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In a study made by a Catholic educator, no difference in moral attitudes was noticed between Catholic students who attended parochial schools, where the theistic approach is used, and Catholic students who attended public schools, where the nontheistic approach is used (Carmen V. Diaz, doctoral thesis, Fordham University, 1952). In the final analysis, therefore, the moral standards of any child can be little more than a reflection of the moral standards of his total environment.

To expect that the mere rote recitation of a prayer in public school will strengthen the moral character of a child is to invest in prayer a signification contrary not only to most theologies, but to all scientific evidence and educational theory. To ask the home and church to assign one of their prime functions to the state is to weaken the initiative and sense of responsibility of the home and church. To foist religious education on the school can only result in confusion for the child and tension for school officials. Rather than remaining the bulwark of our democratic system, the instrument for welding together the diverse elements in American life, the public school will become the focus of intergroup divisiveness.

Let us not make a scapegoat of the public schools. Let not religious groups place the blame for low moral standards on the public schools, when these standards have developed during the very period of greatest expansion and burgeoning of religion in American history. Let us not make of our public schools a vicarious atonement upon whom we shall heap responsibility for our own shortcomings and our own failures to perfect ourselves and our fellowmen.

This present controversy can only serve to divert religion from its primary task—the creation of a better society for all men. Precisely because religion has such high status, there is a tendency to equate religion with everything good. Unfortunately, history, both past and present, does not warrant such a blanket assumption. In the past, in the name of religion, and with the authority of the state, men have perpetrated heinous crimes against humanity. In the present, in the name of religion, and ostensibly for the good of the state, some American citizens are "attacking windmills” and engaging in witchhunts. The polarization of religion as the embodiment of all good and of atheism as the embodiment of all evil intensifies the omnipresent danger of judging men by what they say they believe instead of by what they do.

Religion can retain its integrity only when it remains unencumbered by entangling alliances with any of the social, economic, or political instruments of society; only when it knows how to distinguish between God and country; only when it seeks to judge the world that is finite from the perspective of Him who is infinite.

We urge this committee not to initiate any action which would deprive religion of its integrity and democracy of its vitality.

RESOI TION OF THE EXECT IVE COMMITTEE OF THE CONSTITUTION CLUBS & PARTY OF

NEW YORK STATE FAVORING THE SUBMISSION TO THE STATES OF A CONSTITUTIONAL AMENDMENT WHICH WOULD RESTORE THE USE OF PRAYERS IN OUR PUBLIC SCHOOLS

Adopted September 4, 1962 (Headquarters : Richmond Hill, N.Y.) Resolved the Congress of the United States should submit to the States the following constitutional amendment:

“SECTION 1. The United States by their fundamental document, the Declaration of Independence, recognizes that this Nation was founded under God and His moral law, which are the security of the people's rights and liberties.

“SEC. 2. The several branches of the Federal and State Governments (legislative, judicial, and executive) and their several subdivisions shall commence each day with a prayer to Almighty God for divine guidance."

STATEMENT

1. The basis of Western civilization is the recognition of a Creator of heaven and earth and the acceptance of His revealed moral law, and the natural law subsidiary thereto. These United States of America recognized and accepted this reality in its fundamental document, the Declaration of Independence, and they based their justification of separation from Great Britain on these funda

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mentals; in that document they sought His support on the basis of His moral law for their cause, independence. Upon this document rests the existence of these United States : its right to exist in the past; and its right to exist in the future. Upon it likewise rests the personal rights of every individual citizen; these rights are deemed “inalienable" under moral law and its subsidiary moral law. Any denial of this fundamental concept of Western civilization, at once, denies the right of these United States to have come into existence, and destroys the personal rights and individual dignity of every citizen; indeed the citizen, as such, immediately ceases to exist, becoming instead a mere pawn of the state.

2. The first amendment did not and does not recognize “atheism” as a religion; it merely denied to the Federal Government the right to decide how the individual citizens of the several States should worship God: the favoring of one sect over another. It did so by denying to the Congress the power to legislate in this realm, reserving it to the States. The first amendment, therefore, did not guarantee freedom of worship to the citizen body. The qualified citizens of each State continued in their authority to do as they deemed best. Indeed the tendency was away from established churches in the States, but some 30 years were to elapse after the adoption of the first amendment before the State of Massachusetts abandoned its restriction of the voting qualification to members of her esablished church: the Congregational. By the time the 14th amendment was adopted the qualified citizens of every State had been won to the principle of toleration toward all religious viewpoints, and the right of every citizen to worship God according to his own lights. This was a far cry from abolishing the recognition of God, the Creator and Sustainer of all our rights, of everything we deem dear, and of life itself.

3. About the time these United States were adopting the Declaration of Independence, Blackstone, the great English exponent of the common law (an attribute of Western civilization), declared that all secular law must conform to moral law, or else was invalid, null, and void. Since then, those who would subvert these Republics and reduce all of its citizens to abject servitude have concentrated a great part of their effort on undermining the religious foundation of these United States.

