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forth in Engel v. Vitale and Abington School District v.

Schempp reflects those values and institutions best designed to promote both religion and liberty in this country. Because I believe profoundly in my religious faith, and in the absolute necessity of the government not imposing any religious faith, including my own, on anyone else, I oppose any attempt

to tamper with values that underlie the Establishment clause.

No other country has our commitment to the concept of separation

of church and state.

There is no country on earth that

enjoys the religious pluralism and the religious freedom

that has existed here, and there is no country which has

been as free from religious strife as has been ours.


happy confluence of constitutional principles and religious

liberty is no accident.

There are countries where established religions tolerate

other religions;

there are countries which are hostile

to religions and where religions exist, if at all, by the

sufferance of a despotic government and at great peril to

those who would profess and practice their faith.

To those

of you on this committee, who share with me

a religious faith,

even if not my own, I ask whether you would exchange place in

this country with citizens of any other country where

principles of our first Amendment do not. prevail.

The proposal you have before you does not deal with a fringe

interpretation of the Establishment Clause.

It deals not

with questions of remedial reading taught to parochial school

students, nor to the issue whether the singing of Christmas

Carols is or is not a religious exercise.

It does not concern

textbooks or mathematics courses taught in religious schools.

Nor does it even purport to establish a religious exercise

which is non-denominational, perhaps because sponsors of the

school prayer amendment realize that there is no such thing

as a non-denominational prayer.

No, this proposed amendment

does not deal with peripheral questions under the Establish

ment Clause. This proposed amendment strikes at the very core of constitutional values that underlie our most precious guarantee of religious and political freedom. This amendment permits an avowedly religious exercise a prayer of whatever

nature may be approved by the majority in any school district

in the country. Whether it be Mormon prayers in Ut ah, Jewish
prayers in Brooklyn, Catholic prayers in Boston, Baptist
prayers in Georgia, Congrega tionalist prayers in parts of
New England, religious prayers are to be permittted by this

proposed amendment, subject only to the limitation that a

person shall not be required to participate in prayer.

Scholars may disagree over the motivation of the Founders in

prohibiting religious establishments.

I happen to believe

that the Supreme Court's interpretation of that history is


But even those who may disagree with the Court's

view that all aid to religion is prohibited concede that


government is not permitted to discriminate among religious

Even Justice Stewart, the sole dissenter in Schempp, agreed that school officials could not favor one religion over another. Most Americans conceive it as settled doctrine

that religion is a private affair and that government may

not favor one faith or the other.

In my view, then, this

proposal is not a conservative one, but rather a profoundly
radical alteration of a basic precept of American life, the
required neutrality of government among religious faiths.
It will undo one of the proudest achievements of this re-


It is too often assumed that the free exercise clause is
the prime guarantee of religious liberty, that the Estab-
lishment Clause is, somehow, hostile to religion,
designed to keep religion from becoming too powerful. This

represents a profound misreading of history and a lack of

appreciation of the Establishment clause as itself a prime

guarantor of religious liberty.

There cannot be true re

ligious liberty - the right of a person freely to choose

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government, which represents all the people, has no business

generating the pressure of any religious belief on any in

dividual citizen.

The First Amendment command that govern

ment make no law respecting an establishment of religion,

which this proposed amendment would alter in a most funda

mental sense, is an essential feature of a constitutional

structure which guarantees that persons can conduct their re

ligious practices, and express their religious beliefs, free

from pressure of government conformity.

What is different about this country

what distinguishes it

from countries like England or Canada where establishments

are permitted

is that in matters of faith we are all equal.

I do not wish to be a religious stranger in my own country,

and I do not wish any member of any faith to be a stranger in

our midst.

If there is an official prayer, of one religious

denomination, everyone else is a stranger.

Catholics in Jewish

neighborhoods, or Jews in Catholic neighborhoods, have the right

to assume that in this country there are no favorite religions.

Take that away, and they become fearful minorities, practicing

their faith because of the generosity of the majority.


then seek to advance their beliefs, to form coalitions, to

protect their religious turf, lest they lose their right to


That is the kind of religious strife which the

Founders sought to avoid. That concern was specifically articulated by James Madison when he wrote his remarkable

document, the Memorial and Remonstrance against

Religious Assessments, which was the intellectual forerunner

to the Establishment Clause.

There is no merit to the claim that religious freedom is

adequately protected by the language in this proposed amend

ment which prohibits requiring persons to participate in prayer.

Stamping the imprimatur of government on any religious ex

ercise is coercive.

One does not solve the problem of coercion

by stating that the person does not have to participate in


As religious groups opposing this amendment have

stated forcefully in their testimony, the evil comes from

being part of a minority which does not participate in a cere

mony which the government has established as the majority's will.

Nor is there merit to the claim, raised in almost every school

prayer case, that the prohibition on publicly recited or

officially chosen prayer violates the free exercise rights

of those children who wish to pray.

The Supreme Court has

never held that students may not, on their own, recite

prayers, say grace before or after meals, silently pray at

the start of the day, or before exams, or before football


Moreover, I think that former Chief Judge Irving

Kaufman of the Second Circuit Court of Appeals was clearly

correct in suggesting, in Brandon v.

Board of Education,

that, if a student can show that his or her religion requires

prayer at set times, he or she must be permitted to do so.
What is left of this free exercise claim, therefore, is
that the clause somehow demands that students and teachers
be permitted to invoke the authority of the state to promote
their religion vis-à-vis others. That is not free exercise;

it is precisely the evil which the Establishment clause seeks

to forbid, and it is precisely that which this amendment

seeks to undo.

Let us think together for a moment about the role a written
Constitution plays in a democratic society. The study of

the American Constitution has been the principal focus of my professional life. The Constitution, if it does nothing

else, must place certain limits on majority will.

It is a

profound truism that ours is a government of limited powers.

To protect the rights of the states, Congress may not leg

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tion, imposed broad limitations on the power of the federal

government. Constitutional scholars have debated at length particularly in recent years, the issue of the appropriate

limitations which the Constitution, through the courts, may

impose on democratic majorities.

But I believe that virtually

all constitutional scholars would agree that if there be one necessary limitation on majority will, it should be in those areas covered by the First Amendment, namely freedom of

speech, assembly, petition, expression.

These represent

the basic fabric of democratic structure, of representative


They should not be impaired merely because a

majority, at any particular moment, wishes to impose its


Religious freedom is not simply a peripheral right placed in

the First Amendment by accident.

No portion of the First

Amendment concerned James Madison more than the religion


The founders

recognized that political freedom and

religious freedom always go hand-in-hand.

Totalitarian governments

either establish one religion, do away with religion, or subvert


The reason is that freedom of religion as we know

it in this country, which includes the right to practice one's religion free from any imposed official faith, carries with it

the recognition that there is an authority that the government

cannot control. It is not surprising, upon reflection, that one of the demands of solidarity in Poland was that the Catholic

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