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states that “prayers may be offered in the course of any program in any public school or other public place in the United States." For the reasons we have stated in our introduction, we oppose all religious practices in the public schools. But, as to this particular bill, it seems obvious that by ignoring both the question of compulsion and the question of nonsectarianism the proposal presents the gravest threat to freedom of religion.
A variant of this bill, containing precisely the same defects is that proposed by Congressman Taylor (H.J. Res. 755). The bill reads: "Notwithstanding the first or fourteenth article of amendment to the Constitution of the United States, prayers may be offered and the Bible read as part of the program of any public school in the United States." This bill covers devotional Bible reading, a practice not dealt with directly in Engel v. Vitale, but one which would seem to be included in Engel's broad ban on state-sponsored religious activities in the public schools.
These two bills raise a problem evident in all of the proposed amendments. None of the bills seem intended as substitutes for the first amendment, with its no-establishment clause and its guarantee of religious liberty. The proposed amendments seem rather to be in the nature of a gloss. That is, they say in effect: “We are in sympathy with the protections of the first amendment but wish to make plain that (according to, for example, H.J. Res. 752) compulsory and even sectarian prayer in the public schools does not constitute an establishment of religion and does not impinge on anyone's free exercise of religion. The issue here is whether a constitution should have internal consistency."
A number of the bills give lipservice to the concept that freedom of religion requires absence of governmental compulsion as well as to the concept that government may not engage in clearly sectarian practices. Thus, House Joint Resolution 753, submitted by Congressman Johnson, attempts to exclude sectarianism. It provides that: "Nothing in any article of amendment to the Constitution of the United States shall be deemed to prohibit the offering of any nonsectarian prayer or any other nonsectarian recognition of God in connection with any activity in any public school or other public place.” This bill, of course, ignores the question of compulsion.
On the other hand, House Joint Resolution 764, proposed by Congressman Waggonner, recognizes the problem of compulsion but completely ignores the question of sectarianism. This bill reads: "Nothing contained in any previous portion of the Constitution shall be construed to deny the right to recite the Lord's Prayer in the classroom of any public school, provided such recitation or presence during the recitation is voluntary." The Lord's Prayer is clearly a Christian prayer and is thus sectarian as to any other religion. Further there is division within the Christian faiths over the contents of the prayer. (We might note here that, while Engel does not mention the Lord's Prayer, its recitation seems clearly barred under that decision.)
Bills like Senate Concurrent Resolution 81, introduced by Senator Robertson (for himself, and for Senators Talmadge, Stennis, Thurmond, Byrd of Virginia, and Byrd of West Virginia) attempt to deal with both compulsion and sectarianism. The operative part of this resolution would amend the Constitution to provide “* * * the designation by a public school official of a nonsectarian prayer for use, as a part of the activities of a public school, does not constitute an establishment of religion or an infringement of the doctrines 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.”
Similarly, House Joint Resolution 768, sponsored by Congressman Sikes, provides: "Nothing in this Constitution shall be construed to prohibit the authority administering any school, school system, or educational institution supported in whole or in part from any public funds from providing for the voluntary participation by the students thereof in regularly scheduled periods of nonsectarian prayer."
We believe, however, that even these bills do not provide adequate protection for religious freedom. As we shall show in the following sections of this state
6 We pass over the long preamble to this resolution which presents the sponsors' views of the role of religion in American history and the threat to American institutions posed by the forces of atheism. It should, however, be noted that we reject the implication of this preamble that the interpretation of the Constitution by the Supreme Court in the Engel case is supported only by atheists. As this committee knows from the statements submitted to it, the decision is supported, and the pending amendments opposed, by many individuals and organizations representing varying religious faiths.
ment, prayers cannot be nonsectarian and participation in school exercises by schoolchildren cannot be freed of the element of compulsion.
There are still other bills before this committee which, while ostensibly dealing with the problem of prayer recitation, seem basically focused on entirely different matters. These bills are apparently designed to overrule not only the decision in Engel v. Vitale but also a number of other recent decisions of the Supreme Court.
