the State or the political subdivision to decide that you have to treat everybody alike?

Mr. DAIKER. Yes, sir.

Senator HRUSKA. There may be other constitutional provisions that might come into play, maybe the 14th amendment or its equal-protection clause or what have you. But this has nothing to do with that situation, has it?

Mr. DAIKER. Yes.

Senator HRUSKA. You rightly pointed out that ever since the beginning of the public school system in this country there have been school districts that have permitted prayers, and none of these troubles ever

arose.

Now, maybe we can envision certain hypothetical situations where difficulties might be asserted, we might have White Muslims or Black Muslims or Yellow Muslims or Red or any other thing, and there might be a big ruckus or confusion in a given school district.

There is a remedy for that, isn't there, because the school district may say, "A pox on all your houses." They would say "We will allow it for no one." Apparently the history of the New York statute might be just that kind of a history. But that again has nothing to do with this resolution because until someone improperly used that schoolroom for a religious exercise such as that contemplated by this resolution no problem arises. When it does arise then we apply this resolution in a negative way, saying that no authority shall be prohibited from making that use of it.

Now, the point I want to make about it, and ask you if you do not agree with me, is whether this resolution confers rights or does it confer a prohibition. Does it impose a prohibition?

Mr. DAIKER. No, it confers a permission.

Senator HRUSKA. A permission. But doesn't it start out with these words, "Nothing contained in this Constitution shall prohibit"? Mr. DAIKER. "Shall prohibit." You have a prohibition and a permission, I guess.

Senator HRUSKA. A prohibition of something, however.

Mr. DIAKER. Yes.

Senator HRUSKA. What is the prohibition? The interposition of this Constitution to forbid that right?

Mr. DAIKER. Right.

Senator HRUSKA. To forbid that activity, isn't that about the size of it?

Mr. DAIKER. But in prohibiting it is giving permission. That was the reason for my first answer.

Senator HRUSKA. Well, I cannot quite reconcile that.

Mr. DAIKER. Well, at the present time you need permission in this form to have a prayer in the first place where you would bring into play "nothing in here shall prohibit the voluntary offering of a prayer." I think it is just a mater of semantics. I think we mean the same thing.

Senator HRUSKA. That prohibition is against raising the Constitution as it is now interpreted. That is what this amendment will do. It is a permission granted.

Mr. DAIKER. Yes, sir.

Senator HRUSKA. But it does not create any new right.

Mr. DAIKER. No.

Senator HRUSKA. It does not create any new right.
Mr. DAIKER. No.

Senator DIRKSEN. That is, after all, only a ministerial duty.

Senator HRUSKA. It would be a ministerial duty. If a school board passes a resolution, in a State where there is no State statute prohibiting it, that a certain room shall be provided for permitting the voluntary participation by students in prayer, would that be in keeping with this resolution?

Mr. DAIKER. Yes, sir.

Senator HRUSKA. Then you get to the point of the substance of a prayer, but that is not dealt with here except

Mr. DAIKER. No.

Senator HRUSKA (continuing). Except in the second sentence of the section, is it not?

Mr. DAIKER. That is right.

Senator HRUSKA. It says, "Nothing contained in this article shall authorize any such authority to prescribe the form or content of any prayer."

Mr. DAIKER. Yes.

Senator HRUSKA. Then, however it is selected that is something else, is it not? The only thing that it prohibits is this authority from prescribing the content and the form, isn't that about it?

Mr. DAIKER. Yes, that is correct.

Senator BAYH. Would the Senator yield? Would the Senator care to offer his principle concerning the teacher in this? I respect your judgment, and you have had a chance to study this at some length. Do you feel that the teacher would be within that? Would she be within her rights or would she be violating the Constitution to take some charge, give some direction, in determining what prayer was to be said or would she come under the auspices of the authority administering it?

Senator HRUSKA. Well, we had a witness here this morning who took this position: if the teacher makes it the pending business of the class to have a voluntary prayer it is within the provisions of the first amendment because that is in respect of an establishment of religion.

