Thank you, Mr. Chairman, I will not take any more of the committee's time.

Senator JOHNSTON. Thank you, Senator Beall.

Congressman Eugene Siler, of Kentucky, wishes to present some testimony for our record.

STATEMENT OF HON. EUGENE SILER, A REPRESENTATIVE IN CONGRESS FROM THE EIGHTH CONGRESSIONAL DISTRICT OF THE STATE OF KENTUCKY

Representative SILER. Mr. Chairman and gentlemen of the committee, you may have already listened in this hearing to many good, sound reasons for keeping prayer in our public schools. And truly we believe that the Supreme Court's recent ruling goes beyond the whole concept of what our forefathers ever intended for our Nation by way of keeping church and state separate.

But what the Supreme Court and our Nation now need in seeking various decisions on moral questions, what our Congress itself needs in helping us make the laws of our country, is a foundation from which to start. The constitutional amendments that are being suggested, if adopted, would serve to legalize prayer and Bible reading in our schools. But if we do nothing about this there are many other ways in which our country might be weakened morally and spiritually by those who want to take God out of our oaths, prayers out of our congressional halls, chaplains from our armed services, "In God We Trust" off our coins. "This Nation under God" from our Pledge of Allegiance to the Flag, the Prayer Room from our Capitol.

We believe that what our Constitution needs is a fundamental change, something to guide all our courts in these different areas, and we believe we have it in the proposed Christian amendment which has been introduced by nine of us over in the House, and which has been introduced in five different Congresses here in the Senate.

A hearing on this proposed amendment was held here in the Senate before your Judiciary Committee on May 17, 1934, was acted upon favorably by your committee and was referred to the floor for consideration. That was in the 83d Congress, and the number of the measure was Senate Joint Resolution 87. Due to the shortness of the time after reference, the measure did not come up for discussion on the floor. But it did get that far, as indicated.

The measure which was approved by this Judiciary Committee in 1934 and which is the same measure that nine of us over in the House have introduced in this 87th Congress, reads as follows:

Section 1. This Nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God.

Section 2. This amendment shall not be interpreted so as to result in the establishment of any particular ecclesiastical organization or in the abridgment of the rights of religious freedom, or freedom of speech or press or of peaceful assemblage.

Section 3. Congress shall have power in such cases as it may deem proper to provide a suitable oath or affirmation for citizens whose religious scruples prevent them from giving unqualified allegiance to the Constitution as herein amended.

Now we believe that since the Judiciary Committee of this Senate once acted favorably upon this proposed amendment, and referred it

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out to the floor, it again should have similar favorable action from your present committee.

The numbers of the bills which the nine of us have introduced in the House are House Joint Resolutions 103, 189, 216, 243, 301, 434, 456, 599, and 602. And the Congressmen who have introduced them are from eight different States: Illinois, Maine, Kansas, New York, Kentucky, Ohio, Oklahoma, and two from Texas.

A number will be coming to testify for this measure, and we urge that they be heard, and their testimony entered in the records. And we want to place in your hands a copy of the resolution at this time.

Finally, it will be noted that this measure in no wise provides for taking any tax money from anyone to support any creed or church. Neither does the measure commit anyone to believe religiously in any particular manner. But our measure, recognizing the Christian complexion and attitude of the vast majority of our American citizenship, simply declares ours to be a Christian nation.

Your kind indulgence for this valued privilege of making the above statement is greatly appreciated. Thank you very much.

Senator JOHNSTON. I see that Senator Thurmond is present. Senator, we will have to suspend very shortly in order to go to the live quorum which is set for 12 o'clock. I hate to limit your time as much as you do, but I think I shall have to. If you would prefer you can wait until this afternoon.

Senator THURMOND. Mr. Chairman, I would rather present my statement now and go as far as I can with it. Senator JOHNSTON. As you prefer, sir.

STATEMENT OF HON. STROM THURMOND, U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. Mr. Chairman and members of the committee, it is a pleasure to appear before you today and testify on behalf of Senate Concurrent Resolution 81.

The Supreme Court decision in Engel v. Vitale, which prompted the introduction of this concurrent resolution has already received overwhelming disapproval by the people of this country. It is now incumbent upon Congress to go on record in disapproving this decision also. Senate Concurrent Resolution 81, which was introduced on July 2, 1962, by Senator Robertson on behalf of himself, Senator Talmadge, Senator Stennis, Senator Byrd of Virginia, Senator Byrd of West Virginia, and myself, is designed to do just that.

We are all familiar with this decision which held that a simple nondenominational prayer as devised by the New York State board of regents for recitation by the schoolchildren of that State who desired to say it was an infringement of the Constitution. This decision was arrived at by what I consider a misapplication of the first amendment to the Constitution, the pertinent part of which states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

This amendment is held applicable to each State of the Union under the provisions of the 14th amendment to the Constitution.

In order to determine the correct construction of this constitutional provision, it is necessary to study the contemporaneous events leading up to its adoption as a part of the Constitution. It is clear that the

framers of our Constitution were concerned about the prospects of a nationally established religion which would be a suppression of the free exercise of the religion of one's choice. Fresh in their minds was the practice of Great Britain and the officially established Church of England which all taxpayers were required to support by their tax dollars. This is the evil which the first amendment was designed to prevent.

The original proposal leading to the first amendment was introduced in the House of Representatives by James Madison, and read as follows:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretense, infringed.

This was altered in the House to read:

Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.

The Senate approved the following language:

Congress shall make no law establishing articles of religion.

