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Yet, theologically speaking, Jesus was never more Jewish than when he uttered the Lord's Prayer. Every single concept in it is a summation of Judaism. Now whether psychologically that is observed or seen or felt in a community, it rests more on questions of strategy and policy than on constitutionality.

I am glad you started your statement, Senator, by saying, "As a lawyer." I think we have to make this distinction. First, what is legal; and, second, what is wise from a policy point of view in a given community? This can vary so much from community to community; and yet, leaving that as an open matter which men could discuss in terms of each school district depending on the makeup and the feeling of the people and their intentions. The legal and constitutional question still remains; that is, the very freedom to do that. In spite of the Court's application through the 14th amendment, of the 1st amendment to the States, I still think we cannot forget in our thinking this other secondary purpose of that establishment clause-to keep the Federal Government out of this very kind of weighing, theological analysis, and the psychological and public relations aspects of the matter and "the art of the possible"-which politics has been defined asand to leave this to local authority.

In terms of the honorable chairman's reference to more homework to be done which I fully appreciate-I would like to say for the record that in a short time in this sort of extemporaneous dialogue, obviously I have been somewhat "broad-brush" in some of these things. Some of my own statements could do with a little footnoting and qualification here and there.

I must say that in our seminar in church-state relations at Columbia Law School in which I was taught for 5 years, we took 2 hours a week for the whole semester to discuss these things, and hence I could be a little more precise than I have been able to be.

Senator KEATING. You have been very helpful, Bishop Pike.

At least this decision, if it served no other useful purpose, it has focused the attention of the Congress upon prayer which is certainly a desirable result in itself.

We are very grateful to you.

Bishop PIKE. Thank you, Senator.

Senator HART. Senator Scott?

Senator Scorr. Bishop, as a churchman of your faith and mine and as a lawyer, I agree that we are confronted by a problem which so far as the form of an amendment to the Constitution is concerned we admittedly, I think we should indeed, reaffirm the first amendment. more clearly if we can. I agree the question is wording and the question is, of course, what to do to get around the prohibition which we now have against a strictly prescribed prayer.

Former Representative Walker, of Michigan, when confronted by the Supreme Court's interpretation of acts of Congress used to say that whenever we passed an act, we should add at the end of the act, "By God, we mean it."

The "By God" part of it would be stricken out by the Court, too. Bishop PIKE. It depends on how he meant the phrase. Paradoxically enough, it might have a better chance of surviving as a swear word than if reverently meant.

Senator SCOTT. What disturbs me, among others, is the question raised by our distinguished Senator from Michigan, our chairman, and I think he has raised very serious and important questions when he asked a witness not long back what would be the situation if a State prescribed a prayer and chose the "Hail Mary" of his faith.

If the State is to prescribe a prayer, presumably it can prescribe any prayer, the Jewish or Catholic prayer or a prayer which attempts to be one of these things, and which is not theologically correct.

What is your reaction to that? It does concern me.

Bishop PIKE. I would think the adoption of the "Hail Mary," the "Ave Maria," even under my wording for an amendment would be a recognition of a given denomination as an established church. The Roman Catholics should be quite free to say this prayer; but it should not be selected, of course, as the official prayer for everybody.

Now, as to your second point, however, suppose in the very attempt to be "across the board" as this New York prayer certainly was, there is some concept put in it by those who prepared it which would seem heretical to a given religious body.

There is where I think this phrase I have been using comes in. I admit that the complete union of church and state, on the one hand, or the complete secularization of the state (as, for example, under the French Revolution on the other), is much more logical and neat and clean. You know where you are. But we have somehow in our tradition chosen this "middle way," a kind of "muddling through" in these things. I think we can rely pretty much on the way things work

out.

The very fact the New York prayer exempts those who do not want to participate would mean that a Confucianist-if there were such in a New York school-who doesn't believe in God at all—and yet it is a very respectable religious tradition-would view the prayer as a formality or he would have mental reservations or he would not participate.

In other words, in this "middle way" approach (and this describes the way of a number of our American ways of doing things outside of the church-state field), it is not possible to tie up absolutely everything.