Senator BAYH. I just wondered.

Senator HRUSKA. I know, but that is an extreme position, but I feel, and as the witness has repeatedly said, we are a member of a brotherhood. We are not people who are nasty and obstinant. We must presume a certain amount of good faith on the part of the people who are teaching schools and administering them. Those who are administering them are forbidden under this resolution, but that will work itself out.

Senator BAYH. It seems to me, and I thought we passed over, in fact I thought Mr. Daiker at first under Senator Tydings' questioning, said that the teacher would not be permitted because she would be part of the authority administering, but it would seem to me that we later got around to thinking that this was the school board. It would seem to me if this resolution passed the teacher would be the legitimate

one to take some charge of the classroom whether they were praying or whatever they were doing.

Senator HRUSKA. Somebody would have to determine the method by which that is done. If anybody on the outside, not the authority, would say, "Here is a prayer I would like to have your class use," that would be considered. The American Legion and the PTA and even the Black Muslims might propose it. What is wrong with the teacher saying, "Children, we have these prayers that have been offered for consideration. Would you like to have a committee, would you like to think about them yourselves, and choose whichever you want?" Would there be anything wrong with that as a good lesson in citizenship and the use of the children's intelligence? Mind you, they are not all 5, 6, and 7 years old, and some of them are older, because not all of them are in kindergarten. This decision applies to all public schools, even to those where there are candidates as doctors of philosophy.

In the testimony we had this morning the position was taken that if the teacher makes it the pending business of the class that would be the essence of the establishment of religion.

Let me read the whole sentence:

Whatever the source or form or contents of the prayer, if the teacher makes it the pending business of the class it has then the sanction of the school system and the implied endorsement of the administering authority thereof, which is the essence of the establishment of religion.

Now, I cannot support that language, but I presume what the witness meant was that it reflected an establishment of a religion. Mr. DAIKER. That is right.

Senator HRUSKA. Now, the saying of a prayer is a relatively small segment, is it not, of an establishment of religion?

Mr. DAIKER. Certainly.

Senator HRUSKA. Wouldn't you say so, Mr. Witness?

Mr. DAIKER. Yes, sir.

Senator HRUSKA. Now then, what would you say about Congress passing a law respecting the exemption from churches paying income tax? You do not have to pay income tax on your church income, any amount of contributions you get. Would you think if the saying of a prayer, which is such a small segment of an establishment of religion, is considered to be in violation of the Federal Constitution, would this law granting exemption from the payment of income taxes to an establishment of religion be within the purview of the Federal Constitution?

Mr. DAIKER. Well, I noticed this morning in listening to the testimony to which you are referring that this was passed off as saying, "Well, we have done that a long time in this country so I guess that is all right," or I am loosely paraphrasing.

I do not think that is the answer. I think there has been such a recognition of religion throughout our heritage that that is the thing that is responsible for tax exemptions for church properties or for income tax exemption for church contributions.

The probable more legalistic reason behind it is that interpreting the laws which provide for both of those things there has never been any question that this constitutes "an establishment of religion."

I think we have had by the tacit interpretation, at least, of 100 years or more, that an establishment of religion does not mean establishing

religion in the generic or general sense, because every one up to recent years thought an establishment of religion meant a church, establishing a church.

The purpose of the first amendment originally was to prohibit a state church, not to prohibit prayer as such, not to prohibit church exemptions from taxation, not to prohibit tax deduction for tax contribution, and I think that is the rationale which has led us along this 100 years or so in justifying because there is nothing unconstitutional about them. There is nothing to be justified. We are not reconciling them into a statute. We already do.

Senator HRUSKA. Let me read the very simple language of the first amendment:

Congress shall make no law respecting an establishment of religion.

Does not the accessibility of funds respect an establishment of religion?

Mr. DAIKER. No, sir.

Senator HRUSKA. It seems to me a law like that would relate to an establishment of a religion. It just would. How can you get away from it when we say **shall make no law respecting an establishment of religion," and that means relating to or having some connection to it. Isn't that what it means?