4. Therefore, it is necessary, urgently so, that recognition of God and His moral law be written into the "supreme law of the land”—the Constitution of these United States of America. This resolution of the Constitution Clubs & Party of New York State, adopted by its executive committee September 4, 1962, has this objective in view, and we believe that the above resolution provides an appropriate basis for considering the wording of the desired and needed amendment to the Constitution of the United States.

I would be very glad to testify on this resolution and the four points covered in its accompanying statement should the opportunity present itself. Respectfully yours,

WILLIAM ROBERT PLUMME,

Chairman, State Committee.

STATEMENT OF LAWRENCE X. CUSACK, ATTORNEY, ROMAN CATHOLIC ARCHDIOCESE

OF NEW YORK

My name is Lawrence X. Cusack. I am an attorney in private practice in the city of New York. I am privileged to appear before the committee as a representative of the Roman Catholic archdiocese of New York at the request of His Eminence, Francis Cardinal Spellman, archbishop of New York, whose views are embodied in the following remarks.

After careful study, I have come to the conclusion that the recent decision of the U.S. Supreme Court in Engel v. Vitale, declaring unconstitutional the New York regents' prayer, was a grave error in judicial judgment, a decision out of line with the conscience and religious heritage of the American people and one which foreshadows an ominous tendency to undermine cherished traditions of this Nation. In my opinion, the error is too serious, the danger to our American institutions too immediate, to be left to the evolutionary process of corrective decisions by the Court itself. In my judgment, the indicated solution is an amendment of the Constitution. For reasons later stated, I respectfully submit that any such amendment should be directed to the underlying constitutional fallacy of the Court's decision—a misinterpretation of the no-establishment clause of the first amendment-rather than to the narrow issue of a voluntary, nondenominational prayer.

As archbishop of New York, Cardinal Spellman is directly and immediately concerned with the harmful effect of this decision upon the moral and spiritual welfare of the tens of thousands of Catholic children who attend public schools in the 10 counties of the State of New York that comprise the archdiocese of New York. Although the archdiocese maintains and administers a parochial school system, consisting of 423 elementary and high schools with more than 216,000 children in attendance, it is, nevertheless, estimated that there are well in excess of 100,000 Catholic children in attendance at public elementary and high schools within the archdiocese. The concern of Cardinal Spellman springs also from the apprehension of a patriotic citizen as to the long-range effects of the Court's decision upon succeeding generations of our country's children and upon the future general welfare of our Nation. On the very day that the decision of the Court was announced, His Eminence publicly stated that he was "shocked and frightened" at a decision which, he said, "strikes at the very heart of the godly tradition in which America's children have for so long been raised."

I am convinced that the Supreme Court's decision in the Regents' Prayer case is based upon an erroneous interpretation of our Constitution, but nothing I say is intended either to undermine the Court's status or to impugn the motives of the Justices. As a representative of Cardinal Spellman and as a member of the bar, I have the greatest respect for the Supreme Court as an institution. In taking issue with the Court, I am doing no more than what many Justices of the Court have themselves often done in their dissenting opinions and in their extrajudicial statements. The Court has never held itself out to be an infallible tribunal and, in fact, on many occasions has expressly or impliedly acknowledged its own fallibility by reversing earlier decisions. Indeed, the need for informed and constructive criticism of the work of the Court has been frequently stressed by responsible authorities. In 1898, Mr. Justice Brewer stated :

"It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its Justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism."

And the late Chief Justice Harlan F. Stone has said:

“* * * When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it."

Only recently, the president of the American Bar Association reminded American lawyers that:

"It is the inherent right and the highest duty of the bar to analyze, criticize, make recommendations, and work toward improvement in both the rulings and the operation of courts, from the lowest to the highest level.

"Its right flows inevitably from the lawyer's status of citizenry, and it is underscored and emphasized by his professional standing and his devotion to juridical science.”

With regard to this very decision, the Supreme Court has not been free from the criticism of many eminent constitutional lawyers, professors, and judges of other courts. The chief justice of one of our Midwestern States has, for example, declared that by this decision the Supreme Court has played “recklessly with the Constitution of this country.”

In differing with the decision of the Supreme Court, I am by no means attacking the principle of separation of church and state as set forth in the religiousfreedom clauses of the first amendment. The Catholics of this country not only respect that principle and revere it as part of our Constitution, but they are wholeheartedly in favor of it as one of the keystones of our liberties. Although individual Catholics may differ as to the ultimate ramifications of the Court's action in declaring unconstitutional the New York regents' prayer, they do not differ in their respect for and adherence to the principle of separation that the Court attempted to apply in rendering its decision. Throughout the history of this country, spokesmen for the Catholic Church have made it clear time and time again that American Catholics are irrevocably dedicated to the constituticnal principle of separation of church and State, properly interpreted and properly applied. Adherence to that principle was enunciated in the early years of our Nation by Archbishop John Carroll, the first Catholic bishop of our country. Since then, that adherence has been reaffirmed time after time. More than 40 years ago, Cardinal Gibbons wrote that:

"No establishment of religion is being dreamed of here by anyone; but were it to be attempted, it would meet with united opposition from the Catholic people, priests, and prelates.”

