be set aside only for prayer, but that a moment of silence may be set aside for either meditation or prayer or any other thing that the children want to do with that silent time. If that is what it means, I do not oppose it at all, but I think it is completely unnecessary to have a constitutional amendment on the subject. I know of no reason to expect that the Supreme Court of the United States, when the question finally comes to it, would hold that kind of silent period to be unconstitutional A moment of silence set aside at the beginning, at the middle, at the end of a school day, for children to think, pray, do whatever else they wish, so long as it is in silence, does not seem to me likely to be held to violate the establishment clause, as long as it is made clear that the choice is the children's, and that prayer is just one of many silent things that are permitted to be done during that time.

It seems to me that is all anyone should want if what you want is an opportunity for silent prayer. You do not want to say to the child, "You must pray now," because, as we said before, a child may not want to, and he has no obligation to do that, and it should not be governmental policy to require prayer. And if you simply say, "This is a moment of silence where you may pray if you wish, it seems to me that it has always been understood that a child in school, or a teacher in school, may silently pray at any time during the school day. I imagine, in fact that lots of children silently pray in school at the beginning of examinations—even in the middle of examinations or before being called upon to recite. There is nothing unconstitutional about that, and I do not believe there is any need to have a constitutional amendment to deal with the matter. And given the length and divisiveness of the constitutional amendment process, it seems to me that that is just another reason why you should not propose an amendment unless it is absolutely necessary to do so.

I have basically the same view about the second part of Senate Joint Resolution "blank," section 2, dealing with equal access. This is an issue which the Supreme Court confronted for the first time, about 2 years ago, in the Widmar case. As you know, in that case, the Court held that in the university setting, the first amendment required that when public facilities were made available to voluntary student groups generally, they had also to be made available to religious groups, even for prayer purposes.

The Supreme Court has not yet said whether that decision applies in the secondary and elementary school setting as well. There are some reasons why it might be argued that it does not. Indeed, the Supreme Court in Widmar referred to at least one factor that might lead to a distinction between universities and elementary schools, namely, the impressionable nature of younger children and the fact that if voluntary groups were permitted to pray on school premises, some younger children might think in some circumstances that that showed official school approval or official school backing of a particular religious group or prayer.

But it seems to me quite possible that a voluntary "equal access" policy, even in elementary schools, could be administered in a way that would largely or completely negate any impression that would be given to the children that this was some kind of an official prayer or religion.

Until the Supreme Court decides that that cannot be done, and while it still seems that it is at least possible that the Supreme Court will decide that some kind of voluntary, "equal access' policy is constitutional, when hedged in with safeguards against giving the impression that the prayer is official prayer, it seems to me unwise to propose a potentially devisive constitutional amendment to deal with a constitutional problem that may well be nonexistent.

So, to summarize, I oppose Senate Joint Resolution 73. I think that proposal is a terrible idea, because: No. 1, it would permit very narrow denominational and sectarian official prayers, and No. 2, it would get governmental units involved in deciding what prayer to adopt, which would be a very serious kind of inappropriate entanglement between religion and government.

And as to Senate Joint Resolution "blank," if the first section means a moment of silence only for prayer, I oppose that as a bad idea. If it means a moment of silence for prayer or other things, I do not see any objection to that, but I do not think a constitutional amendment is necessary to permit that. I think that can be done today.

And the second section of Senate Joint Resolution "blank," the "equal access" section, I also think unnecessary because, so far as we now know, the Supreme Court is quite sensitive to those "equal access" problems. In my view, the Court should be given a chance to work those problems out before we try to tinker with the Constitution.

Thank you very much.

The CHAIRMAN. Thank you very much.

As I understand it, you are opposed to the President's recommendation.

Professor BENDER. Correct.

The CHAIRMAN. And as to the subcommittee's alternate which is being considered, you think it may not be necessary, but you do not especially oppose it. Is that right?

Professor BENDER. Well, if it means to authorize a moment of silence only for prayer, I oppose it. If it means to authorize a moment of silence during which the children may, if they wish, pray or meditate in other ways, then I do not oppose it, but I think it is unnecessary to amend the Constitution to achieve that result. The CHAIRMAN. All right. Thank you very much. We appreciate both of you appearing here today.

We do have another panel at this time, including, first, the Baptist Joint Committee on Public Affairs; the Lutheran Council, U.S.A,; the National Council of Churches, and the American Jewish Congress.

If you gentlemen would please introduce yourselves, in the order of each group that I called.

STATEMENT OF A PANEL, INCLUDING JOHN W. BAKER, GENERAL COUNSEL, BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS; REV. CHARLES V. BERGSTROM, EXECUTIVE DIRECTOR, OFFICE FOR GOVERNMENTAL AFFAIRS, LUTHERAN COUNCIL, U.S.A.; REV. DEAN M. KELLEY, DIRECTOR FOR RELIGIOUS AND CIVIL LIBERTY, NATIONAL COUNCIL OF CHURCHES OF CHRIST OF THE U.S.A.; AND JOEL H. LEVY, AMERICAN JEWISH CONGRESS Mr. BAKER. I am John W. Baker, the general counsel for the Baptist Joint Committee on Public Affairs.

Reverend BERGSTROM. Charles Bergstrom, Lutheran Council, U.S.A.

Reverend KELLEY. Dean Kelley, with the National Council of Churches.

