"The first amendment, however, does not say that in every and all respects there shall be a separation of church and state. * * * That is the commonsense of the matter. Otherwise the state and religion would be aliens to each other: hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection of religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls: the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths; these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the first amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this honorable Court.' a religious people whose institutions presuppose a Supreme (Supra. pp. 312–314).

"We are Being *

The application of the establishment clause to religion in the general sense was discussed at some length in a House Judiciary report of 1854 rejecting the petitions of citizens of several States that "the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Congress, be abolished" (U.S. House Reports, vol. 2, No. 124, 33d Cong., 1st sess., 185354).

Mr. James Meacham of Vermont, reviewing the reasons for the committee's decision to reject the petition, wrote as follows:

"Another article supposed to be violated is article I of amendments:

66

'Congress shall make no law respecting an establishment of religion.' Does your present practice violate that article? What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rites and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an established religion without all these" (supra).

The report continues further:

"The first Congress under the Constitution began on the 4th of March 1789; but there was not a quorum for business till the 1st of April. On the 9th of that month Oliver Ellsworth was appointed, on the part of the Senate, to confer with a committee of the House on rules, and on the appointment of Chaplains. The House chose five men-Boudinot, Bland, Tucker, Sherman, and Madison. The result of their consultation was a recommendation to appoint two Chaplains of different denominations-one by the Senate and one by the House to interchange weekly. The Senate appointed Dr. Provost, on the 25th of April.

"On the 1st day of May Washington's first speech was read to the House, and the first business after that speech was the appointment of Dr. Linn as Chaplain. By whom was this plan made? Three out of six of that joint committee were members of the Convention that framed the Constitution. Madison, Ellsworth, and Sherman passed directly from the hall of the Convention to the Hall of Congress. Did they not know what was constitutional? *** The convention of Virginia elected on its first day a chaplain-Rev. Abner Waugh-who every morning read prayers immediately after the ringing of the bell for calling the convention. No one will suppose that convention so inconsistent as to appoint their chaplain for their own deliberative assembly in the State of Virginia, and then recommend that this should be denied to the deliberative bodies of the Nation" (supra).

FOURTEENTH AMENDMENT NOT INTENDED TO PROHIBIT PUBLIC NON SECTARIAN PRAYERS

There is some question whether the due process clause of the 14th amendment applies to the States the same prohibition which the 1st amendment places upon the Federal Government. The decision of the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940), appears to extend these prohibitions to the States. But a recent case, Bartkus v. Illinois, 359 U.S. 121 (1959), casts doubt on the nature and extent of the Court's pronouncement in the Cantwell case.

In the Bartkus case, the Court upheld a State prosecution for violation of its own penal law after the appellant had previously been acquitted by a Federal court on substantially the same evidence. It was argued that this violated the double jeopardy provision of the 5th amendment, made applicable to the States by the 14th amendment.

The Court declared:

"We have held from the beginning and uniformly that the due process clause of the 14th amendment does not apply to the States any of the provisions of the first eight amendments as such. [Citing cases.] The relevant historical materials have been canvassed by this Court and by legal scholars. [Citing Fairman. 'Does the 14th amendment incorporate the Bill of Rights? The Original Understanding,' 2 Stan. L. Rev., 5.] These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the 14th amendment was a shorthand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." (Bartkus v. Illinois, 359 U.S. 121, 124.)

The Blaine amendment

The history of the Blaine amendment of 1875 indicates that the Congress did not contemplate that the 14th amendment was a shorthand incorporation of the first eight amendments.

In 1875, James G. Blaine, who as the Republican presidential candidate opposed Grover Cleveland in the campaign of 1884, was a Member of the House of Representatives. On December 14, 1875, Blaine introduced a constitutional amendment which would have extended to the States existing restrictions upon the Federal Government with regard to the establishment of religion or the interference with the free exercise of religion.

The Senate version of the amendment provided in part:

This

"No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State ***. article shall not be construed to prohibit the reading of the Bible in any school or institution ***" (4 Congressional Record 5453).

The Blaine amendment passed the House on August 4, 1876, by a vote of 180 to 7. The Senate, after adding the sentence relating to Bible reading and making other changes, approved the amendment by a vote of 28 to 16, but not by the necessary two-thirds vote.

Clearly the Members of the 44th Congress-and in particular, those who like Blaine had been in Congress when the 14th amendment was adopted less than 10 years earlier thought that the 1st amendment was not applicable to States. Beyond any reasonable doubt, they did not consider themselves engaged in an idle and meaningless repetition of an amendment less than a decade old.

Furthermore, the Senate specifically revised the Blaine amendment to make it clear that this proposal would not prohibit the reading of the Bible in any school or institution. Clearly, the Senators who urged and agreed to this protection for the reading of the Bible did not think that the 14th amendment had already prohibited the reading of the Bible in State schools.

