The opinion
REILLY, Chief Judge,
Retired (concurring) :
In joining in the holding that the challenged statute 1 denying validity to bequests for religious uses unless made at least 30 days before the death of the testator cannot be upheld under the Constitution, I agree with many of the observations made in the majority opinion. Nevertheless, I think that the decision should be rested on the ground that in enacting this particular statute, Congress did what it was forbidden to do by the text of the First Amendment providing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
This court, in contradistinction to some appellate tribunals, has been most reluctant to declare Acts of Congress unconstitutional in the absence of any controlling decision by the United States Supreme Court. Where we find it necessary to do so, it seems to me that whenever possible we should rely upon specific constitutional language more precise than the “due process” and “equal protection” clauses which lead inevitably to judicial consideration of such elusive concepts as rational legislative purpose, unreasonable classifications, and compelling state interests. 2
The making of a will, of course, is not a constitutional right, Irving Trust Co. v. Day, 314 U.S. 556 , 62 S.Ct. 398 , 86 L.Ed. 452 (1942), but one granted by legislative bodies. Accordingly, it has been widely recognized that states have the power to limit the rights of testators to make testamentary gifts which disinherit in whole or in part their next-of-kin — popularly referred to by probate courts as the natural objects of their bounty. Thus, statutes which insure spouses and dependent children a certain proportion of a testator’s property are not unusual. Statutes designed to protect against undue influence, e. g., the voiding of gifts to attesting witnesses, legal counsellors, etc., are also common even though they create an irrebutta-ble presumption of undue influence where, in fact, none may exist.
As Judge Mack has pointed out, the purpose of the statute here is not solely to protect the natural expectancies of the testator’s family from being defeated by substantial testamentary dispositions in favor of strangers or institutions. Its real vulnerability is that it singles out bequests for religious uses in contrast to bequests for charitable, educational, artistic, or humane institutions. According to appellees, the statute’s main purpose is to prevent advocates of traditional religions, particularly the clergy, from influencing the dying by holding out hopes of salvation or avoidance of damnation in return for generous gifts to further the practice of religion. But such an objective is precisely what the “free exercise” of religion clause of the First Amendment forbids, for it is premised upon the assumption that such representations are false and hence Congress can enact safeguards against their effect.
Thus, even though it could be proved (much less presumed) that agents of the two churches, whose legacies would be voided under the statute, secured these benefits by representations made to the tes *626 tatrix as death was imminent, the text of the First Amendment and judicial decisions construing it show that they had a constitutional right to make them. See, e. g., Jones v. Opelika, 319 U.S. 103 , 63 S.Ct. 890 , 87 L.Ed. 1290 (1943); Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870 , 87 L.Ed. 1292 (1943) (invalidating license fee statutes as applied to vendors of religious books and tracts); Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940) (striking down prohibition against unlicensed door-to-door solicitation of religious contributions), and Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963) (general economic regulation not enforceable if it imposes even an indirect burden on certain religious practices). Accordingly, the statute infringes on rights which the legatees had standing to assert and therefore cannot stand under the First Amendment.
. D.C.Code 1973, § 18-302.
. The Supreme Court of Pennsylvania fell into this morass in an opinion on a somewhat different mortmain statute, In re Estate of Cavill, 329 A.2d 503 (1974). See dissenting opinion of Pomeroy, J.