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. This 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 Establishment 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 Utah, 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
correct. 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
sects. 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-
public.

It is too often assumed that the free exercise clause is the prime guarantee of religious liberty, that the Establishment 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

if the

those forms of religious belief and expression which represent that individual's innermost expression of faith government is permitted to display favoritism to one faith or the other. It is our constitutional theory that the government, which represents all the people, has no business generating the pressure of any religious belief on any individual citizen. The First Amendment command that government make no law respecting an establishment of religion, which this proposed amendment would alter in a most fundamental sense, is an essential feature of a constitutional structure which guarantees that persons can conduct their religious 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. Persons then seek to advance their beliefs, to form coalitions, to protect their religious turf, lest they lose their right to worship. 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 amendment which prohibits requiring persons to participate in prayer. Stamping the imprimatur of government on any religious exercise is coercive. One does not solve the problem of coercion by stating that the person does not have to participate in prayer. 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 ceremony 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 games. 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-
islate in certain areas. And to protect certain rights of
the people, the original Constitution limited the
powers of both Congress and the states. The Bill of
Rights,whose promised existence was necessary for ratifica-
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
government. They should not be impaired merely because a
majority, at any particular moment, wishes to impose its

will.

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 clauses. 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 religion. 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