A DECISION WITH BROAD IMPLICATIONS

Three cases are now before the Supreme Court which offer ample opportunity for the Court to enlarge upon its recent misconstruction of the establishment clause. Some have claimed that the Court's decision in the New York case would not outlaw the use in public schools of the Lord's Prayer. But that is the specific issue in Murray v. Curlett, the pending case from the Court of Appeals of Maryland. That State court held against the petitioner, but the U.S. Supreme Court granted her a writ of error.

The most comprehensive of pending test cases is the Florida case of Chamberlin v. Dade County Board of Public Instruction. In this case, appellees seek to be relieved of the daily reading of a brief passage from the Bible. In addition, they also seek to be relieved of the singing of hymns in music classes, the painting of pictures on religious themes, the decoration of schoolrooms at Christmastime, the saying of grace or other prayers at school functions, and the holding of baccalaureate ceremonies at commencement.

The implications of Engel v. Vitale are not limited to religious activities in the public schools. It is conceivable that the Supreme Court in the near future will be hearing petitions to strike the phrase "In God we trust" from the currency, to sever the words "Under God" from the Pledge of Allegiance, to repeal the act of Congress establishing "The Star-Spangled Banner" as our national anthem, and to abandon the recitation of the prayer with which each session of the Supreme Court itself is opened-all on the ground that the Constitution forbids any such recognition of God. Obviously, the implications

of Engel v. Vitale are as unlimited as the references to the Deity in our civic affairs.

PROPOSED REMEDIES

With few exceptions, congressional sentiment has run strongly against the Supreme Court's decision.

On July 2, 1962, I introduced a Senate joint resolution, which states: "*** That it is the sense of the Congress that the designation by a public school authority of a nonsectarian prayer for use, as a part of the activities of a public school, does not constitute an establishment of a religion or an infringement of the doctrine of separation of church and state in violation of the Constitution of the United States, if participation in the offering of that prayer by individual students is not made compulsory."

Other Members of Congress have introduced constitutional amendments, which, if approved, would nullify Engel v. Vitale. We must consider and act upon an amendment to the Constitution which will leave no doubt that America is determined to remain a nation which has a "firm reliance on the protection of divine providence."

This is still a republic in which the declared will of the definite majority can be made to prevail. Regardless of the fact that the Supreme Court has power to say what the Constitution means and to use force to carry out its decision, as long as we remain a republic the people can, as Jefferson said, by the process of amendment, bind any Government officials, including the Supreme Court, by the chains of the Constitution.

I recommend the adoption by the Congress and ratification by the States of an amendment to the Constitution which, while fully protecting the fundamental principle of separation of church and state, will permit in the future, as in the past, Government officials to recognize publicly that we are a religious nation.

Senator ROBERTSON. I shall not dwell upon the history of prayer in the schools, because Senator Stennis covered that quite fully and very extensively.

I was interested in the question asked by the distinguished Senator from Michigan about the Lord's Prayer. That is the issue in the Maryland case. There, an atheist woman said that it embarrassed her son to be asked to recite the Lord's Prayer, but the Court of Appeals of Maryland said that for many years Maryland had had a provision that when you open school you either read a passage from the Bible or recite a prayer, and that it was being done legally, and no minority group has a constitutional right to be prevented from being embarrassed by what is legally done.

Senator Stennis said, and I think properly so, that if you cannot voluntarily use in a school a 22-word prayer that says, "Oh, Lord, bless our country, bless our teachers, and bless us," how can you use a prepared prayer which was prepared by one who is not accepted by a very large group in this country? I say to you, my friend from Michigan, again suppose that this atheistic woman, who has been granted certiorari by the Supreme Court-I do not know what is going to be done by the Court-I hope that we will take some action that will assure us what we can do and, let me say that Justice Douglas heard all of the arguments, did he not-he heard all of the discussion in chambers and what does he say, that the real meaning of this decision is to outlaw, I believe, 19 different things, and that includes the Lord's Prayer, "In God we trust," over the south door of the Senate and, "God smiles on this undertaking," over the east door of the Senate. We would have to take those down and to remove any reference to God from the coins and the pledge of allegiance and to abolish the chaplains in the Senate and in the House. Justice Douglas says that the decision goes this far,

but I want to remind the distinguished members of this committee that so far as I know it has been the law of Maryland ever since it has been a State that there can be no legal marriage in that State except by a minister of a recognized church. All right, now, suppose that this atheist woman decides she wants to marry again and does not want to be embarrassed by a minister of the church who believes in God-she wants a civil ceremony. Will the Supreme Court strike down the law, and say to her, "We will not embarrass you"? And will the Court go on and say all marriages by clergymen are invalid? Senator HART. I cannot respond to the marriage question, but to clarify our thinking and to assist the record, what if the prayer that was cited in the Maryland school had been the "Hail Mary would not some nonatheist object to that? What would the law be on it?

