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who hold religious beliefs the opportunity to exercise their beliefs in the form of prayer which, if voluntary in nature, could be accomplished without the involvement of the faculty, school administrators, or other students who do not wish to participate.

Now, as to possible congressional action, a constitutional amendment which would reverse the limitation of the Supreme Court on the exercise of religion is one way for the Congress to proceed. Obviously, that is the approach on which we will be focusing today. Some scholars argue, however, that limitations on court jurisdiction in the area of school prayer is the only sure way to address the Supreme Court's interpretation of the first amendment in this area. This approach can be defended on the basis of article III of the Constitution which states that the Court has appellate jurisdiction "with such exceptions and under such regulations as Congress shall make.” Congress has the constitutional authority to create and abolish inferior Federal courts and has plenary power over the appellate jurisdiction of the Supreme Court.

The proposed constitutional amendment which we are considering today would reinstate what is, in my opinion, the original intent of the Founding Fathers. It permits individual and group prayer in public schools and other Government-owned institutions. It makes absolutely clear that no person shall be required to participate in prayer. It is unfortunate, but apparently necessary, for Congress to resort to an amendment to the Constitution to reinstate the true meaning of the first amendment.


THE UNITED STATES Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress:

“ARTICLE “Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer.”.

Senator THURMOND. I would like to thank all of our distinguished witnesses for agreeing to testify before the committee today. I am certain that your testimony will be of great assistance to the committee in its consideration of this important measure.

Finally, I would like to thank my friend and colleague, Senator Denton, for agreeing to chair these hearings; and I commend him for his strong and abiding interest in this issue.

I am engaged as floor manager of the constitutional amendment that is now under consideration in the Senate, to balance the budget, and I appreciate Senator Denton agreeing to chair these hearings.

Senator Denton, if you will now take over, I will return to the floor.

(Senator Denton assumed the Chair.)

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Senator DENTON. Thank you very much, Mr. Chairman. I want to express my appreciation to you, as well as my admiration-my appreciation for the privilege of being requested to chair this hearing. I want to welcome my Democratic colleagues, and friends, Senators Metzenbaum and DeConcini, and to welcome all those present and thank our witnesses for coming here today to testify on President Reagan's proposed constitutional amendment to allow voluntary prayer in public schools and institutions.

Other members of the Judiciary Committee and I anticipate early Senate action on this measure. I believe this hearing will help us understand the constitutional and religious issues involved in the consideration of the amendment or any similar measure. My colleagues and I will listen closely and examine carefully the testimony offered today; we will carefully weigh the efficacy and wisdom of enacting the proposal that the President has put forward. That proposal is laid out in two sentences, and I quote them:

Nothing in this constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States, or by any State, to participate in prayer.

At this time I would like to welcome Senators Helms and Hatfield.

Would you gentlemen care to be at the witness table or where you are, at your discretion?

Senator METZENBAUM. Would the Chairman acknowledge the presence of some Democrats?

Senator DENTON. Yes, sir, I didn't make an opening statement, but—I did acknowledge you already, sir. If you wish to make an opening statement before our witnesses give theirs, please proceed.

Senator METZENBAUM. I do not come here with any formal opening statement, and I am not going to be able to stay here because I am due to testify before another committee. But I came in order that I might express my concern about what I consider to be the constant effort to erode the Constitution of the United States. I see it on the floor of the Senate, I hear proposals to deny the Supreme Court and the Court's jurisdiction in connection with certain controversial issues, and now we have here a new proposal, which is not actually new, but another proposal that certainly would do violence to the time-honored recognition of separation of church and state.

It's a very controversial kind of proposal, a particularly emotional one. Politically, it's not a very desirable one to speak out about. But the facts are that there also are some issues of conscience, and to me this is an issue of conscience.

It is very easy to wave the flag and it is also very easy to be moralistic and to emphasize our religiosity. It is very difficult at times to speak out for the Bill of Rights, because, as some have indicated on previous occasions, they probably couldn't be passed if you were to take a Gallup poll or a Harris poll at the present time.

But that is really not the issue.

The issue really has to do with the individual liberty of children in schools, and has to do with this long-recognized determination, that religion and the state will not be combined in our public institutions. A matter of this kind is a very challenging one for all of us

who hold political office or offer ourselves as candidates, because I don't doubt the fact that the polls indicate that the American people say, yes, that's great. But as I think one of the early witnesses will state, "you don't create morality by having a prayer in the school.” That is a paraphrasing but I think it captures what he is stating

It certainly does impact upon the right of that child, the embarrassment that comes about when he or she is called upon to join his or her fellow students in a prayer which very well may not be of that child's choosing.

I respect the President and those who support this amendment, but I have greater respect for the Constitution of the United States, and I believe it is they against the Constitution that is the issue before us. It is not an easy issue, but it is one that I don't believe serves our Nation's interest to change the thrust of our constitutional prohibitions that were there from the very inception.

Thank you.

Senator DENTON. Thank you, Senator Metzenbaum. Senator DeConcini, would you care to make an opening statement?

Senator DECONCINI. Mr. Chairman, thank you very much. Let me compliment you, Mr. Chairman, and the chairman of the Judiciary Committee, for holding these hearings. I think the Senator from Ohio is certainly correct that we need to move very cautiously on constitutional amendments in general. I regret that I cannot be here through the balance of the hearing, because I am managing Senate Joint Resolution 58, the constitutional amendment to balance the budget, for the Democratic side of the aisle.

This is a very important subject, and I have consistently supported voluntary prayer. I will review the testimony given here by proponents and opponents and neutral parties, if there are such, to question the voluntariness of this amendment and how it would be implemented and interpreted.

