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on a Supreme Being. For example, references to God can be found in the Mayflower Compact of 1620, the Declaration of Independence, the Pledge of Allegiance, and the national anthem; on the Liberty Bell, the American seal, our legal tender, monuments such as the Tomb of the Unknown Soldier, the Washington Monument, and the Lincoln and Jefferson Memorials; and in the oath of office taken by Federal employees-including the President, all Federal judges and Members of Congress—and witnesses in judicial and legislative proceedings. American institutions have continued to reflect these religious beliefs as evidenced by the employment of chaplains in the legislatures and the Armed Forces, the proclamations and inaugural addresses made by almost every President, and the public recognition of Thanksgiving Day as a time set aside to express gratitude to a Supreme Being. Virtually all of the State constitutions refer to dependency on God. As the Supreme Court has stated: “We are a religious people whose institutions presuppose a Supreme Being."
Third, and closely related to the second point, 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 self-reflection 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.
Fourth, by prohibiting students' voluntary prayers before meals, periods of meditation before class, and student prayer meetings in school buildings outside of class hours, the courts' concern with the establishment clause has overshadowed the first amendment right of students to free exercise of religion. As Justice Stewart has stated: “there is involved in these cases a substantial free exercise claim on the part of those who affirmatively desire to have their children's school day open with the reading of passages from the Bible.” Although some may argue that those parents could pay to send their children to private or parochial schools, the Supreme Court has stated that: “[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.”
Fifth, the unintended but inevitable result of current judicial interpretations of the establishment clause is not State neutrality but a complete exclusion of religion which, in effect, is State discouragement of religion. The governmental neutrality mandated by the Supreme Court on matters of religion has proven in fact to be unachievable.
Finally, the amendment is needed because it would allow decisions of essentially local concern to be made by States and localities rather than the Federal judiciary. For over 170 years, school prayer issues were resolved at the State and local levels by the residents of the affected communities. Their choices regarding
school prayer reflected the desires and beliefs of the parents and children who were directly and substantially affected.
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 the Engel and Schempp cases were decided, that is, when prayers such as the regents' 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 amendment also would foreclose reliance upon the implied coercion theory advanced by the courts, which presumes that any group prayer by consenting students has a coercive effect upon the objecting students in violation of their right to free exercise of religion, and that therefore no prayer is constitutionally permissible. However, as discussed below, the proposed amendment expressly protects the right of objecting students not to participate in prayer. This provision is sufficient to protect the rights of those who do not wish to participate without denying to all others who desire to pray an opportunity to do so.
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. Group prayers could be led by teachers or students. Alternatively, if the school authorities decided not to take part in a group prayer, they would be free to accommodate the students' interest in individual or group prayer by permitting, for example, prayer meetings outside of class hours or student-initiated prayer at appropriate, nondisruptive times, such as a brief prayer at the start of class or grace before meals. School authorities could, of course, develop reasonable regulations governing the periods of prayer, in order to maintain proper school discipline.
If the school authorities choose to participate in a group prayer, the selection of the particular prayer-subject, of course, to the right of those not wishing to participate not to do so-would be left to the judgment of local communities, based on a consideration of such factors as the desires of parents, students and teachers and other community interests consistent with applicable State law. Thus, the proposed amendment would restore the practice maintained throughout most of this Nation's history, in which the determination of the appropriate circumstances of prayer was made by State and local authorities. The amendment does not limit the types of prayer that are constitutionally permissible and is not intended to afford a basis for intervention by Federal courts to determine whether or not particular prayers are appropriate for individuals or groups to recite. Because the proposed amendment merely would remove the bar of the establishment clause as construed by the Supreme Court, State laws regarding the availability of prayer in public schools would not be affected.
The amendment by its terms is not limited to public schools, and would apply to prayer in other public institutions as well. The intent of this language is to make the remedial provisions of this amendment coextensive with the reach of the first amendment's establishment clause as construed by the Supreme Court. Although most questions relating to public prayer arise in the context of public schools, the proposed amendment is drafted to apply to prayer in other public institutions, including prayers in legislatures.
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. Those persons who do not wish to participate in prayer may sit quietly, occupy themselves with other matters, or leave the room. Reasonable accommodation of this right not to participate in prayer must be made by the school or other public authorities. Thus, the exercise of the right to refrain from participating cannot be penalized or burdened.
The guarantee against required participation in prayer parallels and reaffirms the protection already afforded by the free exercise clause of the first amendment. Thus, the second sentence of the proposed amendment assures that students and others will never have to make a forced choice between their religious beliefs and participation in a State-sponsored prayer. Indeed, the second sentence of the proposed amendment provides greater protection than the free exercise clause, because a person desiring not to participate in prayer need not show a religious basis for his belief. Accordingly, there would be no need for an inquiry into the religious basis for a person's decision not to participate in prayer.
The fact that one or more students do not wish to participate in prayer, however, would not mean that none of the students would be allowed to pray. The provision forbidding required participation in prayer is intended to be sufficient to protect the interests of those students. As the Supreme Court stated with respect to the Pledge of Allegiance, “the refusal of these persons to participate in the ceremony does not interfere with or deny the rights of others to do so." This would be the proper rule to apply with respect to school prayer: persons who do not wish to participate in prayer should be excused or may remain silent, but that should not interfere with or deny the rights of others who do wish to participate.
