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first amendment and establishing secularism as the national religion. We are creating a situation in the public schools of this country in which you cannot in any way, shape, or form have any positive reference to traditional Judeo-Christian values or theism, a school must be purely secular in terms of its perspective. Secularism, however, is a religion in the sense that it is a way of looking at the nature of man, a naturalistic, materialistic way, and once established it would amount to a national religion. And the Supreme Court has been imposing it despite the clear purpose of the first amendment, which was that we not have a national religion.

I think this amendment has prophylactic value in the sense that, if it isn't as bad as I am suggesting it is, what it would do is clear up and prevent the courts henceforth from intruding into this area. And it would certainly clear up the chilling effect problem, and it would certainly clear up any misunderstanding coming out of Engel v. Vitale. A constitutional amendment, clearly, for those who want to do something about the problem, I would submit, is the way it seems upon which everyone could agree, because some will say, "Well, we don't like to withdraw the jurisdiction of the courts, we think that is a bad practice, even though the power is there, and so on and so forth.

It seems to me that if one really wants to do something about the problem, it should be either by statute or constitutional amendment; everything else would have no legal authority, including joint resolutions of the Congress.

Mr. Neal. Well, you are perfectly correct a concurrent resolution does not have the effect of law. I do think, though, that it would clarify the law as it exists now, and I think the law as it exists now would allow, the schools to establish periods of silence, and certainly does not prohibit voluntary prayer.

And I guess my own concern is that we might go too far, I guess-that is my basic concern-in the area of somehow getting the State into the business of establishing religion which I think is clearly prohibited by the Constitution. The province of establishing religion, it seems to me, ought to be the home and the church. Religious instruction primarily should be the responsibility of the home and the church, and school teachers or school administrators aren't trained theologians, and elected State officials aren't trained theologians, and I just don't think that they have any business writing prayers. I don't think you do either-I am not suggesting that; I am just suggesting that I am not at all sure that we need-in fact, I think my inclination would be to think that we do not need a constitutional amendment, nor would we need a limitation on the power of the courts to clear up what I think is a very bad misconception of what current law says. And that is the reason for my resolution

I think it would do the job. I am not absolutely certain, but I would say that it might be worth a try.

Senator East. Well, I think on the resolution approach-again getting back to the question of constitutional authority-when you say it would be worth giving it a try, and I certainly appreciate your interest and desire to assist us in this subject, that it's clear that a resolution simply has no authority of law-that is just a fact of life; it would have no authority of law, so, hence, to me it's a very pale cosmetic kind of response. It would give us a false sense of security when in fact nothing had been done, except, as maybe we in the Congress are inclined to do from time to time, to create the appearance for public consumption that something has been done. I know you act out of genuine belief, but basically we wouldn't have done anything except to pass a resolution that had no force of law, and was merely an expression of opinion as to what the Constitution provides.

Certainly there isn't a constitutional scholar in the land that for a moment would suggest that a concurrent resolution of Congress is binding in law.

Mr. Neal. I think that the effect of my concurrent resolution would be to clarify current law, and I think that the American public, the local school boards, the courts, would pay some attention to it. I am not absolutely certain of it-and I guess my own opinion would be that it would be worth a try, that it would be a lesser step, it would certainly in terms of getting something done in this area be much quicker. If you were to agree, if your committee were to agree, I believe we could pass this resolution in this Congress, I believe it would sail through the House of Representatives. We could then observe the effect. A constitutional amendment, on the other hand, would take some time to wind its way through the States. And if one of the interests is getting this cleared up in a hurry, I think our resolution might be the best approach.

Senator East. But I think in the rush, we would have to concede we weren't doing anything that would have the force of law. Passing a resolution would merely create the illusion that we had done something when in fact we hadn't, and hence would delay genuinely effective action, action like withdrawing the jurisdiction of the Court or amending the Constitution. I would submit, moreover, for those wishing to clarify that voluntary prayer is not precluded, that we all ought, at least, be able to agree on the latter remedy. I mean, if we agree on the goal, passing an amendment is certainly an appropriate remedy. One can't quarrel that this is a legitimate approach to take.

But, in any case, I do certainly want to thank you very much for coming, and for your eloquent statement and your contribution to the dialog here. I know the Senate Judiciary Committee will want to give your thoughts very serious consideration.

Mr. NEAL. I thank my distinguished colleague for his patience in allowing me to-

Senator East. Well, it's a pleasure to have you; we always get great wisdom from North Carolina representatives.

Mr. Neal. Well, not much wisdom from this quarter, but I thank the gentleman anyway.

Senator East. Thank you, sir, it's a pleasure to have you.

Because of a slight emergency that has come up, I am going to have to recess this hearing for about 15 minutes, and I shall be back as quickly as I can, all right? I am sorry, Mr. Attorney General. It's great to have you with us, but can you give us that length of time, I hope?