The conference committee adopted, by and large, the House language, but added the neutral term, "respecting an establishment," to take the place of the sweeping ban against any law "establishing religion."

Explaining this phraseology, in his commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather "to exclude from the National Government all power to act on the subject."

Several of the individual States, populated almost wholly by people of the same religious faith, had, for all intents and purposes, recognized an established religion. This amendment did not, at the time of its adoption, even pretend to prohibit this practice. It was aimed exclusively at the National Government.

For many years after the adoption of the 14th amendment, there was no evidence of an intention to extend to the States, through the 14th amendment, the prohibitions contained in the first 10 amendments. These were matters remaining entirely within the realm of each individual State. The first indication of a shift in the Court's point of view was in the case of Gitlow v. New York, in 1925. By way of dictum in that case the Court stated:

For present purposes we may and do assume that freedom of speech and of the press which are protected by the 1st amendment from abridgement by Congress—are among the fundamental personal rights and "liberties" protected by the due process clause of the 14th amendment from impairment by the States.

This unsolicited and unnecessary dictum became the law just 2 short years later in the case of Fiske v. Kansas, wherein the Court invalidated a State law on the ground that it abridged freedom of speech contrary to the due process clause of the 14th amendment.

Subsequent decisions have brought within the purview of this doctrine other rights protected from infringement by the National Government which are contained in the first 10 amendments. The case of Cantwell v. Connecticut, decided in 1940, was the first dealing with the section of the first amendment which relates to religion.

This extension of authority by judicial decision over areas formerly reserved to the States closely parallels the expanded meaning which

the Court has given to the first amendment. For certain, this doctrine as applied to the States by means of the 1st and 14th amendments should be no broader than it was originally meant to be as it applied to the National Government.

As to its actual intent, Story further contended that the "no establishment clause," while inhibiting Congress from giving preference to any denomination of the Christian faith, was not intended to withdraw the Christian religion as a whole from the protection of Congress. He said:

Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of State policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

Cooley's interpretation of the establishment clause is as follows:

By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the Government should be prohibited from recognizing religion *** where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects.

These characterizations of the true meaning of the first amendment by renowned and respected scholars in the field of constitutional law apparently mean nothing to the Court today. It has a long and tortuous path from the decision in Cantwell v. Connecticut to Engel V. Vitale.

The basic constitutional principle involved has been stretched beyond the wildest imaginations. It is incumbent upon Congress to express itself as a body in disapproving of this decision.

This decision is dangerous enough as it applies only to the narrow question which was presented to the Court. However, the far-reaching effects of it when it is used as a precedent for future decisions is even more alarming. As has been the case so often in the past, I fear that Justice Douglas' far-reaching and unprecedented concurring opinion will become the law.

Should this occur, many well-accepted and time-honored observances will become unconstitutional. This includes the practice of beginning each day's session in both Houses of Congress with a prayer, the recitation of the beautiful prayer by the Cadet Corps at the U.S. Military Academy, the practice of opening each day's session of the Supreme Court with an invocation, the required impression "In God We Trust" upon our coins, congressional action in appropriating for Chaplain's Corps for the different branches of the armed services, and many other observances too numerous to mention. Extended to its illogical conclusion, this decision could result eventually in wiping out every official recognition of the Divine Being.

This would be tantamount to finding in the Constitution a requirement that the Government show a callous indifference to religious groups, a thing which Justice Douglas himself, in the case of Zorach v. Claussen, said could not be done. He further stated:

That would be preferring those who believe in no religion over those who do believe.

It would be, in effect, the establishment of atheism as our officially recognized religion.

This is the problem with which we are squarely faced. The people of this country have made known their disgust with this decision and by so doing have reaffirmed their faith in and allegiance to the Supreme Being.

I have received a tremendous amount of correspondence opposing this decision and requesting that some action be taken to rectify the matter. This is indicative of the fact that the United States of America is a country firmly established on a rich heritage of religious principles.

It is now our duty to take official action in expressing the sense of the Congress on the matter. In addition to this, steps must be taken to avert what could occur should this decision be even more broadly applied in the future.

I urge this committee to adopt Senate Concurrent Resolution 81. And again I wish to thank you, Mr. Chairman, and members of the committee.

Senator JOHNSTON. I am glad that we were able to stay and hear my colleague testify before we finished for today. Are there any questions or comments?

Senator HART. Thank you, Mr. Chairman. I do have one comment upon that decision of the Supreme Court. I know that it is quoted in full at the outset of this record, but I would like to ask leave to read part of one sentence from the majority opinion.

Mr. Justice Black is describing the emotions which caused Europeans to come to this country originally and he said they—

*** came to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.

I think that all of us want to do our utmost to make sure that is the kind of society we maintain and that when we talk about changing the first amendment let us recognize we are talking about something that has taken us a long way for a long time and we would be wise to consider most critically any change that is proposed.

Senator THURMOND. Mr. Chairman, I do not know whether the Senator wants any comment or not.

Senator HART. No. I am sure the Senator from South Carolina agrees that that was the motivation, and that that motivation and that tradition ought to be preserved.

Senator JOHNSTON. I think we all believe in prayer when we please and to the God of our faith, and there is no question as to our rights. there.

Senator HART. But we do not ask anybody else to join us.

Senator JOHNSTON. That is true. I am sorry the question has come up and I hope that none of us gets so heated about some particular issue that we will lose our way, so to speak, and and not do justice in this field.

The committee will stand adjourned subject to the call of the Chair. (Whereupon, at 12:10 p.m., the committee was adjourned, subject to the call of the Chair.)