Mr. LEVY. Joel H. Levy, the American Jewish Congress.

The CHAIRMAN. Thank you. We will just take you in the order in which I called them, if that is agreeable.

We wish to welcome you gentlemen here, and you may proceed now. The light will come on when you start. The yellow light means you have 1 minute, and the red light means your time is up.

Mr. BAKER. Thank you, Mr. Chairman. I have filed with the committee a full statement, and I will not attempt to read the entire thing. In fact――

The CHAIRMAN. The entire statement will go in the record, and you may express yourself as you see fit.

STATEMENT OF JOHN W. BAKER

Mr. BAKER. Thank you.

I am the general counsel for the Baptist Joint Committee, which represents, or is the Washington office, for the eight major Baptist denominations, black and white, in this country, with a total membership of nearly 30 million, but because of the congregational nature of the Baptist Church, which you are well aware of, we do not purport to speak for any particular Baptist or for every Baptist at all.

However, I do want to point out to the committee that last week, I think it was-time gets by me-in Pittsburgh, the Southern Baptist Convention went back to its traditional position in opposition to any change to the first amendment, and in opposition to this sort of a thing that is involved both in Senate Joint Resolution 73 and House Joint Resolution "blank." The American Baptists did the same thing 1 day later.

Generally, this is the kind of thing that Baptists believe. They believe in separation of church and state, and they do not believe in government involvement in religion or in the religious process. We have objected over the years to amendments similar to Senate Joint Resolution 73, and because we have been so consistently against that, we have not included any testimony of this sort in our statement today. However, we are addressing what is now called Senate Joint Resolution "blank." And I have several reasons why we do object to this and are opposed to it. First of all, in the best of our traditions, we are opposed to amending the first amendment. It i

vate a

al, it seems to me, that such a very personal, priv religious part of an individual's life—that is,

prayer-should be a subject matter of the only serious congressional attempts to modify the religion clauses of the first amendment. The Supreme Court did not, as has been pointed out, in fact, could not eliminate truly voluntary prayer from the public schools. Neither a prayer amendment, which in effect provides for governmentprescribed, so-called voluntary prayers, nor a required or permitted period of silence is necessary for truly voluntary prayer to take place. The first amendment is as it is an adequate and sufficient guarantor of the truly voluntary religious activity.

Secondly, we have objected to these proposals because we feel that amending the Constitution should be the very last resort, rather than the first resort. The Constitution has stood as a fundamental law for nearly two centuries, and to assume that every perceived wrong or suspect application of our fundamental law must be corrected by an amendment to the Constitution is to be untrue to our heritage as Americans.

Only after all—and I emphasize all-other methods for the redress of grievances have been exhausted, should any consideration be given to adding new ideas and particularly, new words that have been untested and uninterpreted to the Constitution.

Third, neither the judicial nor the legislative processes have run their full course on a period of silence or on equal access. You have this pointed out to you already, that there are cases in the pipeline that the Court is going to consider or will consider, and I think you have not exhausted those opportunities. Courts are uniquely competent to differentiate fact patterns and to render case-by-case decisions in complicated and emotion-laden cases. It is the better part of wisdom, in my opinion, to give the courts a full opportunity to decide the cases that are there.

Also, I think the legislative body has some things that they need to say. Mr. Hatfield spoke today on his equal access bill, S. 815. It has not been given a full hearing, and it merits such hearing. We would find his provision much less threatening to religious liberty than that proposed by this amendment.

So I close where I came in. We are unalterably opposed to tampering with the first amendment. The amendment has indeed proven to be adequate and sufficient to protect religious liberty in the past, and it is our contention that if it is left alone, it will continue to be adequate and sufficient for the years to come.

Thank you.

[The following was received for the record:]

PREPARED STATEMENT OF JOHN W. BAKER

I am John W. Baker, General Counsel for the Baptist Joint

Committee on Public Affairs.

The Baptist Joint Committee on Public Affairs is composed of representatives from eight national cooperating Baptist

conventions and conferences in the United States. They are: The American Baptist Churches in the U.S.A.; Baptist General Conference; National Baptist Convention of America; National Baptist Convention, U.S.A., Inc.; North American Baptist Conference; Progressive National Baptist Convention, Inc.; Seventh Day Baptist General Conference; and Southern Baptist Convention. These groups have a current membership of nearly 30

million.

Through a concerted witness in public affairs, the Baptist Joint Committee seeks to give corporate and visible expression to the voluntariness of religious faith, the free exercise of religion, the interdependence of religious liberty with all human rights, and the relevance of Christian concerns to the life of the nation. Because of the congregational autonomy of individual Baptist churches, we do not purport to speak for all Baptists.

On June 16, 1983 the Southern Baptist Convention, meeting in Pittsburgh, Pennsylvania, adopted a resolution which, after praising the First Amendment provisions preventing an establishment of religion and guaranteeing the free exercise of religion, concluded: "Be it finally RESOLVED, That we call upon Baptists to express their confidence in the United States Constitution, and particularly the First Amendment, as adequate and sufficient guarantees to protect these freedoms." One day later, on June 17, 1983, The American Baptist Churches in the U.S.A., meeting in Cleveland, Ohio, adopted a resolution on religious liberty which in part stated: "We also reaffirm the principle of Separation of Church and State as a legal guarantee and a source of support for religious liberty."