Senator ROBERTSON. Well, I am not familiar with the “Hail Mary" or what is in it. However, I think that if it is voluntary, there might be no more objection to the "Hail Mary" than to the Lord's Prayer. And in addition to that, my distinguished colleagues, I do not know whether you have ever hunted or trained bird dogs or not, but I have done a lot of it for 60 years, and it is just as important to train that dog what not to do as it is to train him what to do.

You can teach a child by forbidding something, just as much you can teach him by telling him what he should learn.

In the Florida case I mentioned in my statement, the petitioners objected to singing "Holy Night" in the schools at Christmas. They say that you cannot sing "Holy Night" they say they do not believe there is such a thing as a holy night-that is a Christian song that they want outlawed.

Senator HRUSKA. If I may interrupt. Apropos of Senator Hart's statement, I want to say that there is no man whom I have greater respect for in the Senate than the witness. I am prepared to assist him with the conference report on that little appropriation bill of only $6 billion in a few minutes. But suppose we reconsider the question of the Senator from Michigan and instead of putting it in terms of a voluntary recital of a "Hail Mary" in a grade school, we put it in terms of the case of Engel v. Vitale, where the respondent board of education-and I am quoting now

directed the school district's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each schoolday. Instead of a nondenominational prayer of just 22 words, if it had been a "Hail Mary" that was to be given, what would be your judgment in that case, Senator Robertson?

Senator ROBERTSON. In my judgment, if it is voluntary, it is legal. Senator HRUSKA. But, you see

Senator ROBERTSON. The prayer is voluntary. It is not used in the New York City schools. Local school boards do not have to use it. And any student that wants to be excused is excused. What are we dealing with? The first amendment. What does the first amendment prohibit? The establishment of religion or interference with the free practice thereof. Free practice of religion was not interfered with because the prayer was voluntary. What is establishment of religion? It is the church. So the Supreme Court has written something into the law that is not there, just as it did in Brown v. Board

of Education, where they said that the 14th amendment prohibited segregated schools. This was never in the law. The Supreme Court wrote it in there. And the Court is trying to write this in there, too. And they are going further, mark my word. A great lawyer from California, an Episcopal bishop, has said that the essence of this decision is to deconsecrate this Nation, to secularize it—that is the essence of it, but I want to get back to the amendment.

Senator HRUSKA. Will you yield further?

Senator ROBERTSON. Yes.

Senator HRUSKA. The remarks which the Senator has made speak of the voluntary use of a "Hail Mary" in schools, but the Supreme Court was deciding a question in which a prayer was directed. It was not voluntary but ordered by regulations. The teacher had to say that prayer at the beginning of each schoolday. It is to that situation I would like to direct your attention.

Senator ROBERTSON. The first thing I say is that anybody who wanted to, could be excused. The atheist woman in the Maryland Case stressed not only the fact that the teacher was a State employeethat the reading came from a Bible which she repudiated-she also stressed the fact that to be excused embarrassed her child. And the Maryland Court of Appeals said:

You have not any legal right to complain of this embarrassment, because in this case the majority is doing what the majority has the right to do.

She went to the Supreme Court, and what did the Court do? It granted her certiorari. And I know that the fine lawyers on this committee realize that when the Court grants certiorari to review a decision, they think enough doubt is in it to justify another hearing. They would not grant it otherwise. They granted certiorari. They granted it in the Pennsylvania case; they will probably grant it in the Florida. case. And that case involves not only prayers in the schools, but as I say, religious paintings, Christmas hymns, the whole thing.

What did Thomas Jefferson say about construing the Constitution? He said that our Government is a government of delegated powers. Consequently, when the rights of the States, which are fully reserved under the 10th amendment, or the rights of the people are involved, the Constitution should be strictly enforced and construed. He adds this very pertinent point-and I tell you this Court has deliberately ignored this fundamental principle of construction—he said that on every question of construction the Constitution should be interpreted according to its meaning to those who adopted it, instead of trying to determine what meaning may be squeezed out of the text or invented against it, to conform it to what the Court wants it to mean.

What was the complaint in Virginia about the church? It was that the Church of England had been established as a state church and everybody was taxed to support it. My ancestors were Church of England men, but they sided with Jefferson. They pulled out and joined the Baptist Church and were put in prison for doing it. We wanted to establish a difference between religion in government, and government in religion. So we supported a provision for religious liberty which said that Congress shall enact no law relating to the establishment of religion. That is what it meant, a particular church. That is what they aimed to prevent.