I will grant that this prayer does not quite meet the needs of a Shintoist or a Buddhist-and we have more of those in my State than you do.

I am not so much urging that everybody get with it now and adopt this prayer as I am to leaving the freedom to the local authorities and States to work these things out in a sensible way.

It is interesting that the Roman Catholic Church's reaction almost unanimously to this decision has been to endorse this prayer.

Senator HART. Let me interrupt there to say that I know; I have heard it.

Bishop PIKE. And I mention that not just to add further authority to my position, though I am glad to do that too.

Senator SCOTT. One of our difficulties then is to find a way to spell out what we are trying to do, as I understand it.

Part of the difficulty I think you have raised in your conclusion when you say that our Constitution was meant to protect the minorities but was not meant to impose on the majority the outlook of any given, selected minority.

We in Congress are always expressing our concern about minorities and it is a Federal concern. The imposition of any given minority on the majority I am sure I entirely agree with you.

It might be their right to do it but if it is their right to do it, we ought to consider rephrasing our Constitution as to make clear whether we want that done or whether we have another way of approaching it. First, should we have a constitutional amendment?

In my opinion insofar as it is now formed, I think we should. But I am not at all happy with the wording of any of these proposed constitutional amendments.

Did you suggest the actual words that are in here?

Bishop PIKE. I did suggest a form of words. And by the way, I have been reworking those words ever since I first got into this matter because I keep seeing difficulties, too.

That is why I would endorse your distinguished chairman's advice of care in thinking about this very carefully. This form of wording is not infallible. I think it starts out all right. It gets at the two main problems. Have "establishment" say what it means and "religion" say what it means.

As to the precise point you mention, how can we be sure the Constitution protects the minority-true, the New York regulation did. But suppose some State had a regulation that did not so protect as was the case with the flag salute and where the Court had to write in the protection of the Jehovah's Witnesses?

I think "the free exercise of religion" works both ways. It is the freedom to be something and act upon it within limits. That does not want us to get very far, of course, but in general it is positive in that sense; but it is also negative. It is the freedom not to and this is made pretty clear in the case of the notary in Maryland where it was required that one has to believe in God to be a notary, and the Court struck that down.

Under "free exercise," he is free to think whatever he wants and act upon it, whether it is atheism or not. And before that decision I supported his position in an article I wrote in Coronet entitled, "The Right To Be an Atheist." That was in the last issue of Coronet before it went out of business. I think the free exercise clause probably is a protection here. I suspect all through the Bill of Rights we would find enough things that will protect that freedom. But if there is any doubt about that, I can see a rider put on that provides in no case should the voluntary character of any of these things be vitiated.

Now, what I really meant though by a minority imposing its position on the rest of us is this: Everybody has a religion, has a set of premises taken on faith by which he operates. It may be held or unconsciously held. It may be organized or in no way identified with a particular sect.

Everybody has a god or gods-Mammon, Venus, the Baalims, Mars, and so forth. The ancient gods are still with us. But if a man has only one God there is more chance a person will be an integrated person because his purposes can be coordinated.

Secularism is a religion. Communism and Marxism is a religion. Secularism is precisely an image of life which includes man and things without God, time and history without eternity, and so forth. Now, it is not neutral if by default we end up presenting that image in the school, never even suggesting a challenge to it or another dimen

sion. Certainly this little prayer isn't a great teaching of theology; it certainly is not; but it points to another dimension. When we leave all that out in the schools here or in public life we have a secularism by default, which is a position, not neutrality. There is no reason why this position should dominate all our public institutions, even though that is not what we intend and even though the secularist himself honestly thinks his position is neutral.

It is just as much an "ism" as the Seventh-day Adventism; it is an "ism" a position. So that I feel our kind of "middle way"-without compelling anyone or destroying any particular position in our society-still has maintained the crankshaft of Western civilization as something which is pointed to or is suggested as part of our institutions. I think this is terribly important because I have the conviction that some of our basic constitutional structures and institutions do rest on doctrines of the Judeo-Christian heritage.

