The Seventh-day Adventist opposition to U.S. diplomatic recognition of the Holy See is not based on anti-Catholic bigotry. No one can deny the current Pope's efforts to promote peace and his speeches supporting human rights. These endeavors are not in question. The Pope's status as a significant international figure is not the issue. The basic problem is the First Amendment to the United States Constitution and diplomatic relations with a church. The Roman Catholic Church sends a nuncio (ambassador) only when that country will give him the status of dean of the diplomatic corps. Knowing that this is not feasible in the United States, Rome will probably send a pro-nuncio (ambassador of slightly lower rank). The Catholic Church's desire for diplomatic deanship (recognized in 1815 by the Congress of Vienna) reflects its traditional concept of Catholic Church supremacy over the state. 31-309 0-84--5 Mr. SMITH. Thank you very much. The committee will recess until 1:30. JOHN BAKER, GENERAL COUNSEL, BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS Mr. SMITH. We will resume the hearing. The first witness is Mr. John' Baker, General Counsel, Baptist Joint Committee on Public Affairs. Mr. BAKER. Mr. Chairman, I did submit this morning an extended statement that I hope the committee members will have an opportunity to read before they make their decision. The second thing is one of my staff members told me I had better make this explanation-I was a constitutional professor for some 27 years, teaching law and I tend to come on lecturing. If I sound that way, it is me and not anything else. I am John Baker, and I am the General Counsel of the Baptist Joint Committee on Public Affairs, which is composed of representatives of eight national cooperating Baptist conventions and conferences in the United States, with a current membership of nearly 30 million members. This testimony on the Department of State's request for a reprogramming of its appropriations to permit it to spend substantial amounts of public funds and perhaps as much as $1 million annually to start, to staff and operate an Embassy in the Holy See contends that, first of all, the appointment of any Ambassador from this Nation to the Holy See in itself is bad public policy, which will create a multitude of problems, some obvious and others as yet only potential. We object to this reprogramming request for the following policy reason. First of all, as you have heard this morning, it would violate this Nation's historical principle of separation of church and state. I think it also would signify this committee's approval of the circumventing of the democratic Congressional process. I am sure you are aware that in neither the House nor the Senate were there any substantive hearings held on the bill. Mr. Lugar attached his bill, which had no hearings in the Senate, as a rider to the authorization bill, and this amendment was adopted in conference in a package with a dozen others, and there was no debate, as you know, when it came down to the Floor. It was on an up or down basis, and there was no debate in the House, on the Floor, at all or in the Senate, and no discussion of cost to the public or of the constitutional issues ever took place. I think there is a legitimate question which can be raised as to whether the removal of the ban on an Ambassador to the Holy See constituted a substantive authorization for which funds may be legally reprogrammed, but even leaving that issue aside, the propriety of the requested program may be questioned. When the reprogramming process was developed in the early 1970s, its purpose was to allow the administrative agencies to finetune their programs. It was never intended that it be used to allow the introduction of new and controversial programs of doubtful constitutionality like this nearly $1 million scheme. By refusing this reprogramming request, the committee could provide for the proposed Ambassadorship to go through the normal well-tried democratic processes. Also, we say that it would seriously jeopardize the missionary program of religious organizations. I wish I had time, but this is not my expertise. The statement does say something about this, and I hope you will look at it carefully, but our contention is that, should the committee follow the unwise course of permitting the funding of the establishment of full diplomatic relations with any church, it would offer an occasion for misunderstanding, an invitation to chaos and confusion, and would place a burdensome albatross upon every American who represents religion overseas. Our second point is that granting the request for reprogramming is a policy decision within the prerogatives of this committee. So is denial of that policy decision one that is your prerogative. You cannot avoid making public policy on this matter, and we urge you to made good, sound constitutional policy. But my own expertise is in the field of constitutional law, and I feel that a reprogramming of the State Department funds to permit anyone to serve as Ambassador to the Holy See is fraught with First Amendment problems. The establishment clause has been well-litigated, and the established precedents which are relevant to the issue under consideration today clearly. Perhaps the simplest statement was made by the Court in Everson, and I am going to read it. It is there, but I think it says it so well. The Court said, "The establishment of the religion clause of the First Amendment means at least this. Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions or prefer one religion over another. "No tax in any amount large or small can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion. "Neither a State for the Federal Government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa.' The Supreme Court has developed a three-pronged test to determine when State action is not violative of the establishment clause. They say that the action must reflect a secular purpose, the principal or primary effect of the action must not be either to advance or inhibit religion, and the action must not excessively entangle government with religion or foster divisiveness along sectarian lines. I would like to look at these real quickly with you, because the Courts will generally assume a secular purpose when Congress passes an Act. However, this subcommittee, as a part of co-equal Branch of Government, needs to examine its purpose in the instant matter. I quote in my statement from Cardinal Cardinale and his book, which is entitled, "The Holy See and International Order," but I think one of the witnesses today talked about the nature of the Holy See, but simply from his own definitions, where he defined it in three different ways. It becomes clear that any Ambassador to the Holy See is nothing less than an Ambassador to the Roman Catholic Church. In that case, Congress' purpose whether it was conscious or not was really just nonsecular. The second test, the appointment of the Ambassador to the Holy See fails by selecting one church for recognition, special recognition, the Congress is expressing a preference for one church over the others. This it cannot do, and still abide within the parameters of the First Amendment. Third, and it is on this third prong of the test that the unconstitutionality of an appointment to the Holy See becomes most evident. The degree of entanglement of government and religion created by government sending an Ambassador to the Holy See is clearly excessive. The stated purpose of an Ambassadorship is to tap into the church's vast information network. This is patently entanglement. "America," a Jesuit magazine, editorialized in its December 24, 1983 issue on the appointment of Ambassador to the Holy See, and the editors expressed concern that an Ambassador to the Holy See would seek to exert pressure on the church to control the activities of the American church. This, too, is an entanglement of a high order. Also, the divisiveness along sectarian lines which this action has engendered is both widespread and deep. The very presence of many witnesses here today who are voicing opposition on religious liberty grounds against reprogramming which would permit the appointment of an Ambassador to a particular church is clear evidence that the issue before us today has produced divisiveness along sectarian lines. In my full text, I briefly answer the major arguments given in support of the Ambassador being sent to the Holy See. Time prevents me from covering them all here, but I am constrained to answer one of them, and that is that the opposition to full diplomatic relations with the Holy See is an expression of anti-Catholic bigotry. This may be true in some instances, but it is unfair to paint all opponents with the same brush. The main thrust of our opposition is support for a clear separation of church and state. We would object to the appointment of an Ambassador to the Archbishop of Canterbury, who heads the Worldwide Anglican Church, or to the World Council, with its vast network of churches. The principle is the same. Both church and state function at a higher level when they are effectively separated from each other. Even if one assumes that despite its haste and undemocratic procedure in repealing the 1867 Act, Congress had good motives in opening the door to having an Ambassador to the Roman Catholic Church, we are reminded by the Court that "good motives cannot save impermissible actions." The good motives of the Congress cannot make this action permissible. For the reasons stated above, we request that this subcommittee refuse to grant the Department of State's request for the reprogramming of its funds. [The statement of Mr. Baker follows:] State Department Request for Reprogramming of Funds for the Establishment of an Ambassadorial Relationship with the Holy See before the SUBCOMMITTEE ON COMMERCE, JUSTICE, STATE, UNITED STATES HOUSE OF REPRESENTATIVES February 9, 1984 I am John W. Baker, General Counsel of 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: 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. million. These groups have a current membership of nearly 30 Through a concerted witness in public affairs, the Baptist Joint Committee seeks to give corporate and visible expression to |