!4 SEPARATION OF CHURCH AND STATE

fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving His boundless favors, at the same time that we in contrition when visited with the penalties of His broken laws. No principle of Constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the Army and Navy; and when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by exempting houses of religious worship from the taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination in favor of any one denomination or sect; but the power to do any of these things will not be unconstitutional, simply because of being susceptible to abuse...."

42

Finally, that the First Amendment originally left the entire issue of governmental involvement in religion to the States is extremely clear. When ratified in 1788, the Constitution contained no prohibition against individual state religious establishments; indeed, some States that ratified the Constitution had such religious establishments at the time of ratification, some of which continued to exist even after ratification of the First Amendment until they were ended by the States themselves (as in the case of Massachusetts which finally did so in 1833).

Supporting this view of the constitutional independence of the States in religious matters, President Thomas Jefferson in 1808 noted:

I consider the Government of the United States as interdicted by the Constitution from meddling with religious institutions, their doctrines, discipline or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the State, as far as it can be in any human authority.43

Justice Story's Commentaries on the Constitution indicate that he also believed the First Amendment left religious establishments in the hands of the States:

42 Thomas M. Cooley, Constitutional Imitations (Boston: Little, Brown and Co., 1868), Chap. XIII, pp. 470-71. Emphasis added

43. Paul L. Ford, Life of Jefferson, Vol. 9 (Cambridge, Mass.: A.W. Elson and Co., 1904), p. 174. Emphasis added.

The Genesis of the Establishment of Religion Clause

It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, Episcopalians constituted the predominant sect; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency; if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State Constitutions; and the Catholic and the Protestant, the Calvinist, the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship.4

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From the above documentation, I conclude that, regarding religion, the First Amendment was intended to accomplish three purposes. First, it was intended to prevent the establishment of a national church or religion, or the giving of any religious sect or denomination a preferred status. Second, it was designed to safeguard the right of freedom of conscience in religious beliefs against invasion solely by the national Government. Third, it was so constructed in order to allow the States, unimpeded, to deal with religious establishments and aid to religious institutions as they saw fit. There appears to be no historical evidence that the First Amendment was intended to preclude Federal governmental aid to religion when it was provided on a nondiscriminatory basis. Nor does there appear to be any historical evidence that the First Amendment was intended to provide an absolute separation or independence of religion and the national state. The actions. of the early Congresses and Presidents, in fact, suggest quite the opposite.

44. Story, Commentaries on the Constitution, Sec. 1879, pp. 596-97. Emphasis added. Story relies heavily on Lloyd's Debates, which are frequently cited, for these conclusions.

Senator HATCH. Our next witness is Professor Walter Dellinger of the Duke University School of Law. This subcommittee has been very fortunate in the past to have had Professor Dellinger with us on the subject of Constitutional Convention procedures, if I recall correctly.

In my opinion, Professor Dellinger is one of the most distinguished constitutional scholars in the country. We are privileged to have you with us, Professor, and we are looking forward to hearing your testimony.

STATEMENT OF WALTER E. DELLINGER, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW

Professor DELLINGER. Senator Hatch, I am delighted to be here. With the permission of the chairman, I will submit next weekSenator HATCH. Could you bring the microphone a little bit closer so that everybody can hear you?

Professor DELLINGER. Next week, I will submit a full, prepared statement addressing both the constitutional amendment in Senate Joint Resolution 73 as well as the equal access bills.

Senator HATCH. We will be delighted to put your statement in the record, at that time, without objection.

Professor DELLINGER. I would like to say just a word about equal access before addressing the constitutional amendment because I think it is critically important for this committee to distinguish between those two separate issues. They present sharply different questions.

I, for one, strongly support the principle of equal access. Those wishing to engage in religious activities in public institutions, should have the same right to do so that is available to those engaging in comparable, nonreligious speech activities, and I think that that is a fundamental principle.

I am confident that the U.S. Supreme Court will certainly apply that principle at the high school level, notwithstanding what I think may be erroneous lower court decisions in the second and fifth circuits.

The Lubbock case is complicated. The second circuit decision, I think, is wrong. Both were decided by the lower courts before the Widmar decision in the U.S. Supreme Court, and I am confident that the strong 8 to 1 majority in the U.S. Supreme Court that clearly upheld the right of a Christian student group to use the State university facilities at the University of Missouri-Kansas City on the same basis as other student groups will be applied to situations such as that so eloquently described to the committee today by the impressive young witness from Lubbock.

The constitutional amendment, Senator Hatch, proposed by this administration is one which I fear would lead to government control of the content of religious exercises. The issue of government control is one which the administration has assiduously sought to avoid discussing.

