forget about the distinction between religious people and nonreligious people. Buddhists simply do not pray, or many do not. They meditate. There is a difference.

It is strange, by the way, that the lower court that said it is all right to use the word "meditate" but not prayer was not aware of the fact that in saying the word "meditate" they were saying something that does have meaning for one set of religions but not others.

Senator HATCH. You have suggested that there is some merit in the charge that courts have moved beyond neutrality to hostility with regard to affairs of religion. Could you elaborate on that?

Mr. MALBIN. Yes, such as in lower court decisions overturning tuition tax credits. I do not know enough of the specifics of what happened in the Lubbock schools, but I know that if you applied that principle in a lot of situations I could imagine, that that would involve hostility. I think that not allowing a school bus to pick up people in front of a school because a school bus happens to come from a Christian school is absurd.

I say what I did about Lubbock because that particular decision, the lower court said its decision was based partty on the 10-year history in that district; that means that the decision itself seemed to be pegged to specific facts there.

Senator HATCH. Could you elaborate on the notion that silent prayer may have a greater meaning for the deeply religious individual in his daily devotions than voluntary vocal prayer.

Mr. MALBIN. Yes; I think there is no question that a person who cares about prayer would be able to say more in a moment of silence than in a vocalized public prayer. I know that was true, not just of me, but of all the other people in the classroom I mentioned earlier. I felt I could say the Regents' prayer precisely because it was pabulum, and I do believe in a religion that believes in prayer and believes in one God. Everybody else there also thought it was pabulum and changed it, just changed the prayer; not at anybody's instruction, but because they felt it was necessary, for whatever

reason.

Senator HATCH. Thank you, Doctor.

Senator Grassley?

Senator GRASSLEY. I have no questions, Mr. Chairman.

Senator HATCH. Well, thank you for coming, Dr. Malbin. We appreciate the effort you have put forth. We appreciate having you as a witness.

[The following was received for the record:]

Religion, Liberty, and Law in the American Founding

Michael J. Malbin

Preface

Prayer in the schools, tuition tax credits, and other forms of aid to private and religious schools have raised intense emotional issues of public policy over the last several years and promise greater controversy in the near future. The well-publicized participation of religious figures in last year's election campaigns generated heated discussion about the appropriate relationships between church and state, and the renewal of draft registration and the current status of U.S.Soviet relations raise the possibility that conscientious objection to compulsory military service may again be one of our burning public questions.

Michael Malbin, one of the most careful and knowledgeable students of American constitutionalism I know, spoke about these issues at a February 1981 Clemson University lecture series on Liberty and the Limits of the Law. In his lecture, which is reprinted here, Malbin explored the meaning and contemporary relevance of the Founding Fathers' understanding of the appropriate relationships between religion and politics, church and state.

His conclusion shows how he thinks a return to their principles could help us break free from the shackles that bind contemporary debate:

Lost somewhere in the theoretical murkiness of the [Su-
preme Court's position is any indication of an awareness
of the way the Founding Fathers meant the Declaration,
Constitution, and Bill of Rights to promote both religious
health and civil peace. Unfortunately, some of the Court's
modern conservative critics seem equally unaware of the
deepest purposes of the nation's founding documents. . . .
Both sides would do well to give more careful study to the

foundations of the cons'itutional democracy they are so
busily trying to alter.

According to Malbin, school prayers raise very different constitutional issues from aid to private and parochial schools. On prayers, he argues:

[The free exercise claus was] at least meant to prevent
Congress from prohibiting or compelling any form of reli-
gious worship, by, for example, either prohibiting or
requiring prayers. That is, the clause protected not only
the exercise of religion but the freedom of its exercise.

The original rule.... [under the establishment clause
probably would prohibit Congress from doing most of what
worries modern separationists. For example, it clearly
would prohibit the government from prescribing school
prayers for children, een supposedly voluntary prayers.
A moment of silence would be all right, and probably a
good idea. However, i would be impossible to write an
official prayer today without offending some religious
people.

Trying to push prayer in a nation whose religions are far
more diverse now that they were a century ago. .
threaten[s] to excite exactly the same passions the Constitu-
tion was meant to damp down.

Turning to the question of public support for religiously affiliated schools, Malbin says:

The establishment clause was meant . . . to require a strict
neutrality between rel gions, not neutrality between reli-
gion and irreligion. This is absolutely clear from the
debates in the First Congress.

The establishment clar se was not meant to prohibit truly
nondiscriminatory forris of aid to religion. One such form
of aid was adopted by the First Congress itself when it
reenacted the Northwest Ordinance, which contained a
clause giving free land to anyone who wanted to build
churches or schools, including church schools, in the North-
west Territory. . . . I would maintain that today's tuition
tax credits or tuition vouchers are nondiscriminatory forms
of aid not far different from the Northwest Ordinance. Tax

Preface

Prayer in the schools, tuition tax credits, and other forms of aid to private and religious schools have raised intense emotional issues of poury over the last several years and promise greater controversy in the rear future. The well-publicized participation of religious figures in last year's election campaigns generated heated discussion 4504 the appropriate relationships between church and state, and the renewal of draft registration and the current status of U.S.Soviet relations raise the possibility that conscientious objection to compulsory military service may again be one of our burning public questions.

Michael Malbin, one of the most careful and knowledgeable students of American constitutionalism I know, spoke about these Issues at a February 1981 Clemson University lecture series on Liberty and the Limits of the Law. In his lecture, which is reprinted here, Malbin explored the meaning and contemporary relevance of the Founding Fathers' understanding of the appropriate relationships between religion and politics, church and state.

His conclusion shows how he thinks a return to their principles could help us break free from the shackles that bind contemporary debate.

Lost somewhere in the theoretical murkiness of the [Su-
preme Court's position is any indication of an awareness
of the way the Founding Fathers meant the Declaration,
Constitution, and Bill of Rights to promote both religious
health and civil peace. Unfortunately, some of the Court's
modern conservative critics seem equally unaware of the
deepest purposes of the nation's founding documents. . . .
Both sides would do well to give more careful study to the