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proudest tradition

a freedom that has itself protected and fostered

religious faith.

Religion does not need, and should not have, the sponsorship or

support of government.

More broadly, we insist that religious practice

should never be made a matter of majority decision.

The faith of

Americans has been kept strong through the home and the church and

synagogue.

It will continue to be strong if it is kept free from

government intermeddling.

Joseph B. Robison
Marc D. Stern

Of Counsel

July 1982

Appendix A

We are distresseed by reports that President Reagan intends to call for a constitutional amendment to sanction prayers in public schools. The compelling arguments that have prompted the undersigned organizations to oppose that practice in the past are still valid. We have repeatedly pointed out (1) that the broad concepts of freedom of religion and separation of church and state prohibit government agencies such as public schools from fostering religious practices or beliefs; (2) that experience teaches us that efforts to introduce religious practices into public schools generate the very interreligious tension and conflict that the First Amendment was designed to prevent; and (3) that it is impossible to devise a prayer that is acceptable to all groups and that any effort to do so trivializes prayer by robbing it of depth and meaning.

It is because of this trivialization that we are convinced that daily rote recitation of a school-sponsored prayer contributes nothing to the advancement of religion. On the other hand, in a diverse and pluralistic society, prayer which does contain depth and meaning for some will inevitably be offensive to many others.

It is no answer to these considerations to say that the prayers will be "voluntary." To a child in a classroom, no part of the school routine is voluntary. It cannot be made so by the cruel device of telling them that they are allowed to brand themselves as pariahs by leaving the room or by remaining conspicuously silent during the religious ceremony. Indeed, what actually happens when this unwise practice is followed is that at least some of the pupils depart from their parents' religious teachings because of the pressure from their teachers and peers to conform to the majority view. The Supreme Court decisions barring official prayer in public schools do not prevent children from offering whatever prayers are prompted by their consciences or the teachings of their parents. And 20 years of

experience shows that those decisions have not undermined America's religious faith.

On the contrary, they have stood as a reminder and symbol of the freedom of conscience that is America's proudest tradition -- a freedom that has itself protecteed and fostered religious faith.

Religion does not need, and should not have, the sponsorship or support of government. More broadly, we insist that religious practice should never be made a matter of majority decision. The faith of Americans has been kept strong through the home and the church and synagogue.

It will continue to be strong if it is kept free from government intermeddling.

Appendix B

OUR MOST PRECIOUS HERITAGE

Our Bill of Rights is America's most precious heritage. For a century and three-quarters it has spread the mantle of protection over persons of all faiths and creeds, political, cultural and religious.

Under our system, special responsibility for the interpretation and application of the Bill of Rights rests with the Supreme Court. In discharging this responsibility the Court has from time to time handed down decisions which have aroused considerable controversy. Some of the decisions have been subjected to strong citicism and even condemnation. There have, no doubt, been decisions which have been deemed by a majority of the American people to have been unwise, either in the conclusion reached by the Court or in the manner by which that conclusion was reached.

It may be that the Court's decisions against state-sponsored prayer in the public schools belong in this category. We are, nevertheless, convinced that it would be far wiser for our nation to accept the decisions than to amend the Bill of Rights in order to nullify them.

We recognize that the Constitution provides for its own amendment, and that no provision of it, including the Bill of Rights, is immune to repeal or alteration at the will of the people expressed through the medium of constitutional amendment. Yet, it is relevant to recall in this respect the concluding paragraph of Thomas Jefferson's great Virginia statute for Establishing Religious Freedom:

And though we well know that this assembly,
elected by the people for the ordinary
purposes of legislation only, have no power
to restrain the acts of succeeding asemblies,
constituted with powers equal to our own, and
that therefore to declare this act to be
irrevocable would be of no effect in law, yet
we are free to declare, and do declare, that
the rights hereby asserted are of the natural
rights of mankind, and that if any act shall
be hereafter passed to repeal the present, or
to narrow its operation, such act will be an
infringement of natural right."

American liberties have been secure in large measure because they have been guaranteed by a Bill of Rights which the American people have until now deemed practically unamendable. If now, for the first time, an amendment to "narrow its operation" is adopted, a precedent will have been established which may prove too easy to follow when other controversial decisions interpreting the Bill of Rights are handed down. In the past, the Court has construed the provisions against infringement of the free exercise of religion and of speech and assembly, or securing the privilege against self-incrimination, or requiring fair trial procedures, in a manner deemed by many at the time to be unduly restrictive of the proper powers of government.

It is certain that it will do so again in the future. If the first clause of the Bill of Rights, forbidding laws respecting an establishment of religion, should prove so easily susceptible to impairment by amendment, none of the succeeding clauses will be secure.

A grave responsibility rests upon the Congress in taking this "first experiment on our liberties." Whatever disagreements some may have with the Prayer decisions, we believe strongly that they do not justify this experiment. Accordingly, we urge that Congress approve no

to amend the First Amendment in order to overrule these decisions.

me asures

Senator DENTON. Thank you very much. The hearing is adjourned.

[Whereupon, at 1:28 p.m., the committee recessed to reconvene subject to the call of the Chair.]

PROPOSED CONSTITUTIONAL AMENDMENT TO

PERMIT VOLUNTARY PRAYER

WEDNESDAY, AUGUST 18, 1982

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met, pursuant to notice, at 10:10 a.m., in room 2228, of the Dirksen Senate Office Building, Hon. Strom Thurmond (chairman of the committee) presiding.

Present: Senators East, Specter, and Grassley.

Staff present: Eric Hultman, general counsel, full committee, and James McClellan, chief counsel to Subcommittee on Separation of Powers.

OPENING STATEMENT OF CHAIRMAN STROM THURMOND The CHAIRMAN. The committee will come to order. The committee continues this morning its consideration of Senate Joint Resolution 199, a proposed constitutional amendment to permit voluntary prayer in schools and other public institutions. We have a distinguished group of witnesses scheduled to appear today and their testimony on this important legislation will be of great help to the committee.

I regret that other Senate business will mean that I must leave the hearing early, but the able and distinguished chairman of the Subcommittee on the Separation of Powers, Senator East of North Carolina, has graciously agreed to chair the rest of the hearing this morning

Now, I believe our first witness this morning is Congressman Stephen L. Neal of the Fifth District of the State of North Carolina.

Congressman Neal, we are pleased to have you with us, and you may proceed. Do you

have a written statement? Mr. NEAL. I do, Mr. Chairman.

The CHAIRMAN. Would you like your entire statement to go in the record and summarize it, or do you wish to deliver it?

Mr. NEAL. It's a short statement, Mr. Chairman, and I would like to read it.

The CHAIRMAN. That would be fine, you may proceed. STATEMENT OF HON. STEPHEN L. NEAL, A U.S. REPRESENTATIVE

FROM THE STATE OF NORTH CAROLINA Mr. Neal. Mr. Chairman, I appreciate the opportunity to appear before the committee to discuss the issue of voluntary prayer in the

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