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The Upanishad, or The Book of Mormon, etc., etc., merely italicized

the implicit involvement of the school system and of its teachers in

the sectarian processes of invidious preference.

In brief, there is a pretense in the amendment that it is simultaneously possible for public authority to determine the content of

religious exercises to be conducted under its auspices and yet remain

"neutral" among all sects otherwise entitled to equal protection con

sistent with the free exercise clause.

The fatuousness of that

assumption is at the heart of the Supreme Court's own decisions to the

contrary.

It is also at the heart of the first amendment which

withdraws from government the prerogative to make such dangerous, divisive, and demoralizing choices.

In Engel, Mr. Justice Black very soundly observed:
[I]t is no part of the business of government to compose
official prayers for any group of the American people to
recite as part of a religious program carried on by
government.

And in Schempp, Mr. Justice Goldberg noted, with Mr. Justice Harlan's complete concurrence:

The practices here involved do not fall within any sensible
or acceptable concept of compelled or permitted accommodation
and involve the state so significantly and directly in the
realm of the sectarian as to give rise to those very divisive
influences and inhibitions of freedom which both religion
clauses of the First Amendment preclude. [The pervasive
religiosity and direct governmental involvement inherent in
the prescription of prayer and Bible reading in the public
schools, during and as part of the curricular day, involving
young impressionable children whose school attendance is stat-
utorily compelled, and utilizing the prestige, power, and
influence of school administration, staff, and authority, can-
not realistically be termed simply accommodation, and must
fall within the interdiction of the First Amendment.

These observations were absolutely sound when they were written. They

are equally correct today. Respectfully, I am amazed that this

Congress would seriously consider the deliberate insertion of sectarian

religious devotional exercises in all public institutions as a proper

and desirable object of an amendment to our Constitution.

But this amendment will also do more than sponsor acrimony and

sectarian competition at levels of local government now spared that

distress.

It must necessarily invite equivalent rivalries among units

of state government and, finally, between the national government and

the several states.

That it would do so within a state can readily be

forecast, as follows.

The amendment and its accompanying analysis are clear in asserting

that no state need provide for any particular religious services in

its public schools or public institutions. Rather, it is, in the

first instance, within the determination of each state (and each

state's constitution) as to what practices, if any, shall be provided.

Suppose, then, that in the local school district of a state (which

state is dominated by a "conventional" religious majority), the local

board first prescribes an exclusive, daily prayer that is regarded as

both unwise and dangerous at the state legislative level?

А

"prayer" requiring that one prostrate oneself on the floor, for

instance, facing east; a prayer rendering an appeal not to "God" but to "Allah;" a prayer not begging blessings on one's teachers, but

strength for Islam as the one, true faith? The amendment contemplates

the prerogative of each "local community" to fashion this kind of

choice in the first instnace. And, again, the choice is not to be

faulted merely becuase it is (necessarily) sectarian. But, of course,

a different sentiment prevailing in the state's legislature, the state may enact a prohibition against such an (unwise?) prayer; and similarly, as in Engel, it may draft a completely different prayer that must be used, if any is to be used, in lieu of the local preference.

The rich, divisive possibilities do not end here. Congress, the

amendment provides, may formulate the policy (and thus the range,

character, and content) of religious recitation to be employed devo

tionally and exclusively, in such "public institutions" as are subject

to its jurisdiction. Once that power is invested in Congress, there is no restriction upon Congress's recommending the national policy for such states and local communities as themselves are willing to adopt it. Additionally, there is no constitutional barrier against a deci

sion by Congress to condition the availability of federal financial

assistance upon each state's willingness to conform to the national

policy respecting group prayer.

In brief, if this Congress believes that a certain prayer is a

good and desirable thing for state universities and state public

schools to provide, it may (with uniform precedental support from a very long series of Supreme Court opinions) restrict eligibility for

its assistance to such state universities and state public schools as

can and will provide for such "voluntary group prayer" as Congress believes to be in the national interest. There is no novelty

or improbability in this (unanticipated?) use of congressional power

if this amendment passes. A state need not now provide for any course

providing mlitary training in its state universities; but it is famil

iar learning that a state that does not see fit to provide for ROTC

courses agreeable to federally-described standards disables its state

universities from remaining eligible for significant amounts of federal

fiscal assistance. We have seen the formula at work with respect to

public schools as well as all other state institutions.

The modifica

tion of state and local laws, to provide for such "affiramtive

action," or such assistance to the handicapped, or such conditions of

employment as Congress believes appropriate for the general welfare,

in the spending of federal monies, we know can be compelled by

Congress. The established theory is that, consistent with the tenth

amendment Congress cannot direct these changes obtusely.

It may,

however, confine the availability of federal largesse to such states

as will in fact "voluntarily" alter their laws (including where

necessary their constitutions) to permit compliance with the national

policy. So it follows, if this amendment becomes part of our fun

damental law.

A further erosion of federalism is contemplated here,

enabling this Congress to withhold assistance to states that may, under their own constitutions, want no part of providing for

"voluntary prayer" in the operation of its public schools or other

public institutions.

This proposed amendment thus does in fact install the first seeds

of theocracy into our government institutions.

Under the false aus

pices of religious solicitude, it contemplates all levels of govern

ment becoming involved in the determination and prescription of reli

gious exercises in tax-financed, compulsory public education and in

any other public li.e., government) institution. It supposes a benign

harmlessness about what is involved here.

It imagines that spirited

discussion and moderate democratic institutions can work out congenial prayers, acceptable scriptural readings, and an agreeable liturgy of a

mild, uncontroversial, state-sponsored religion.

It yields to the

frustration of various sects that believe they have a missionary pur

pose to harness the power of secular government in the propagation of

(their) faith.

And our Supreme Court has rendered itself a scapegoat

of these interests by clinging so obstinately to its view that this

is not the nature of our constitution:

that the assimilation of reli

gion within the state threatens the civil polity even as it begins,

inevitably, to degrade religion as well. Ily belief both professionally

and as a citizen is that the Court's vision is vastly more clear-eyed

and entirely more sound than what is proposed here.

I hope you will

not approve this amendment.

Senator SPECTER. Thank you very much, gentlemen, you have given us amendments, prepared statements, and as Dean Sandalow has said, it is specific policy and unlike the court, we will move it along

(Whereupon, at 5:03 p.m. the committee was adjourned.]

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refer to one of those positions as the "Story" view

and

the cther position as ihe"}', disonian" vicw.

Essentially, Justice Story maintained that he

Framers of the First Amendment intended to promote

generalized or nondenominational Christianity, while merely tolerating the religious activity of other

"non-Christian" sects.

James Madison, on the other

hand, insisted that the free exercise of one's

religion constituted an inalienable right that

government could regulate only when its own survival

would be "manifestly endangered" if it failed to

regulate the religious exercise in question.

Furthermore, while Madison rejected the Story view that the First Amendment implicitly recognized nondenominational Christianity as the national

religion, he did not advocate a strict separation

of Church and State.

Rather, he believed that

government could and should facilitate the free

exercise of religion even in the public sector, provided that the promotion of religious exercise

by government was effectuated in a nonpreferential

(469)

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