Thus, Senate Joint Resolution 207, proposed by Senator Eastland (for himself, and Senators Johnston, McClellan, and Talmadge) reads:
"Nothing in this Constitution shall prohibit the offering of prayers or the reading of the Bible as part of the program of any public school or other public place in the United States.
“The right of each State to decide on the basis of its own public policy questions of decency and morality and to enact legislation with respect thereto, shall not be abridged.”
It seems clear that enactment of this proposed amendment would wipe out all constitutional restraints on the States, whether in the original Constitution, the Bill of Rights, or the later amendments. In particular, it could be construed as nullifying the decisions of the Supreme Court holding that the mandate of equality contained in the 14th amendment prohibits State-imposed racial segregation. The question of sectarianism
Those of the pending bills that authorize the recitation of a nonsectarian prayer assume that it is possible to draft a prayer that would be equally acceptable to all groups, or at least to all religious groups. We believe that that is not so and that recognition of that fact underlies the twin concepts of freedom of religion and separation of church and state.
The Supreme Court decision in the Engel case dealt with a prayer, recommended by the New York State Board of Regents, which read as follows: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” The board of regents regarded this short prayer as nonsectarian. Indeed, it is probably safe to say that, if any prayer could be nonsectarian, this one would be. Yet, in fact, neither this nor any prayer can be regarded as equally acceptable to all religious groups.
Thus, the acknowledgement of dependence upon Almighty God and a prayer to Him for His blessings necessarily constitute official assertion of the existence of a personal God who can and will respond to prayer and grant the blessings prayed for. This official assertion of a belief in the existence of God prefers some religions over others, specifically theistic religions over those which are nontheistic.
It is frequently assumed that all religions are founded upon a belief in the existence of a personal God, but this assumption is erroneous. So great a religion as Buddhism with over 150 million adherents throughout the world including the United States (World Almanac, 1962, p. 719) is not founded upon a belief in the existence of God (Rhys-Davis, “Buddhism," in "Religious Systems of the World,” p. 142; Spielberg, “Living Religions of the World," p. 247; Alabaster, “The Wheel of the Law,” p. XXVII).
Even among those who believe in the existence of a personal God, it is difficult to say that any given prayer is truly nonsectarian. Indeed, no prayer which is publicly and collectively recited can be called nonsectarian.
Experience has shown that sooner or later so-called nondenominational religious exercises acquire sectarian additions and deviations. Moreover, what is nondenominational to the majority frequently is sectarian to the minority. Many Protestant public school authorities have designated as nondenominational the King James version of the Bible, which is unacceptable to Catholics, and the Lord's Prayer, which is unacceptable to Jews.
Children of different religions pray in different ways. Some kneel and cross themselves, some clasp their hands and bow their heads. Some pray with head covered and some with head uncovered. And to some, the Friends, for example, all public oral prayer is theologically objectionable.
The daily reading of the Bible, which some of the pending bills would specifically authorize, presents a number of insoluble questions. No version of the Bible can be called nonsectarian. Any reading from the New Testament is viewed as sectarian by Jews. As to the Old Testament, the King James version is unacceptable to Catholics; the Douay version is unacceptable to Protestants.
Thus, it is by no means a new or revolutionary idea that the sectarian character of the Bible makes daily reading from it in public schools a violation of the traditional American concept of religious freedom as embodied both in the Federal Constitution and in the provisions regarding religious freedom in many State constitutions. As long ago as 1910, the Supreme Court of Illinois said :
"Christianity is a religion. The Catholic Church and the various Protestant churches are sects of that religion. These two versions of the Scriptures are the bases of the religion of the respective sects. Protestants will not accept the Douay Bible as representing the inspired word of God. As to them it is a sectarian book containing errors and matter which is not entitled to their respect as a part of the Scriptures. It is consistent with the Catholic faith but not the Protestant. Conversely, Catholics will not accept the King James version, as to them it is a sectarian book inconsistent in many particulars with their faith, teaching what they do not believe. The differences may seem to many so light as to be immaterial, yet Protestants are not found to be more willing to have the Douay Bible read as a regular exercise in the schools to which they are required to send their children, than are Catholics to have the King James version read in schools which their children must attend” (People es rel. Ring v. Board of Education, 245 Ill. 334). The question of compulsion
We believe that another fallacious assumption is made in those proposed amendments that would permit religious exercises in the public schools provided they are "voluntary." Particularly where children are involved and particularly in respect to children who are in the public schools by compulsion of law, nonphysical coercion, influence, and pressure must be recognized as affecting the “voluntariness” of participation in religious practices.
