VOLUNTARY SCHOOL PRAYER FRIDAY, APRIL 29, 1983 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, The subcommittee met, pursuant to notice, at 9:17 a.m., in room SD-628, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding. Staff present: Stephen J. Markman, chief counsel; Philip Barker, professional staff member; and Claire Greif, chief clerk. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. Ladies and gentlemen, this is the first of 2 days of hearings by the Subcommittee on the Constitution on proposed amendments to the Constitution relating to school prayer. In particular, we hope to focus on Senate Joint Resolution 73 which Senator Thurmond and myself have introduced at the request of the administration. This amendment would restore the right of school children to engage in voluntary group prayer at the outset of the school day. No student, however, would be required to participate in such prayer. I regret having to support another amendment to the U.S. Constitution. There is no one in this body who is more respectful of the work done by the founders and less confident of the ability of Congress to improve upon that work. Once again, however, the proposed constitutional amendment before this subcommittee is one that seeks to restore to the Constitution a traditional understanding abruptly overturned by the Supreme Court in recent years. In my view, it is the Supreme Court that has engaged in amending the Constitution. They have engaged in constitutional amendment in their decisions in Engel v. Vitale and Abington v. Schemp. I do not see what alternative Congress now has in restoring the traditional understanding of the first amendment establishment clause short of a constitutional amendment adopted through the proper article V route. In decisions such as Engel and Abington, as well as others not directly related to school prayer, the Supreme Court has established a theory of the first amendment that is thoroughly contrary to the intentions of the original Founding Fathers, the spirit of the Constitution, the historical development of the first amendment, and the will of the citizenry. The purpose of the first amendment establishment clause was not to erect a "wall of separation" between the state and all expressions of religious sentiment. As Professor Cord has made clear in his monumental work on the first amendment, its purpose was to prohibit the national government from establishing a preferred religion or an official church. The first amendment was not intended to divorce entirely the state from any relationship with the religious impulse. To do that, as Professor Cord demonstrates, would have been to divorce the state from the very infusion of values that motivated the Constitution in the first place. What we have recently seen in the Lubbock case, in which a school district has been barred from allowing voluntary student religious groups from meeting on their own time on school premises, is an attempt to carry the "wall of separation" misconception of the first amendment to its logical extreme. Lubbock goes beyond prohibiting the state from encouraging religion in even a general manner, and seems to require that the state adopt a hostile attitude toward religion. Alone among student extracurricular activities, those that relate to religion are to be barred from school premises. This is no longer an "establishment of religion" issue, but one in which the very free exercise of religion is involved. While I believe that Senate Joint Resolution 73 is a meritorious amendment, I share some of the concerns raised by Senator Thurmond when he introduced this measure. I am concerned that any amendment approved by this subcommittee ensure that reasonable accommodation will be made to those school children who choose not to participate in group or individual prayer. I am also concerned about how the content of any group prayer is to be determined. Any responsible amendment will have to be consistent with the value structure of our Constitution-protection of the rights of minorities, tolerance of diverse religious viewpoints, and the need to ensure that the very distinct spheres of church and state are maintained as distinct spheres. I very much look forward to our witnesses today and next Monday offering a diverse perspective on which direction our nation ought to head in regard to the issue of the relationship between the state and the expressions of religious values. This is an important issue. People all over this country feel strongly about allowing voluntary prayer in public schools. We hope during the course of these two hearings to have the best witnesses we can possibly find on all sides of the issue. I hope we will be able to come up with a resolution that will be satisfactory to the vast majority of people in this country, and hopefully to a two-thirds majority of the U.S. Congress. [Senate Joint Resolution 73, and a message from the President submitted to the 97th Congress follows:] Proposing an amendment to the Constitution of the United States relating to voluntary school prayer. IN THE SENATE OF THE UNITED STATES MARCH 24 (legislative day, MARCH 21), 1983 Mr. THURMOND (for himself, Mr. HATCH, Mr. CHILES, Mr. ABDNOR, Mr. NICKLES, and Mr. HELMS) (by request) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary 1 JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to voluntary school prayer. Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled, 3 That the following article is hereby proposed as an amend4 ment to the Constitution of the United States, which shall be 5 valid to all intents and purposes as part of the Constitution if 6 ratified by the legislatures of three-fourths of the several 7 States within seven years from the date of its submission to 8 the States by the Congress: 1 2 2 "ARTICLE "Nothing in this Constitution shall be construed to pro 3 hibit individual or group prayer in public schools or other 4 public institutions. No person shall be required by the United 5 States or by any State to participate in prayer.". A PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO ALLOW VOLUNTARY PRAYER IN PUBLIC SCHOOLS OR OTHER PUBLIC INSTITUTIONS MAY 18, 1982.-Message and accompanying papers referred to the Com mittee on the Judiciary and ordered to be printed 89-011 O U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1982 |