For these reasons, 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 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 schoolchildren to do so as well.
Mr. Chairman, I shall be glad to answer any questions you or members of the committee might have.
Senator East. Thank you, Mr. Schmults. I would like to welcome my very able colleague from Pennsylvania, Senator Specter. We have heard from Congressman Neal, and then we were interrupted by a floor vote, and so we are trying to pick up the loose ends and move on. I have indicated to the witnesses here that we have quite a long menu. I am trying, in fairness to them and the realities of time, to move the hearings as quickly as we can.
Mr. Schmults, let me be brief. It would probably be no great secret that I do basically agree with the thrust of your remarks and analysis. I gather, not simply to ask a rhetorical question, I gather that the administration and the Justice Department feel that this constitutional amendment is the proper remedy and vehicle. What it would do would be to clarify that voluntary prayer, individual or group, in public schools is not prohibited by the Constitution, and, at the same time, to clarify, of course, that no person should be required to participate in any form of prayer. If prayer were required, it, obviously, then would no longer be voluntary. This is the proper vehicle because there is a problem created by Engel v. Vitale and its afterglow, and also, frankly, by some recent court interpretations.
The administration's position, then, again, is such that this is the proper vehicle-I gather you are answering that in the affirmative-and, second, that there is a legitimate and serious and substantive problem that warrants attention, since one does not lightly amend the Constitution of the United States.
Are you in the administration answering those two questions in the affirmative? I gather you are.
Mr. SCHMULTS. Yes, that's right. We think the advantage of a constitutional amendment is, one, it provides certainty, we believe clarity, and would restore the status of the law to what it was prior to 1962, and, indeed, to what it had been for 170 years, and that is to permit voluntary prayer in our public schools. The administration believes, this is consistent with American traditions and our religious heritage.
Senator East. All right, I thank you. Senator Specter.
Senator SPECTER. Yes, thank you very much, Mr. Chairman. It's nice to see you here, Mr. Schmults, I know how busy you are with the many responsibilities in the administration of the Department of Justice. I have just a few questions.
When you say that you seek certainty, I can certainly understand that. I note that in the Abington decision, Justice Brennan, in a concurring opinion, said that in his opinion there was no constitutional objection to the public schools observing “a moment of reverent silence," my question is, If it were certain that the Supreme Court would uphold the setting-aside of a period of time for a moment of reverent silence, which would presumably mean that children could pray or not, as they chose, would that satisfy the policy objectives which you seek through this constitutional amendment?
Mr. SCHMULTS. I don't believe it would. I think the Supreme Court might or might not decide that tomorrow. Obviously, Supreme Court decisions can be changed. It seems to the administra
tion that it is desirable to return our society to the legal posture we had prior to 1962, and to state very clearly in the Constitution that voluntary prayer in public schools is something that we should not discourage. I am not at all clear that Justice Brennan's observation in his concurring opinion would be found today by the Supreme Court not to violate the Constitution. Senator East had a discussion with a prior witness on the meaning of voluntary prayer, and the Congressman took the position that voluntary prayer was not barred by the Constitution. I must say I think that's a very complex question; it isn't at all clear to me that if the school sets aside some time, during the school day, a period for silent meditation with a teacher supervising that period, whether or not that is constitutional; indeed, I think there is good reason to believe that that is not constitutional, as interpreted by the Su
It seems to me that we ought to eliminate those questions. I agree that no constitutional amendment can eliminate all questions, but whether a prayer, whether silent meditation is permitted, or whether a teacher can lead the students in saying the Lord's Prayer-it seems to me that if we are going to deal with that issue, we ought to clear up as many of those questions as we can in a fair way for a longer period of time than might exist by virtue of one Supreme Court decision.
Senator SPECTER. Well, the objective of neutrality has been articulated by many as the desired goal. Let me take this opportunity to say that I have not made up my mind on this subject. I have been here, along with Senator East, for just a year and a half, and this issue has not come before the U.S. Senate in our short tenure here, and it is a very involved proposition, and I have an open mind on it.
But in reading some materials, many are looking for neutrality, so that those who wish to pray, can pray, so those who don't wish to pray are not under any compulsion to pray. And that appears to be the thrust of the amendment which you are proposing here today.
Mr. SCHMULTS. That's correct.
Senator SPECTER. Beyond Justice Brennan's concurring opinion in Abington, the New Hampshire Supreme Court has on two occasions advised the State legislature that statutes prescribing a period for silent meditation at the beginning of each school day would be constitutional, and there is one case, Gaines v. Anderson, a three-judge Federal court in Massachusetts upheld the constitutionality of the State statute prescribing a period of silence “for meditation or prayer" at the beginning of each school day, so that there is a fair amount of authority to suggest that in that neutral setting, that today such voluntary prayer would be constitutional.
Mr. SCHMULTS. Senator Specter, if I could add one point-in the analysis that I submitted for the record today on page 17, there is a reference to a Supreme Court decision that affirmed a lower-court decision striking down school board policy of permitting students, upon request and with their parents' consent, to participate in a 1minute prayer or meditation period at the start of each school day. I think that is very close to those cases that you have been citing.