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amendment by prohibiting Government influence on the form or content of any prayer or other religious activity.

Let me elaborate on our reasons for these changes.

The 22-word prayer struck down as a violation of the Establishment clause in the Engel case reads as follows: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.'

That kind of prayer, routinely repeated every schoolday, is far removed from the kind of meaningful religious expression that should be permitted in the public schools. Hence, our expansion in the proposed amendment to include "other religious activity.”

Our version of the amendment would, first, treat persons of every belief or unbelief equally by prohibiting the Government from influencing the form or content of the religious activity, and, second, overrule McCollum to the extent that case was based on the physical location of the program of released time religious instruction in the public schools.

I would like to expand on these two points in terms of Zorach and the McCollum case.

In Zorach, released time programs of religious instruction off the school premises were held constitutional. The only factual difference of any consequence between Zorach and McCollum, which struck down a released time program of religious instruction in the public schools, is the physical location of the religious instruction. The location of such activity should not be the conclusive determinant of constitutionality. Yet, as interpreted by the Supreme Court, that is the law of the land. It needs to be changed.

The mere physical use of a public school building is not the functional equivalent of State sponsorship or entanglement. Physical proximity does not automatically make church and state one. The use of public school buildings for religious activity should be permitted as an accommodation to the free exercise of religion.

The first amendment does not bar cooperation between church and state. Of course, the State must do no more than cooperate in making its physical facilities available for the religious activity on the same basis as it would for any other activity, including any arrangement for financial reimbursement. Such a lack of entanglement would be constitutionally guaranteed by the language that we suggest be added to the proposed amendment, for it would prohibit the States from influencing the form or content of any prayer or other religious activity.

We have used the word "influence," rather than "prescribe," in order to make it clear that the State cannot, directly or indirectly, have anything to do with the form or content of the religious activity. This would not preclude school authorities from scheduling the school day as they see fit and from assuring that such matters as fire regulations are observed. However, it would permit our public schools, at the discretion of the school authorities, to cooperate with the people of the community in making the school building available for religious activity.

What we propose here today is nothing less than a new birth of freedom in this religiously pluralistic society. Our proposal would assure persons of every faith-as well as those who do not believe—the opportunity to participate in a variety of activity using the facilities of the public schools. There could be Bible study, prayer, religious instruction, panel presentations, or debates, according to the wishes of the local community.

Students would be free to attend whatever activity they wished. They could go to meetings of their own faith, or attend with friends at sessions of another faith. The appeal of the program, not the influence of the State, would dictate attendance. This is what religious freedom-in truth, academic freedom-is all about. Our approach, to a great extent, reflects the free speech rationale of the Supreme Court in Widmar, which held that religious speech is entitled to the same constitutional protection as any other form of speech on a State university campus.

Far from being divisive, such a free and diverse program would promote understanding and tolerance of others' beliefs. That to us would be a far healthier situation than the present state of affairs in the public schools where there is often intolerance of religious belief.

We are encouraged by the potential of a constitutional amendment which would restore a balance between the establishment clause and the free exercise clause. We see no good reason why the States, if they choose, should not be permitted to cooperate with the people in allowing religious expression, uninfluenced by the State, in our public schools. It is time that our public schools ceased to be the only public institution where a meaningful acknowledgement of God is forbidden.

Senator DENTON. Thank you, Mr. Dugan. Before proceeding to questions on the part of the committee members directed to the panel, I would like to note the presence of my friend from Iowa, Senator Charles Grassley, and ask if he cares to make a statement at this time.

Senator GRASSLEY. I would like to wait a few minutes, if I could.

Senator DENTON. Before proceeding to questions, I would, for the record, at this point like to enter into the record the correspondence which the President sent to the Congress regarding his proposed amendment to the Constitution about which this hearing is concerned.