Mr. DAIKER. No, sir.

Senator HRUSKA. It doesn't? What does "respecting" mean?

Mr. DAIKER. "Respecting and relating," yes, I will agree. "Respecting and relating," perhaps, are interchangeable. But where I am differing with the Senator is in the words “* * * an establishment of religion." I do not think that you are establishing a religion when you give a church exemption or a tax deduction.

Senator HRUSKA. No. But you see the amendment, as I say, says, Congress shall make no law respecting the establishment of a religion. Even if no church was created as a result of the requirement that the churches pay income tax or whether you simply say that such a law would impair the finances or reduce the finances of going into churches as churches, it still refers to an establishment of religion, whatever you might construe "establishment of religion" to be. Congress has made a law relating to one or the other of those meanings when it says you do not have to pay income tax.

Mr. DAIKER. In a sense you are right. I must agree with you there. But I have to go back to what the authorities have said is meant by an establishment of religion.

Senator HRUSKA. That is all right.

Mr. DAIKER. I notice each time the Senator refers to the clause, he says, "No law respecting an establishment of religion." Now, if I were to read it, perhaps, I would put the emphasis on a different syllable or group of words, there, and I think this is important. No law respecting an establishment of religion.

Senator HRUSKA. Yes. What would be an establishment of religion?

Mr. DAIKER. A corporate entity, a corporate church.
Senator HRUSKA. Any Baptist Church?

Mr. DAIKER. Yes.

Senator HRUSKA. All right.

Does the requirement to pay income tax-not to pay income tax relate to that Baptist Church?

Mr. DAIKER. It relates to all churches.

Senator HRUSKA. It respects that. It is a law respecting that particular church, is it not?

Mr. DAIKER. Yes.

Senator HRUSKA. Yes, and, therefore, would seem to fall within the prohibitions of the first amendment.

Mr. DAIKER. It would seem to if we put the emphasis where you put it.

Senator HRUSKA. It does not make any difference. You define for me under your emphasis that a particular Methodist Church would be an establishment of religion. Well, when Congress passed a law saying to that church, "You don't have to pay income taxes," that is a law which respects that institution which you, yourself, defined.

Now, this is a little different than the question I raised this morning because there I referred to the laws exempting church property per se from taxation or the exemption, income deduction, of a contribution to a church. But the question I asked this afternoon was the exemption of a church from paying income taxes which every other institution has to pay.

Mr. DAIKER. Yes, sir.

Senator HRUSKA. Those are all the questions that I have right now, Mr. Chairman.

Senator BAYH. Are there any further questions? Mr. Daiker, you have certainly subjected yourself to a friendly ordeal.

Senator TYDINGS. Mr. Chairman, I think we ought to commend the witness for his forthrightness under what is not the easiest of circumstances. I think he made an excellent witness. I think he should be commended.

Mr. DAIKER. Thank you for your kindness, gentlemen.

Senator BAYH. The next witness, Mr. Minority Leader, do you care to proceed with him?

Senator DIRKSEN. Mr. Chairman, let me present Mr. Bazarian, who handled the Stein v. Oshinsky case which went through the district court in New York, and there they found for the plaintiffs, the children and the parents. It went on appeal to the Second Circuit Court in New York, and there it was reversed, and I do not believe there was a writ of certiorari requested, and so it did not go to the Supreme Court of the United States. But you lived with this very intimately, Mr. Bazarian.

Mr. BAZARIAN. Yes.

Senator DIRKSEN. So, in your own way, present your statement.

STATEMENT OF EDWARD J. BAZARIAN, ATTORNEY REPRESENTING THE PLAINTIFFS IN STEIN v. OSHINSKY

Mr. BAZARIAN. Thank you, Mr. Chairman and distinguished members of the committee, I am honored indeed to have been invited to share in these important deliberations.

I represented plaintiffs in the case of Stein v. Oshinsky-the "voluntary prayer case." The plaintiffs were infants attending