. Parents can teach their children how to pray. Parents can also teach their children patriotism and sex education. There is at least as good a chance that a child will be adversely affected by a teacher with idiosyncratic ideas about sex as by one who says the wrong prayer, but even the most fervent opponents of sex education seek only to persuade their school boards to omit it from the curriculum. Nobody thinks that the Supreme Court should declare it unconstitutional.

The observation that the Reagan amendment would not mandate school prayer but merely take power over the decision away from courts and give it back to school boards, goes a long way toward answering the horror stores advanced by opponents of the amendment. Any power is subject to abuse, but the possibility of abuse is seldom a sufficient argument against a power that can also be wielded beneficially.

The American political tradition is one of respect for minority opinions: in the 200 years during which prayers were said in our public schools, they were not typically used as instruments of sectarian oppression, and there is no reason to believe that Americans would use prayer as a way to offend their friends and neighbors after the passage of the amendment.

Some people would be offended. Some people are offended by the Christmas tree across from the White House, and some people were probably offended by the rabbi and the priest at the graduation I attended. Some people take religious objection to the Pledge of Allegience to the flag, and the Supreme Court has held that their children need not participate in the pledge. The Reagan amendment provides the same guarantee with regard to prayer.

GOVERNMENT IS NOT BEING NEUTRAL I hope that school boards can find prayers that offend as few people as possible. Though my child is a Catholic, there are many beautiful prayers in the legacy of King David and of King James that would enhance his faith and brighten his days. In some communities it may be more appropriate for children of various faiths to compose their own prayers, or to engage in a minute of silent prayer or meditation. Other communities would almost certainly choose to have no prayer at all. But the communities should decide.

Against the hypothetical abuses of school prayer by local authorities if the Reagan amendment passes should be arrayed the absurd lengths to which the federal courts have carried their constitutional rule against prayer. The courts have banned not only “official” prayers but also Bible reading, posting of the Ten Commandments on classroom walls, prayer meetings voluntarily initiated by students after class at times when other student groups were allowed to meet and school policies that allowed students to engage in a minute of silent meditation. One court even upheld a school principal's order forbidding kindergarden students to say grace before meals.

The continued enforcement of a nationwide rule against school prayer, and the erection by judges of higher and wider walls of separation between school children and God, is no way for the government to be neutral about religion. Ratification of the voluntary school prayer amendment would restore the spirit of the First Amendment, whose framers intended it to guarantee freedom of religion, not to impose a regime of freedom from religion in community life.

Senator DENTON. Panel No. 3 will be the Reverend Dean Kelley, staff associate for Religious and Civil Liberty; Dr. Jimmy Allen, president, radio and television commission of the Southern Baptist Convention; Dr. Charles Bergstrom, executive director, office of governmental affairs, Lutheran Council in the U.S.A.; and Mr. Nathan Z. Dershowitz, director of commission on law and social action, American Jewish Congress.

May I ask Reverend Kelley to make his statement?


Mr. KELLEY. Thank you, Mr. Chairman.

We appreciate the opportunity to be included in this panel. We would like to try the experiment of each focusing on a different aspect of the issue.

Senator DENTON. I would appreciate that.

Mr. KELLEY. While reserving the right to pick up later anything that does not get dealt with in that fashion.

I have submitted my formal testimony and I will content myself with highlighting one aspect of it.

I am giving this testimony today on behalf of the National Council of Churches which has employed me for over 20 years in the field of religious liberty.

We contend, as we have on each instance when this issue has arisen in the House and the Senate, that it is unnecessary to amend the Constitution to permit prayers in public schools and other public institutions. While respecting the concerns of the proponents and sharing some of them, we feel that an amendment is unjust, unwise, and unnecessary.

