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 consistent 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 And in Schempp, Mr. Justice Goldberg noted, with Mr. Justice Harlan's complete concurrence: The practices here involved do not fall within any sensible 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? A "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 devotionally 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 familiar 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 modification 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 fundamental 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 auspices of religious solicitude, it contemplates all levels of government becoming involved in the determination and prescription of religious exercises in tax-financed, compulsory public education and in any other public (i.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 purpose 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 religion within the state threatens the civil polity even as it begins, inevitably, to degrade religion as well. My 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.] APPENDIX ADDITIONAL STATEMENT FOR THE RECORD STATEMENT OF ROONEY K. SMITH I am deeply conce a with the issue of prayer in public schools. My research in this area has led me to conclule that there were two predominant positions ten by the hors of the First mendment, with regard to the aning and intent of the religion clauses of that Andent. As a matter of legitimacy, I believe that, in rendering its deel 'cas in the Church-State area, the Supic e Const hould romain within the parameters of at least one of those historical vicws. For the purp s of this latent, I will refer to one of those positions as the "Story" view and the other position as the "disonian" view. Essentially, Justice Story maintained that the 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) |