PRAYERS IN PUBLIC SCHOOLS AND OTHER

MATTERS

THURSDAY, AUGUST 2, 1962

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to call, at 10:35 a.m., in room 2228, New Senate Office Building, Senator Philip A. Hart presiding. Present: Senators Hart, Dirksen, Keating, and Scott.

Also present: Senator John Stennis; Senator A. Willis Robertson, and L. P. B. Lipscomb, member, professional staff.

Senator HART. The committee will be in order.

First, I should indicate that the distinguished chairman, Senator Eastland, had planned and had anticipated being present and acting as chairman of the hearing this morning. However, he was called to an executive department not many minutes ago. For that reason he will not be able to open the meeting and may not be able to return in time to participate.

This hearing is a resumption of the hearings on several resolutions relating to prayers in public schools which have been offered.

Before hearing our first and very distinguished witness, the committee is delighted that two senior and effective Members of the Senate who have a keen interest in this matter before the committee, an interest which they have expressed in testimony at our first hearing, are present this morning.

We are glad to welcome the Senator from Mississippi, Mr. Stennis, and the Senator from Virginia, Mr. Robertson. If they have any supplemental or annexes that they would like to file to last week's testimony, we would be glad to have it.

I do hope the gentlemen will be able to stay with us and participate in the discussion as we go along.

Senator Robertson?

STATEMENT OF HON. A. WILLIS ROBERTSON, A U.S. SENATOR FROM THE STATE OF VIRGINIA

Senator ROBERTSON. Mr. Chairman, I have read the statement to be made by Bishop Pike. He suggests an amendment to the Constitution which would clarify the meaning of the first amendment so as to prohibit the enactment of a law that would recognize any particular sect or denomination or religious organization as the established church of the country and at the same time to permit the Government to recognize the existence of God. That is all I am interested in and I think the bishop has proposed the best wording. I

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am inviting the help of the outstanding constitutional lawyers of our Nation to suggest wording that will preserve the fundamental principle of the separation of church and state and yet throw a roadblock in front of the Supreme Court, if its intention be, as indicated by Mr. Justice Douglas in his concurring opinion, to take us down the broad highway of secularism until, from a religious standpoint, there will be no material difference between our Government and that imposed upon the Soviet Union by the Politburo.

Senator HART. Thank you, Senator.

Senator Stennis?

STATEMENT OF HON. JOHN STENNIS, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

Senator STENNIS. Mr. Chairman, I have no additional argument to make today.

But I want to point out that Bishop Pike's statement here today as well as one made on previous occasions when he made a speech on this subject contains what I think is a very practical and a highly desirable suggestion wherein he has spelled out a proposed amendment to the first amendment to the Constitution in which he would define just what the wording in the first amendment means when they refer to the establishment of religion.

The bishop's definition of what he would substitute there is in his statement today and, of course, I will not anticipate his presentation of it except to say that I join with him in commending to this committee that what he has to say be incorporated in the amendment that I proposed.

Senator HART. Thank you, Senator Stennis.

Our first witness is a very distinguished American, the Rt. Rev. James A. Pike, bishop of the Episcopal diocese of California.

Senator HART. I should emphasize that Bishop Pike is a lawyer, a member of the bar of the U.S. Supreme Court.

The bishop taught for 5 years in the field of church-state relations at Columbia University Law School as adjunct professor of religion and law while dean of the Cathedral of St. John the Divine in New York City.

After admission to the California bar, the bishop received his doctorate in the field of Federal procedure at Yale Law School.

Here we have the very unusual combination of lawyer and churchman, a man whose willingness to participate in not always uncontroversial public questions has not gone unnoticed.

The committee is most appreciative, sir, that you would take the time to give us your views.

As the Senator from Virginia has indicated, you have a prepared statement and I hope you will feel free to read it in any manner you choose, interrupting yourself, adding comments as you go along. Please feel free to present your statement in any form.

STATEMENT OF RT. REV. JAMES A. PIKE, EPISCOPAL BISHOP OF THE DIOCESE OF CALIFORNIA

Bishop PIKE. Thank you, Mr. Chairman. I am honored, indeed, to have been invited to share in this important deliberation.