PUBLIC SCHOOL PRAYER IS UNJUST TO RELIGIOUS MINORITIES I would like to sketch the first aspect of that, why it is unjust, and why we look at it in that way. If you take a long perspective on the development of religious liberty among humankind, Senator, there was a time once, during most of human history, when everybody was required to belong to the One True Church, whatever that might happen to be in one part of the world or another. And, in fact, if religion changed, as it did in Britain when one ruler succeeded another, everyone was required to switch from one version of religion to another. And when one particular monarch took the throne, Queen Mary, a number of the leaders of the Church of England, such as Nicholas Ridley, Hugh Latimer, and others, were burned at the stake because they no longer qualified, they were no longer adherents to what had become the one true religion in that realm.

It was a great step of progress when you could leave the country, which many did upon a change of religion. And with the development of a number of nation-states in Europe, people who did not like the religion that the ruler required could move to the next

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state. They could emigrate. That was better than being burned at the stake.

That is called territorialism. Whoever ruled, it is his religion that will prevail.

Now it was progress from that when William and Mary instituted religious tolerance, which meant that persons not adhering to the prevailing religion could, nevertheless, live in peace in the realm provided they would do so quietly and not object too strenuously to the prevailing form of religion.

All this time it was presumed that a nation could not exist unless its citizens shared certain religious commitments.

When this Nation was founded, a really radical experiment was attempted. Founders of this Nation tried a new thing in human history. They tried separating the religious commitment from the civil commitment. In other words, people of various religious commitments could equally be citizens of the same nation. They tried that, and it is not really clear yet, because it has only been in effect for a couple of centuries, whether it will work.

So the first amendment, in our view, epitomizes that institutional invention, that experiment in human liberty, where people can all be equally citizens without having to share the same religion or profess that they do.

In England there was a tactic called occasional conformity when, in order to qualify for membership in Parliament, you had to go, upon occasion, maybe once a year, to the Church of England and partake of the sacraments, whether you believed in them or not.

Now it seems to us that an arrangement which would permit local school boards and municipalities and even States to set up in public institutions certain forms of religious practice, specifically prayers, makes no pretense that they shall be nonsectarian. The Justice Department's analysis stipulates that someone will-public authorities will-have to determine what those prayers will be, even if it is only selecting teachers or pupils who will offer a prayer of their choosing, but someone will have to make that decision if there is to be a coherent corporate prayer When that happens, persons who cannot share in that form of prayer in a public institution, which is as much theirs as the others, then become, to some degree, less fully citizens than those who share in the majority religious practice. They, as it were, will be guests in someone else's house or classroom for that period.

Now that, in our view, is an abandonment of the heroic experiment of the first amendment. It is a clear regression to territorialism because what is happening there is that a religious form becomes the dominant one, usually that of the majority--which is the “prince," the ruler in our society. The majority of the electorate will determine what the form of religious prayer will be in that public school or classroom, and those who do not conform to it have two choices: they can remain there quietly and not protest, not object, not disrupt the practice; or they can leave, that is, they can emigrate. It is a situation where the degree of their full belongingness to the civil society is impaired because of their nonconformity to a religious practice set up and authorized by the majority.

Now that, to us, is the vice of this kind of an amendment and many others like it that have been offered in the House and the

Senate, as has been observed. But they all have that in common, that they would regress to a form of submitting citizen's rights to local option, to territorialism, such as the first settlers of this country fled when they came to this country, to try to do an heroic experiment.

I would like to yield to other members of the panel.
Senator DENTON. Thank you.
Dr. Allen?

Mr. ALLEN. Yes, thank you very much for the chance to be here and share in this discussion of the issue of a constitutional amendment on prayer.

First, let me identify myself. I am the chief executive officer now of the Radio and Television Commission of the Southern Baptist Convention which is the Nation's largest evangelical group. I am past president of that convention. I am also chairman of the Americans United for Separation of Church and State and past president of that organization. It is a 100,000-member group which is dedicated to clarifying religious liberty in this society by helping to separate what church and state means through the legal processes of our society.

