the post-Civil War amendments. After the Supreme Court found the Federal income tax unconstitutional in 1893, the 16th amendment was passed to authorize such a tax. Thus, when the Supreme Court ruled in 1962 that reading of prayer aloud in public classrooms was an "establishment of a religion" forbidden by the first amendment, there were sparks, similar to the other outcries, for reversal; decisions such as Engel v. Vitale and Abington v. Schempp, as well as others not relating directly to school prayer. The Supreme Court has established a theory of the first amendment that is contrary to the intent of the founders, the historical development of the first amendment, the spirit of our Constitution. The Supreme Court has held the school system to be constitutionally forbidden from sponsoring devotional exercise such as prayer or bible-reading in the public schools; forbidden from permitting private teachers of religion to give religious instruction to students during the school day; forbidden from adapting the school curriculum to reflect religious beliefs, and forbidden from posting such religious affirmations such as the Ten Commandments on the classroom wall, regardless of whether the students participation was voluntary or not. This in a Nation where the evidence that we are a religious people surrounds us every day-in our coins, our national anthem, our pledge of allegiance. Our faith in God, expressed through prayer, is richly engrained in the American history. The purpose of the first amendment "establishment" clause was not to erect a wall of separation between the State and religious expression. Its purpose was to present the establishment of a preferred religion. However, in an attempt to conform to the severe constraints of court-imposed separation, our public schools do not even acknowledge the existence of God. This environment is most unfortunate, in my opinion. I do not see what alternative Congress now has in restoring the traditional understandings of the first amendment establishment clause, short of a constitutional amendment adopted through the proper, article V route. Such an amendment has the overwhelming support of the American people. The amendment being considered today steers a wise course. It does not mandate prayer in public schools, but simply seeks to remove any constitutional barrier to voluntary prayer. This amendment would permit schools to accommodate, in the best manner, the free exercise of religion. What else could this country want but just that a period of silence where no one is forced to do anything they do not want to, and yet, one can express themselves if they so feel. Supreme Court rulings have been blamed for the deteriorating quality of public education, for the breakdown of the American family, for the decay in moral principles, and the abdiction of government institutions to secular humanism. I do not side with those who seek prayer in school as a panacea for all of these ills and problems. I do, however, believe that we are a religious and moral people and that religious expression has an important place in our While I believe in the role of prayer in our children's schools, I have concerns which I hope to see addressed at these hearings. I am concerned that any amendment approved by this Congress ensures that voluntary religious expression is protected. I am also concerned about how the content of group prayer suggested in the President's amendment might be determined. Finally, I will look to see if the amendment is consistent with the cherished constitutional beliefs of toleration of diverse religions, protection of the rights of minorities, and maintenance of the dif ference between church and State. Most importantly, I seek accommodation of the diverse attitudes toward religious expression in these public hearings. Thank you. Senator HATCH. Thank you, Senator DeConcini. We appreciate your remarks. Our first witness today will be the Hon. Edward Schmults, who is the Deputy Attorney General of the United States, and who has represented the administration on two previous occasions before this committee on the President's proposed constitutional amendment on the subject of school prayer. Mr. Schmults, I am going to have to apologize to you. I have to be on the floor in approximately 10 or 15 minutes, but I am going to listen to as much of your testimony as I can. And I apologize to other witnesses. There are a number of friends, who are testifying today, on both sides of this issue, whom I admire a great deal. I notice that Senator Mark Hatfield has arrived. Mr. Schmults, would you mind if I allowed Senator Hatfield to go first, in order to accommodate his time constraints? Mr. SCHMULTS. Please go ahead. Senator HATCH. Mark, we are happy to welcome you before the committee. We know that you feel deeply on these issues. We will be most interested in what you have to say. STATEMENT OF HON. MARK O. HATFIELD, A U.S. SENATOR FROM THE STATE OF OREGON Senator HATFIELD. Thank you, Mr. Chairman, and I want to thank Mr. Schmults for his courtesy in permitting me to lead off here this morning. Mr. Chairman, I have a statement with some documents that I would ask your support in entering into the record. Senator HATCH. Without objection, they will be entered into the record as though delivered. Senator HATFIELD. Thank you. Let me just briefly summarize, if I could, to expedite the hearing as much as possible for you. This is a very busy day on which you are going to be on the floor for most of the day. Mr. Chairman, I would like to just read the first amendment to the Constitution. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof"-I repeat, "or prohibiting the free exercise thereof"-"or abridging the freedom of speech or of the press, or of the right of the people peaceably to assemble and to petition the government for redress of grievances." the post-Civil War amendments. After the Supreme Court found the Federal income tax unconstitutional in 1893, the 16th amendment was passed to authorize such a tax. Thus, when the Supreme Court ruled in 1962 that reading of prayer aloud in public classrooms was an "establishment of a religion" forbidden by the first amendment, there were sparks, similar to the other outcries, for reversal; decisions such as Engel v. Vitale and Abington v. Schempp, as well as others not relating directly to school prayer. The Supreme Court has established a theory of the first amendment that is contrary to the intent of the founders, the historical development of the first amendment, the spirit of our Constitution. The Supreme Court has held the school system to be constitutionally forbidden from sponsoring devotional exercise such as prayer or bible-reading in the public schools; forbidden from permitting private teachers of religion to give religious instruction to students during the school day; forbidden from adapting the school curriculum to reflect religious beliefs, and forbidden from posting such religious affirmations such as the Ten Commandments on the classroom wall, regardless of whether the students participation was voluntary or not. This in a Nation where the evidence that we are a religious people surrounds us every day-in our coins, our national anthem, our pledge of allegiance. Our faith in God, expressed through prayer, is richly engrained in the American histo ry. The purpose of the first amendment "establishment" clause was not to erect a wall of separation between the State and religious expression. Its purpose was to