The very able and distinguished Deputy Attorney General, Mr. Schmults, again avoided discussing that question this morning. I believe that if Senate Joint Resolution 73 is fully analyzed, many of

those who believe that they support that amendment will not support it.

It is an amendment which would permit state officials and elected and appointed bureaucrats and politicans to compose prayers and religious liturgies and to require that those prayers be said in every school district in a State.

Senator HATCH. Would you not have the same objection to a silent prayer?

Professor DELLINGER. No. In fact, one of the virtues of a period of silent meditation is that no government official is involved in the prayer.

Senator HATCH. Yes.

Professor DELLINGER. Now, what is so troublesome about Senate Joint Resolution 73 is that several of those who testified at the hearings last summer in favor of it-Mr. Murphy, the Deputy Supreme Knight of the Knights of Columbus, and Mr. Jarman of Project Prayer-stated that they were opposed to allowing State officials to compose and draft official prayers. They did not understand this amendment to do that.

They are wrong, and I think they would not necessarily support this amendment if they were, for example, to attend to the Department of Justice's own analysis of this amendment-an analysis that the administration has attempted to avoid since last summer. Senator HATCH. That is a good point.

Professor DELLINGER. If I could cite to you, Senator, chapter and verse from the published records of the Committee on the Judiciary hearings from last summer, a legal analysis prepared by the Office of Legal Policy of the Department of Justice and transmitted by the President of the United States-and it is published on page 109 of the 1982 hearings-says, "The determination of the appropriate type of prayer is a decision which should properly be made by state and local authorities."

On page 109 of these hearings from last summer, the 1982 hearings, the Administration recognizes that the amendment would allow "arguably sectarian prayer" to be "promoted by the state." At page 108, the Department of Justice's legal memorandum states that, "The proposed amendment also does not specifically limit prayer in public schools and other public institutions to nondenominational prayer.'

At page 104, they state, "The language of the amendment is intended to overrule Engel v. Vitale, which forbade the reading of brief state-composed prayers."

In the question and answer list provided by the White House on White House stationary dated May 6, 1982, and printed at pages 116 and 117 of the 1982 hearings, the White House said, State governments "could choose prayers that have already been written or they could compose their own prayers." Indeed, there is no way around that conclusion,

I think many well-intentioned witnesses who would like to see the availability of religious exercises on an equal basis have been confused because they look at this simple amendment and they do not see anything in the amendment which would permit State or Federal authorities to compose and mandate the nature of the prayer or the religious service.

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But what the amendment does is to remove the present first amendment barrier to prayer in public schools and public institutions. By removing the first amendment barrier presently existing, power resumes in State legislatures, which have control over the schools of the State, to make whatever rules or regulations they wish.

So, for example, if this amendment is adopted and ratified by three-fourths of the States, a local school board could have a meeting of its elected officials and sit down and hammer out and compose a prayer that every school within the district in every classroom is required to recite everyday.

An individual child, I quite clearly understand, could absent himself from such an exercise. But the vice here is the composition of that prayer by school board officials.

If the State Department of Public Instruction is not satisfied with what some localities are requiring in the way of sectarian prayer, at the State level the State Department of Public Instruction could mandate its own bureaucratically composed prayer required of every school district in the State.

The administration must to acknowledge this to be so, because the very case they seek to overrule, as they expressly state, Engel vs. Vitale, involved a prayer whose vice was that it was composed by State government officials. It was composed by State officials who were politically appointed and who drafted and composed an official prayer for New York public schools.

This, I think, should be of most concern to someone who has shown the great concern about the principles of federalism that you have exhibited throughout your career in the U.S. Senate. Perhaps one ought to grab hold of one's seat before we think about the next possibility:

If this amendment is adopted, there would be nothing in the Constitution of the United States to prevent the Federal Government, through bureaucrats in the U.S. Department of Education, from conditioning all Federal funding in 38,000 school districts in the United States on those school districts engaging in a religious exercise which is composed, drafted and mandated by bureaucrats in the U.S. Department of Education.

If there were any doubt as to the plausibility of that scenario, I think that doubt is removed by the fact that that very same legislative device has been utilized in two bills which are also before this committee. I think the Hatfield bill is, on the merits, a sound bill to seek nondiscriminatory access for religious groups to school facilities on the same basis afforded to nonreligious groups.

Senator HATCH. Do you think a statute could actually enable that to happen?

Professor DELLINGER. Yes. But you will notice that you could take the Hatfield bill, which uses the link of Federal education funding, and after the passage of the constitutional amendment that is proposed by the Reagan administration, you could simply fill in the substantive provisions in a very different way,

Congress could say that future Federal funding to all 38,000 school districts is dependent upon those school districts following the religious ritual mandated by Congress, or it could simply turn that determination over to the Department of Education for the is