This, too, has been recognized by many American jurists over a period of many decades. Thus, 50 years ago, the Supreme Court of Illinois rejected the argument that pupils were free to exclude themselves from religious practices in the following words: “That suggestion seems to us to concede the position of the plaintiffs in
The exclusion of a pupil from this part of the school exercises in which the rest of the school joins, separates him from his fellows, puts him in a class by himself, deprives him of his equality with the other pupils, subjects him to a religious stigma and places him at a disadvantage in the school, which the law never contemplated. All this is because of his religious belief” (People ex rel. Ring v. Board of Education, 245 Ill. 334, 351).
Twenty years earlier, the Supreme Court of Wisconsin made a similar observation :
“When * a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, particularly when such a cause is apparent hostility to the Bible which a majority of the other pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with a version and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy the equality of the pupils which the Constitution seeks to establish and protect, and puts a portion of them to serious disadvantage in many ways with respect to the others" (State er rel. Weiss v. District Board, 76 Wis. 177, 199–200).
An Iowa court came to the same necessary conclusion:
"Conceding, for argument's sake, that such attendance was voluntary, in the sense that no requirement or command was laid upon non-Catholic pupils to attend or take part in such exercises, yet, surrounded as they were by a multitude of circumstances all leading in that direction, impelled by the gregarious instincts of childhood to go with the crowd, and impressed with a sense of respect for their teachers, whose religious principles and church affiliation were unceasingly pressed upon their notice by their religious dress and strictly ordered lives, could a responsible person expect the little handful of children from nonCatholic families to do otherwise than to enter the invitingly opened door of the church, and receive, with their companions, the instructions there given ?” (Knowlton v. Baumhover, 182 Iowa 691, 699–700).
See also Kaplan v. Independent School District of l'irginia (171 Minn. 142, 155–156), dissenting opinion:
"To excuse some children is a distinct preference in favor of those who remain and is a discrimination against those who retire. The exclusion puts a child
in a class by himself. It makes him religiously conspicuous. It subjects him to religious stigma. It may provoke odious epithets. His situation calls for courage.”
The most searching examination of the claim of voluntarism in respect to introduction of religious practices in the public school program was made in the case of Tudor v. Board of Education of the Township of Rutherford (14 N.J. 31, 100 A. 2d 857, cert. denied, 348 U.S. 816). There, speaking for a unanimous court, Chief Justice Vanderbilt, after examining the various authorities, overruled the contention of voluntarism on the ground that it "ignores the realities of life.”
The court's opinion contains the following (14 N.J. 31 at 50):
“Prof. Isidore Chein, supervisor of psychology and acting director of the Re search Center for Mental Health at New York University, testified on behalf of the plaintiff :
“* * * I would expect that a slip of this kind, distributed under the authority of the school, would create a subtle pressure on the child which would leave him with a sense that he is not quite as free as the statement on that slip says; in other words, that he will be something of an outcast and a pariah if he does not go along with this procedure.
“* * * I think that they would be in a situation where they have to play along with this or else feel themselves to be putting themselves in a public position where they are different, where they are not the same as other people, and the whole pressure would exist on them to conform.'”
Children of minority religious groups, particularly, are faced with a dilemma whenever religion intrudes upon the public school-a dilemma which is always hard and frequently cruel. They must either subject themselves to being singled out as nonconformists or they must participate in religious practices and teachings at variance with those they learn at home or in their religious schools. It is understandable that not infrequently some of them choose the second alternative as the lesser evil, and that Catholic and Jewish children will participate in Protestant religious practices in violation of their religious convictions and upbringing rather than subject themselves to the pain of not belonging.