It consists of a covering letter, dated May 21, 1982, signed Elizabeth Hanford Dole, Assistant to the President, in which she forwards the copy of the President's proposed amendment, a legal analysis of the amendment prepared by the Justice Department's Office of Legal Policy, and a set of questions and answers relating to the amendment. There is also a letter from the President himself, also dated May 17, 1982, addressed to the Congress of the United States. In general it announces his proposal for consideration, “a proposed constitutional amendment to restore the simple freedom of our citizens to offer prayer in our public schools and institutions." In it the President expresses his belief that prayer based on our faith in God is a fundamental part of our American heritage and is a privilege which should not be excluded by law from any American school, public or private. The President quotes Alexis de Tocqueville, a quote with which I think most of us in here are familiar, and the Farewell Address quotation from George Washington, also familiar, I am reasonably certain, to most of us in this room, but it is only three sentences that he quotes-I think I

should at least read those. Our first President said, in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. And let us with caution indulge the supposition that morality can be maintained without religion. . . . Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

The President goes on to record that nearly every President since Washington has proclaimed a day of public prayer and thanksgiving to acknowledge the many favors of Almighty God. He notes that our coinage, our national anthem, and our pledge of allegiance acknowledge the Supreme Being. He establishes evidence that the founders of our Nation and the framers of the first amendment did not intend to forbid public prayer, quotes Benjamin Franklin, the quotation to which I believe Senator Heflin alluded, and emphasizes that in this amendment, which removes the bar to school prayer established by the Supreme Court, emphasizes also the amendment expressly affirms the right of anyone to refrain from prayer, and says that the amendment will allow communities to determine for themselves whether prayer should be permitted in their public schools, and to allow individuals to decide for themselves whether they wish to participate in prayer.

The joint resolution itself is then included, the usual preamble or presentation of a constitutional amendment, then the two sentences which I have previously quoted which constitute the amendment, and then the administration's proposed constitutional amendment relating to school prayer with a table of contents, including six parts—the religious heritage of the Nation, tradition of prayer in the public schools, the religion clauses of the first amendment and public prayer, judicial rulings restricting school prayer, the need for a constitutional amendment, and analysis of the proposed amendment, which in turn is broken down into five parts.

If there is no objection, I direct that this be included in the record.

[Material referred to by Senator Denton follows:]

11-323 0 - 83 - 6

THE WHITE HOUSE

WASHINGTON

May 21, 1982

On May 17, the President sent to the Congress his proposed' amendment to the Constitution which would restore the freedom of our citizens to offer prayer in our public schools and institutions. I have enclosed for your information the following, items:

1. A copy of the President's proposed amend

ment.

2. A legal analysis of the amendment prepared

by the Justice Department's Office of Legai

Policy. 3. A set of questions and answers relating to

the amendment. I hope you will find this information helpful in articulating the President's proposals and objectives on this very important issue.

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TO THE CONGRESS OF THE UNITED STATES:

I have attached for your consideration a proposed constitutional amendment to restore the simple freedom of our citizens to offer prayer in our public schools and institutions. The public expression through prayer of our faith in God is a fundamental part of our American heritage and a privilege which should not be excluded by law from any American school, public or private.

One hundred fifty years ago, Alexis de Tocqueville found that all Americans believed that religious faith was indispensajle to the maintenance of their republican institutions. i de Tocqueville, Democracy in America 316 (vintage ed. 1945). Today, I join with the people of this nation In acknowledging this basic truth; that our liberty springs from and depends upon an abiding faith in God. This has

been clear from the time of George Washington, who stated

in his farewell address:

of all the dispositions and habits which

lead to political prosperity, religion
and morality are indispensable supports.

And let us with caution indulge the
supposition that morality can be maintained
without religion.

(R)eason and

.

experience both forbid us to expect that
national morality can prevail in exclusion

of religious principle.

35 The Writings of George Washington 229 (J. Fitzpatrick

ed. 1940).

Nearly every President since Washington has proclaimed a day of public prayer and thanksgiving to acknowledge the

many favors of Almighty God.

We have acknowledged God's

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