Since some of the proponents of this proposed constitutional amendment on religious ritual in public schools paint those opposing its passage as disbelievers in prayer or liberals in theology or secularists, I would like to begin my remarks by identifying my perspective on the issue.

I come as a theological conservative evangelical Christian. While there may be some voices arguing against the proposed amendment out of indifference to the prayer experience, I am not one of them. I argue against it out of that very concern for authentic and genuine expression of prayer. I think it is bad law which would produce either bland or bad results for genuine spiritual awakening in our land.

I speak here for myself. It is a cardinal principle among Baptists that no Baptist speaks for another. We see that two of your colleagues have spoken here today, both of whom are Baptists, Senator Mark Hatfield and our distinguished Senator from North Carolina, speaking on opposite sides of this issue, both of them coming out of our fellowship. We as Baptists do not speak for each other. We do not do that because we elect messengers rather than delegates.

I come thankful for my heritage both as a Baptist and as a citizen and recall the fact that religious liberty issues of our society have never been clearly defined. They have always been fought over, discussed. In the very beginning we talked about separation of church and state and Mr. Jefferson's letter to the Danbury Baptists. The fact is that James Madison was the author of that first amendment. He did it out of a deal he made basically at Madison Leland Park in Virginia where a Baptist preacher, John Leland, struck the deal because he was considering running against Madison for the Constitutional Assembly because of his concern for the persecution we felt and the necessity to guard religious liberty by some separation of the role of the state and the role of the church.

I have looked at this issue in a number of countries and I have come to a deep conviction that we have the right arrangement here

in our country and, as Mr. Kelley said, we are still working out the implications of it. But in the countries where religious passions are commingled with the state, there is chaos and where countries have sought to promote, sponsor, finance or mettle with religion, apathy is rampant. Officializing religion can only harm it. It is thus that I would like to urge you to reject the proposed amendment on religious ritual in public schools for two or three reasons. One is because the answer to the current confusion about free exercise of religion in public schools can be best worked out through the processes of constitutional interpretation rather than through amendment of the basic document. Do not amend it, interpret it.

There is confusion about what can and cannot be done in the free exercise of our faith within the context of public education. A great overreaction to the basic statements by the Supreme Court that governmentally composed prayers could not be forced on students has heightened this confusion. Both school patrons, boards, and administrations have been caught up in the process and some lower courts also have demonstrated similar mixed interpretations of the free exercise clause.

We are now caught up in a strange mixture of ieligious fervor on the one hand and religious insecurity on the other. Patience is wearing thin with the slow processes by which our society hammers out the applications of its basic guarantees of freedom. You as political leaders are particularly subjected to the emotional intensity of that process Simple slogans and a simple response are politically expedient for some of us. However, this amendment will confuse far more than it clarifies. It will create more barriers to genuine religious expression than it eliminates. It will divide us more than it unifies us.

For a number of years those caught up in the battle of vigilance for freedom of religious conscience have, along with our society as a whole, largely concentrated on hammering out the meaning of the no establishment of religion clause of the Constitution. Religious groups bent on securing governmental pwers of taxation for propagating their faith have created the necessity of such a process. The body of constitutional law interpreting the meaning of no establishment of religion clause has gradually evolved. It has been slow and often frustrating. But it ultimately provides healthy answers for a society convinced both of its commitment to freedom in diversity and to protecting the rights of religious expression.

Now our attention is being freshly turned to the meaning of the free exercise of religion aspect of the Constitution. Religious groups bent on securing governmental powers of compulsory education for propagating of their faith have created the necessity for such a process. We must define the legitimate expressions and explanations of one's faith within one's working relationship as an educator or a student. That process will be complex and difficult. However, it can be done and must be done. The point is that it cannot be done with this constitutional amendment.

To attempt to solve the issue of free exercise of religion in public education, as suggested in this amendment to the whole Constitution, is to use a sledge hammer and pick ax for an operation which demands a láser beam and scalpel.' The amendment itself would create a whole new process for definition and constitutional law.

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