I believe that the doctrine of separation of powers and the system of checks and balances rests on the doctrine of original sin, meaning not that we should govern ourselves because we are all so good, but rather than man with power is so capable of being bad-because of the selfcentering tendency in man. Power tends to corrupt and absolute power tends to corrupt absolutely, as Lord Acton reminded us.

I believe that our Bill of Rights itself rests upon the valuation of the individual in terms of his calling to eternal life; that the individual can last forever, and the Nation does not necessarily. Nations come and go; persons are called to eternal life and therefore, the individual is more important than the Nation.

Therefore, we put up with inconvenient people-bulls in the china shop. We recognize the right to be wrong. In the Soviet system, for example, with no such concept they have the priorities reversed. They believe that the Communist state is eternal and that the individual dies like a dog; and hence you shove people around and say "shape up or ship out"; you can "liquidate" them. Under their basic doctrine, that conclusion is logical.

Third, I believe that our conviction that there is a common source of conscience means that since there is a policeman in every heart and we needn't have a policeman on every block; we do feel there is some basis of reliable common life from a dimension other than a police state.

In the Soviet system they can only rely upon that kind of pressure to keep the people in line. We hope we can keep people in line through an internal spiritual source which points to the same author. Not every American agrees with those views, but I do believe that the formation of our fundamental American institutions rests upon the fact that from the beginning our culture has been drenched with this kind of thinking and outlook.

Therefore, quite apart from advantage to sound religion, for the sake of the Nation and the continued holding on to these things I think our leaving these religious customs in our common life is as pointers which suggest this frame of reference, is quite fundamental.

Senator SCOTT. It seems to me we have to avoid this problem of physics, the irresistible force of the belief in a supreme being but then the immovable object of the atheist who says there is no God.

Can we, in your opinion, say that your words respect the problem of the atheist?

Bishop PIKE. I believe we must respect the problem of the atheist and fortunately I am on record on that in my article in Coronet on "The Right To Be an Atheist." The protection of the atheist or any other minority out of line with the Judeo-Christian tradition I think comes within the terms of the boundaries of these things. Suppose an atheist in this House feels it very strongly-I mean he isn't just a kind of lapsed Protestant or something; he really has a feeling about this. Well, he certainly is not going to be present for the early Senate exercise with his head devoutly bowed in prayer. He would just skip out on it. Why should he go anyway? It is set up that way. I am not suggesting that our distinguished chairman's confession that he is not always there makes it possible to so describe him. But a lot of people are not in church every Sunday morning anyway.

So the voluntaryism is already operative in this area and anything which would interfere with that does raise serious questions.

For example, one of the things often cited to support the middle way is that there is the compulsory chapel program at West Point and Annapolis. I have never used that as an example because I think this is getting us in deep water. I am not sure that in the last analysis I could support that.

Suppose an atheist who wants to serve our country goes to one of the academies. I suspect that if it came to a court case, even under my proposed wording of the establishment clause, under the "free exercise clause he would not be supported.

Senator ScoTT. You mean he does not believe in God but where the Navy is concerned, he believes in the Army; is that right? The compulsory chapel at West Point, you might have a man who does not believe in God, but as far as the Navy is concerned he believes in the Army.

You would not impose compulsory chapel upon him necessarily. Bishop PIKE. No. In fact, I do not like compulsory chapels in institutions of higher education.

Senator SCOTT. I wish there were some way of providing a chaplain for the Supreme Court, but I do not know how many you would have to include. Perhaps if we added another member to the Court that would do it, and provided it would be a chaplain. You know, there is no provision that they be lawyers, as you know.

Bishop PIKE. I had not realized that.

Senator ScoTT. That is all I have.

Senator HART. Senator Robertson?

Senator ROBERTSON. Mr. Chairman, members of the committee, as all of you know, I find the study of our early American history a fascinating one.

I agree with Thomas Jefferson that if we are to interpret our Constitution correctly we must consider the times as they existed when it was written. As Ezekiel said when he was called to rule over Israel, "I sat where they sat, and remained there astonished among them 7 days."

When Jefferson drafted his bill establishing religious freedom in Virginia, it was to keep the Church of England from dominating the clergy in Virginia. It was to erect what has been since called a wall between the church and state which would prevent the state from taxing everyone to support a state-designated church.

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