[The committee recessed at 11 a.m. and reconvened at 11:52 a.m.) Senator East. If the hearing will please come to order, we shall stand convened again and proceed with the testimony and comments of the Deputy Attorney General of the United States, Mr. Schmults. We are very honored to have him here with us this morning. I might note as a personal aside I had the pleasure of going through officer candidate school with him in the Marine Corps some few years ago, and always admired his work. I think it is a great credit to this administration that they have been able to recruit a man of his talent and ability. He already had a distinguished record of public service in and out of government, and was a practicing attorney before this administration recruited him. He is one of a group of very able and talented people down in the Justice Department, and I appreciate his taking the time to join us this morning. I wish to apologize to him and the rest that we had this delay. We had two votes while I was over there, and these interruptions are time consuming.

But, we are now back on the track, and I wish to welcome you, Mr. Schmults. I appreciate your coming, and, since I know you have got many pressing matters to take care of, I certainly will not make you linger.

If you would like to make your statement-if you wish to do it extemporaneously you may-as concisely and briefly as you can, it would be helpful. I don't wish to cut you short, but anything that is written, as you know, can be made a part of the public record.



Mr. SCHMULTS. Thank you, Senator East, and I appreciate your kind words. I have with me here today on my right Bruce Fein, who is the Associate Deputy Attorney General, and has helped me with this constitutional amendment matter.

Mr. Chairman, I am not sure my statement lends itself to an easy summary. I have the time to read it. If you want to save time, I am happy to submit it for the record. On the other hand, I do have time to go through it, if you desire, and I really leave that up to you.

Senator East. Well, again, I suppose we will spend more time doing this than maybe if you just read the statement, but since all written material is made part of the record, I like to encourage witnesses, if they are so disposed, to summarize and state their remarks extemporaneously, to the extent that they can, or at least to quote sparingly. I can appreciate that since you represent the administration, you might feel a bit uneasy and awkward doing that because you want to make sure that the record is clear and precise. I yield to your judgment on that. We do have another witness here this morning plus a panel, and, unfortunately, because of the Senate business over here we have been thrown behind a bit, so I was simply trying to move through so that everyone would get an opportunity to be heard.

Mr. SCHMULTS. Well, let me go through this, then, as quickly as I can.

Senator East. All right.

Mr. SCHMULTS. I am pleased to appear here today on behalf of the administration to support Senate Joint Resolution 199, a resolution proposed by the administration and introduced in the Senate by Chairman Thurmond and Senator Hatch. This resolution proposes an amendment to the Constitution to restore the right 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 work toward passage this session so that the States can begin the process of ratification before the end of the year.

In my statement I will explain why this amendment is a sound and necessary solution to the problems resulting from the prohibition of prayer in our public schools and institutions. Mr. Chairman, I would also like to submit for the record a copy of the administration's analysis of this amendment, and I ask that it be printed together with my statement.

Senator East. It will be.

Mr. SCHMULTS. 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.

In Engel v. Vitale, the Court embraced an interpretation of the first amendment that prohibited recitation of the New York State Regents' prayer in the public schools. Although it was clear that students were not required to participate in the prayer, the Court determined that State sponsorship and endorsement of a particular prayer violated the amendment's proscription against an establishment of religion. In the Schempp case, the Court struck down Pennsylvania and Maryland laws requiring that public schools begin each day with readings, without comment, from the Bible. Although the State's practices furthered secular purposes and excused unwilling students from participation, the Court found them to violate the establishment clause. Emphasizing the strict separation between church and state adopted in its previous constructions of the first amendment, the Court concluded that the establishment clause precluded the Government from favoring religion as against nonbelievers.

The prohibition against favoring religion as against nonbelievers, some have argued, would appear to preclude any action by the States or the 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.

In the years following the Engel and Schempp cases, the courts have increasingly restricted the States from incorporating religious observances into the daily schedule of students in public schools. In one case, for example, a school principal's order forbidding kinder

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garten students from saying grace before meals on their own initiative 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 1-minute prayer or meditation at the start of the school day.

The principles established in Engel and Schempp have been extended recently to bar the accommodation or even toleration of students' desire to pray on school property even outside regular class hours. For example, one 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. Other courts have forbidden voluntary prayer meetings, even the reading of prayers from the Congressional Record.

Even the venerable tradition of having chaplains open legislative sessions with a prayer, a tradition going back before the First Congress and widely followed in the States, is now under serious attack in the courts. One Federal court of appeals has already ruled that it is unconstitutional for a State legislature to have a chaplain to open its sessions with a prayer. A similar challenge to chaplains in Congress is now pending.

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 pressing need for this amendment is apparent from numerous considerations.

In reversing the two principal Supreme Court decisions foreclosing prayer in public schools, 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. The administration's analysis of the proposed amendment demonstrates that the establishment clause was not intended to prohibit governmental references to or affirmations of belief in God. In discussing the scope of the establishment and free exercise clauses, Erwin N. Griswold, former dean of 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 that all traces of religion be kept out of any sort of public activity is sheer invention." And Justice Story concluded that "a[n) attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation” at the time the first amendment was drafted.

Second, this amendment 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 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

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