I look forward, Mr. Chairman, to the remainder of these hearings. I think it is vital that we address this problem. I am not afraid to address constitutional matters at all. I think it is part of the obligation and responsibility of Congress to look at these things head on and to find a consensus, and if there is justification for constitutional amendments, that is our duty; we ought not to shy away, like something that is sitting on the stove for hours and is so hot that we cannot touch it. Sure, it's nice to have these things go away and not be confronted with social issues and issues that do deal with the fundamental rights of individuals of our country. However, one of the responsibilities of public office is not to be frightened to address these issues but to listen, study, and make some determinations and ultimately cast a vote for what our conscience and constituents may call.

So I thank you, Mr. Chairman.

Senator DENTON. Thank you, Senator DeConcini. I share your and Senator Metzenbaum's caution in approaching the issue of a possible constitutional amendment. I will, as you appear to do, withhold my own present views regarding this subject until after we have heard from our witnesses. I daresay there will be sufficient opportunity for us to disclose our opinions on this issue as we proceed.

We have two extremely distinguished Senators who wish to testify this morning, and, in observing the convention, we will ask them to precede the other witnesses. I will ask Senator Hatfield and Senator Helms, if they care to sit at this table, or sit where they are, as they wish.

Senator Hatfield and Senator Helms, I will defer to the senior Senator and, with Senator Helms' acquiescence, request Senator Hatfield to proceed with his statement.

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THE STATE OF OREGON Senator HATFIELD. Thank you very much, Mr. Chairman, Senator DeConcini.

I am very appreciative of the opportunity to be here to express a few thoughts this morning on this very important issue that confronts this committee, and I am delighted to be here in company with my colleague from North Carolina, Senator Helms.

Mr. Chairman, in 1962 the Supreme Court invalidated a nondenominational prayer that had been written by the New York Board of Regents and approved by local school boards. By imposing a watered-down prayer on young students, the New York Regents adopted a useless gesture that was neither spiritual nor prayer.

Since that decision, the Supreme Court's ruling has been blamed for the deteriorating quality of public education, for the breakdown of the American family, for the decay in moral principles and abdication of governmental institutions to the norm of secular humanism. The school prayer decision has served as a symbol for all that is wrong in America. Prayer amendments to the U.S. Constitution, legislative initiatives, and even attempts to remove the jurisdiction of the U.S. Supreme Court have been vigorously pursued in the Congress. Most recently, President Reagan submitted his proposed constitutional amendment which would allow voluntary prayer in public schools.

Mr. Chairman, I strongly believe that this Nation needs to have a spiritual renaissance, one that begins in the hearts and the minds of individuals and works its way through our churches, schools, and public institutions. The first amendment to the U.S. Constitution is a limitation on the power of government to promote, establish, or discourage religion, but it sets no limit on privately initiated prayer, observances of religious customs, or political action that stems from moral beliefs. Instead of concentrating our attention on initiatives like a school prayer amendment, which I oppose, I would urge my colleagues to devote their energies to rooting out ridiculous barriers that have been erected to forbid voluntary meetings of students who seek to meet and pray in nondisruptive ways.

Let me give you two examples that demonstrate the problems that vibrant, believing students are facing across the country, and I believe abridges their constitutional rights under the first amendment.

At Guilderland High School in New York, Christian students sought and have been denied the right to meet before classes for prayer. The meetings were voluntary, and required no school an

nouncements or sponsorship. A Federal district court and appeals court have upheld the school board's refusal to allow the group to meet. This is the case of Brandon v. Guilderland Control School District, 635 F. 2d 971-so on, with the citation.

The second example is in Lubbock, Tex. The school board drafted a careful policy that accommodated student-initiated religious activity on an equal basis with other student groups in the use of school facilities for meetings before and after school. The U.S. Court of Appeals for the Fifth Circuit struck down this school board policy and forced a total ban on voluntary, student-initiated religious activity. That is Lubbock Civil Liberties Union v. Lubbock Independent School District.

Mr. Chairman, it is unduly restrictive actions like these, in Lubbock and Guilderland High School, to which the Congress should devote its attention. By chilling sincere efforts to pray for God's grace and forgiveness in voluntary meetings that do not disrupt the academic functions of a public school, we do far more damage to the Nation's moral fiber than through any Supreme Court decision that invalidates a routine, formalistic, and spiritually bankrupt prayer that the New York Regents drafted in the 1960's.

Because of these concerns, I asked the Christian Legal Society to provide me with a legal memorandum outlining the problems that have developed in restricting the religious freedom which may be enjoyed by students on public campuses. The Christian Legal Society has done some extraordinary work in researching, litigating, and advocating on behalf of religious freedom. I would like to have the committee consider the Christian Legal Society memorandum and recommendations for legislative initiatives as a realistic alternative to the school prayer amendment.

One last word. Mr. Chairman, we have venerated in this country of ours the right of free speech in our public school system by limiting a free exchange of ideas. The mutual exchange of ideas, in the pursuit of truth, is one of the most fundamental instruments of learning. Mr. Chairman, when we begin to put a content restriction on that pursuit of truth and knowledge in our public schools and allow any kind of discussion, except religious, we are doing violence to our constitutional right in the first amendment. That is why I am here this morning, on behalf of the freedom of speech. Once we create that forum, we should maintain content neutrality on the subject matter that is pursued in those educational experiences. Once we establish a forum for student clubs, and student activities that can be organized for political purposes, for social purposes, or any other purpose, but put limits on meetings for religious purposes, we are denying the right of free speech.

So I am saying to you this morning, let us set aside what I believe is the wrong approach, of a constitutional amendment, and pursue through legislative initiative the opportunities open to us to correct these wrong interpretations and these violations by the lower courts of our country. In my view these decisions are doing violence to the freedom of speech guaranteed by the first amendment.

[The following memorandum, submitted by Senator Hatfield, follows:

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