We submit that, as long as we retain our attachment to the principles of separation and religious freedom, American children should not be placed in this dilemma by public school authorities. They should not be compelled to choose between being forced or influenced to profess a religious belief or disbelief and being punished for refusing to profess such belief or disbelief. It was to avoid the oppression and bitterness which Old World experience had shown to be an inevitable concomitant of governmental intrusion in religion, that the fathers of our country gave constitutional protection to the principle that "religion is wholly exempt from [government's] cognizance” (Madison's "Memorial and Remonstrance Against Religious Assessment,” annexed as appendix to Everson, 330 U.S. at 63). Religious compulsion and oppression, we submit, should not be allowed in the public schools even in a mild or subtle form.
An alteration in the U.S. Constitution designed to impair the broad protection of the first amendment in the field of religion so as to allow prayer recitations in public schools would strike at a fundamental principle of the American democratic system—a principle that has stood the tests of almost two centuries. It is no answer to say that only a small departure from principle is suggested. The recitation of a short prayer, or the reading of a few verses from the Bible in the public schools might not seem to present major threats to the principles of separation and religious liberty. Yet these practices are far from trivial to those whose religious convictions compel their rejection.
Even if these encroachments were in themselves minor, they would still be a danger to the American secular public school system and the principles of separation and religious liberty. We are dealing with an area in which every sanctioned encroachment is used to justify further encroachment. A constitutional amendment in the direction of an establishment of religion, or of an infringement of religious liberty is an amendment ultimately destructive of these principles, since the first step logically involves the last.
It was with remarkable prescience that Madison warned that the same authority which can force a citizen to contribute 3 pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever." Today, as in Madison's day, “we must say that the will of the legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or that they are bound to leave this particular right untouched and sacred." 8
We submit that it was the purpose of the fathers of our Constitution and the first amendment to leave the right to religious liberty and a state separated from the church "untouched and sacred.” Adherence to that peculiarly American principle has resulted in the elevation of religion in the United States to a status of strength and influence unparalleled in the world and in the evolution of a system of public education for all children free of sectarian strife and controversy. Preservation of those institutions requires continued faithful adherence to the principles expressed in the first amendment. This, in turn, requires opposition to the proposed constitutional amendments before this committee. Respectfully submitted.
Rabbi Dr. JOACHIM PRINZ,
THE AMERICAN LEGION,
Washington, D.C., November 29, 1962. Hon. JAMES 0. EASTLAND, Chairman, Senate Judiciary Committee, Washington, D.C.
DEAR MR. CHAIRMAN : The American Legion is vitally concerned with the controversy over the recitation of prayers in public schools which was precipitated by the Supreme Court decision in June 1962.
When hearings were held by your committee, shortly after the Court decision was announced, The American Legion did not have an official position regarding this issue.
The 1962 National Convention of the American Legion, October 9–11, gave serious consideration to this matter, and unanimously approved resolution No. 25, a copy of which is attached. The position thus taken by the American Legion is in advocacy of a constitutional amendment which would permit prayer of a free and voluntary nature in public schools and other public places.
We are informed that the record of the hearings has not been closed. We would appreciate very much the inclusion of the text of Resolution No. 25 in the printed record of the above-mentioned hearings and would urge that serious consideration be given to the recommendations of the American Legion contained therein. With warm personal regard, I am, Sincerely yours,
CLARENCE H. OLSON, Director.
RESOLUTION 25, 44TH ANNUAL NATIONAL CONVENTION OF THE AMERICAN LEGION,
LAS VEGAS, NEV., OCTOBER 9-11, 1962
Whereas The American Legion recognizes that there is a Divine Superior Being, all powerful, and recognizes that each citizen has the right to worship the Supreme Being in such manner as each citizen deems proper, through prayer and daily deed ; and
Whereas this right is personal to each citizen of these United States and should always remain a personal right and privilege; and
Whereas The American Legion confirms and recognizes its first duty is to God and its second is to country, and further confirms its primary purpose is to preserve and perpetuate these principles; and
Whereas the Supreme Court of the United States in its decision of Engel et al. v. Vitale, et al., decided June 25, 1962, finds that the following 22-word prayer
7 “Memorial and Remonstrance,” par. 3, annexed as appendix to Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947).