present the establishment of a preferred religion. However, in an attempt to conform to the severe constraints of court-imposed separation, our public schools do not even acknowledge the existence of God. This environment is most unfortunate, in my opinion. I do not see what alternative Congress now has in restoring the traditional understandings of the first amendment establishment clause, short of a constitutional amendment adopted through the proper, article V route. Such an amendment has the overwhelming support of the American people. The amendment being considered today steers a wise course. It does not mandate prayer in public schools, but simply seeks to remove any constitutional barrier to voluntary prayer. This amendment would permit schools to accommodate, in the best manner, the free exercise of religion. What else could this country want but just that a period of silence where no one is forced to do anything they do not want to, and yet, one can express themselves if they so feel. Supreme Court rulings have been blamed for the deteriorating quality of public education, for the breakdown of the American family, for the decay in moral principles, and the abdiction of government institutions to secular humanism. I do not side with those who seek prayer in school as a panacea for all of these ills and problems. I do, however, believe that we are a religious and moral people and that religious expression has an important place in our While I believe in the role of prayer in our children's schools, I have concerns which I hope to see addressed at these hearings. I am concerned that any amendment approved by this Congress ensures that voluntary religious expression is protected. I am also concerned about how the content of group prayer suggested in the President's amendment might be determined. Finally, I will look to see if the amendment is consistent with the cherished constitutional beliefs of toleration of diverse religions, protection of the rights of minorities, and maintenance of the difference between church and State. Most importantly, I seek accommodation of the diverse attitudes toward religious expression in these public hearings. Thank you. Senator HATCH. Thank you, Senator DeConcini. We appreciate your remarks. Our first witness today will be the Hon. Edward Schmults, who is the Deputy Attorney General of the United States, and who has represented the administration on two previous occasions before this committee on the President's proposed constitutional amendment on the subject of school prayer. Mr. Schmults, I am going to have to apologize to you. I have to be on the floor in approximately 10 or 15 minutes, but I am going to listen to as much of your testimony as I can. And I apologize to other witnesses. There are a number of friends, who are testifying today, on both sides of this issue, whom I admire a great deal. I notice that Senator Mark Hatfield has arrived. Mr. Schmults, would you mind if I allowed Senator Hatfield to go first, in order to accommodate his time constraints? Mr. SCHMULTS. Please go ahead. Senator HATCH. Mark, we are happy to welcome you before the committee. We know that you feel deeply on these issues. We will be most interested in what you have to say. STATEMENT OF HON. MARK O. HATFIELD, A U.S. SENATOR FROM THE STATE OF OREGON Senator HATFIELD. Thank you, Mr. Chairman, and I want to thank Mr. Schmults for his courtesy in permitting me to lead off here this morning. Mr. Chairman, I have a statement with some documents that I would ask your support in entering into the record. Senator HATCH. Without objection, they will be entered into the record as though delivered. Senator HATFIELD. Thank you. Let me just briefly summarize, if I could, to expedite the hearing as much as possible for you. This is a very busy day on which you are going to be on the floor for most of the day. Mr. Chairman, I would like to just read the first amendment to the Constitution. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof"-I repeat, "or prohibiting the free exercise thereof"-"or abridging the freedom of speech or of the press, or of the right of the people peaceably to assemble and to petition the government for redress of grievances.' Mr. Chairman, I submit that the present ruling of many of the Federal courts of this country today deny the first amendment rights of students in secondary education. I say that because in effect, in a number of cases-at Guilderland High School, a New York case, and the Lubbock, TX, case, two of the more better known cases-they very clearly deny the first amendment speech rights of students of those high schools who would voluntarily associate themselves together in matters discussing religion, or studying the scriptures, or praying, or whatever they might want to do, in noninstructional periods. Now, when a school has set forth a forum by which students may voluntarily associate themselves, to establish a camera club, a music club, an athletic club, or a philosophy club-a philosophy club that could discuss the philosophies of Karl Marx or Hegel, or any of the other, well-known philosophers-but once they have crossed that boundary and begin to study the great philosophy of an Isaiah or a Jesus Christ, then, that becomes illegal. Now, I submit under the freedom of speech, under the freedom to assemble, under the freedom to exercise their religious speech rights, the courts are in violation of the Constitution. Now, I must confess to you that I do not support the prayer amendment to the schools that would put prayer into the schools in one form or another. I happen to have a very strong Baptist background, and I believe in the strict separation of church and state. But that is not the issue here. The issue is simply the denial of the religious rights of our citizens when they are at the secondary education level. Second, these Federal appellate decisions force the schools to be hostile to religion. Now, I think the Government is to be neutral in matters of religion. I think that has been established over the years. But this is not neutrality. This is a hostile role, when they deny the students this right to voluntarily associate themselves. Now, I think it is very interesting to note that the same question was raised in a case involving public universities. Here again, the University of Missouri permitted students to organize into various associations voluntarily, so long as they did not intrude into instructional time periods. Once again, students were denied the right to organize and meet for religious purposes. The Supreme Court held in the Widmar case, 454 U.S. 263, in 1981, that once a public university established an open forum, they could not dictate the content of the forum, they could not censor the forum, and they could not abridge the freedom of religious speech in that forum. I believe that the Supreme Court was correct in the Widmar case, and all I am suggesting in the bill that I have introduced, S. 815, is to apply that same wisdom of the Supreme Court to secondary institutions of learning. That is in a nutshell what we are attempting to do here. I am delighted to say that there has been a more recent Federal court ruling that has applied that doctrine of the Widmar case to public secondary schools. As you know, because you joined along with about 23 other Senators last year, I submitted an amicus brief to the Supreme Court, asking them to issue a writ of certiorari, to take on the Lubbock case and to review it. Unfortunately, the |