I am honored, also, with the presence of the other Senators here. As I have done my homework on this subject, I knew, in connection. with this occasion, that I could not help but feel we are in the same kind of historic moment as our forefathers were as they very carefully debated these matters and polished the wording and thought they had made it very clear, though they had not counted, I gather, on the Supreme Court in the meanwhile, and, hence, our opportunity now to go further with their work to achieve their intentions. Their intentions, I think, are historic and very inspiring.

The American approach to relationship of religion to the Nation has steered clear of church-state union on the one hand and secularization of public life on the other.

We have, unlike countries which have chosen these other ways, steered a middle course reflected in virtually all aspects of our public life, including our schools: a recognition of dependence upon Almighty God and of the fact that He is the highest reality and not the

state.

The constitutional protection for this approach is the 1st amendment, taken in connection with the limitations of the 10th amendment. I might remind the distinguished Senators that this, in short, is our States rights amendment. It makes clear those things not specifically given to the Federal Government by authority, are reserved to the States and the people.

When we take the very limited terms of the 1st amendment, there are two parts the establishment clause and the free exercise clause; and if we add that to the 10th amendment, this would seem to provide a sufficient safeguard for what I have been calling in this dispute "the middle way."

I believe earnestly that the Supreme Court has distorted the meaning of the first amendment. What our Founding Fathers were trying to avoid by the establishment of religion clause was the setting up of a given denomination as the established church of the country.

I might pause for a moment to verify that. I might say that the best single collection of materials and quotations and as many of you know is in the three-volume work by the Reverend Phelps Stokes, former secretary of the Yale University and canon of Washington Cathedral, on church and state in the United States.

When you are taking a plane trip, it is very convenient to bring the book that has the most in it. I have sort of filed this book by title, but it covers the whole matter very thoroughly. This book covers the debates on the first amendment, and its wording which are reported in the annals of Congress of that period and in committee minutes; and all this is quite revealing.

Much has been made of Mr. Madison in this regard by those who would seek to support the Court's view, and yet Mr. Madison seems almost clearest of all as to what was really meant. For example, he pressed very hard to insert the word "national" before "religion"that is, barring the establishment of a national religion.

The reason that failed is very interesting. It was not because of this point at all, but because many of our Founding Fathers were not yet sure we wanted to use the word "national." They wanted to stress the word "Federal" rather than the idea that we were a nation. This is reflected in the use, in the early days, of the phrase "these United States"-where today we tend to say "the United States."

Nevertheless, the fact that he wanted the word "national" makes even more clear he was talking about an established church in the normal sense as understood by everybody at the time.

The fact is that the establishment of my church in England was not unknown to our Founding Fathers, and this is the sort of thing they were talking about.

This, then, is the minute on Mr. Madison's words:

Mr. Madison thought that if the word was inserted before religion, it would satisfy the minds. He feared that the people feared one sect would obtain preeminence and establish a religion to which they felt others were to conform. He felt if the word "national" was inserted, it would direct it toward the object it was intended to prevent.

It is interesting that the first draft in the Senate submitted to our distinguished predecessors would have supported the Supreme Court decision because it barred the setting up of a "mode of worship." And this was roundly defeated, because they were not talking about things in general; they were talking about a regularly established church, which meaning everyone understood.

Mr. Madison also did not hesitate to proclaim fast days and Thanksgiving Day and refer to God, providence, and the like, quite fully.

Mr. Madison was also a member of the regents, or overseers, of the University of Virginia and sat in on the meetings which voted there should be a room for prayer and worship on the campus, a proposal of Mr. Jefferson, and supported by Mr. Madison, all of which would seem to indicate that he was not thinking in the terms now attributed to him.

Likewise, his life, written by Mr. Brant, makes the point that he wanted legal equality among sects, and he uses freely the word "sect," or "church," in that instance.

Now I would quote, in this connection finally, that distinguished constitutional historian, Judge Story, who made clear that the purpose was

to exclude all rivalry among Christian sects and prevent any national ecclesiastical establishment which would give, to any hierarchy, the exclusive patronage of the National Government.

Now there was another purpose of the establishment clause which hangs on the word "respecting." It did not say Congress shall not establish a religion. It said it shall not pass any law respecting the establishment of a religion. The reason for this is that a number of States had established churches and it was known it would take some time to iron these matters out-this delicate matter of the relationship of the church and the state.