Essentially the same thought was reiterated in 1948 by Archbishop McNicholas, chairman of the administrative board of the National Catholic Welfare Conference, who said :

“We deny absolutely and without any qualification that the Catholic bishops of the United States are seeking a union of church and state by any endeavors whatsoever, either proximate or remote. If tomorrow, Catholics constituted a majority in our country, we would not seek a union of church and state.”

In 1960, Archbishop Vagnozzi, apostolic delegate of the Vatican to the United States, made a public statement to substantially the same effect.

It is a fact of American history that a motivating factor in the establishment of the Catholic parochial school system in this country was objection to the indoctrination in public schools of Catholic children in the religious tenets and practices of other denominations. Catholics would make the same objection today to denominational teaching or services in our public school system. But this is a far cry from the practice which the Supreme Court has condemned in the New York Regents' Prayer case. There, schoolchildren were merely given an opportunity voluntarily to participate in the saying of a short, simple, nondenominational declaration of dependence upon God and request for His blessings. This is not denominational religious instruction. On the contrary, the vast majority of Catholics believe that such a practice in our public school system is no more than a recognition that our public school system is not designed to make God a stranger in the classroom to those children who wish to acknowledge Him, and that it is no part of our national heritage to compel our public officials to turn their backs on the Supreme Being who, since the days of our Founding Fathers, has guided and watched over the destiny of this Nation. It is in that connection and in that spirit that I voice my criticism of the Court's decision.

My disagreement with the decision is that the Court has misread history and misconceived and misapplied a great constitutional principle. In attempting to safeguard a clause of the Constitution that was originally intended to prohibit Congress from creating, or aiding in the creation of, a state religion, the Court passed lightly over its own observation that the prayer in question seemed “relatively insignificant," and proceeded to render a decision which, in the light of American history and the purposes underlying the first amendment, was unrealistic, extreme, and doctrinaire. In short, the Court's proper concern with keeping the principle of separation inviolate led it to declare a theory of absolutism with regard to the relations between church and state, so that, even if not intended, the Court's decision may have the practical effect of prohibiting even the merest mention of God in the public school classroom. This was carrying to the extreme a constitutional principle which, reasonably interpreted and applied, should be a doctrine on which all Americans of good will, whatever their faith, could agree.

The alarming aspect of the Regents' Prayer case is not so much the particular point decided as what the decision portends in terms of shaping our society. In legal effect, the decision amounted to no more than a declaration that a particular prayer composed by a particular State body could not be officially sponsored for use in the public schools of a particular State. But, in practical effect, it banned all such prayers, even though nondenominational and noncompulsory. As a result, the decision has a significance that goes far beyond the legal issue involved in that case. On the very day the Court's opinion was released, a leading figure in the fight against the nondenominational prayer declared that the decision “makes it clear that all religious practices in the public schools, such as Bible reading, prayer recitation, and religious holiday observances, are unconstitutional."

Within a few days others, adopting the reasoning of the concurring opinion of Mr. Justice Douglas, were asserting that the Court's prohibition seems to apply equally to prayers said at the opening of our courts and at the daily convening of our legislatures. It was soon announced by self-styled protectors of civil liberties that, on the strength of the Court's decision, an attack would be made on the use of the phrase “under God” in the pledge of allegiance to our flag. In the light of these interpretations, the Court's decision seems to forecast a drift toward a godless society, toward the enthronement of secularism as the American religion. Our public schools are already being referred to in some quarters as our “secular school system.” The ultimate objective of a well organized, well financed minority, ready at the most trifling excuse to provoke litigation, is to root out of American life all religious values. If they are successful, they will create an ideological vacuum which will be filled by secularism. If this comes to pass, it will threaten the stability of our Nation for, as our first President said in his farewell address :

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. * * * Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?

Many students of the Supreme Court have observed that in interpreting our Constitution the Court keeps attuned to the temper of the times and to the manifest will and aspirations of the American public. This leaves room for hope that, if left to its own devices, the Supreme Court would in the course of time find opportunity to reshape its interpretation of the no-establishment clause so as to bring it once again into line with the popular conception that has prevailed since the early days of this Nation. But for the Congress to stand aside and await that possibility would be to leave to chance and to the future predilections of a small group of men a matter that is presently vital to our way of life. The eyes of the world are upon this country, looking to us now for the kind of inspired leadership that will preserve our world from the aggressions of an alien society that has long since drained religion out of its own godless way of life. I submit that the one sure, effective, and early solution is an amendment to our Constitution which would remedy the result of the Regents' Prayer case by correcting the Court's misreading of the no-establishment clause.

In my opinion, any such amendment should not be directed merely at the Court's holding that the State of New York cannot constitutionally compose a nondenominational prayer for use in the public schools of that State. It should, rather, be directed at the malady that is at the core of the decisionthe misreading of the historical intent underlying the adoption of the religious protection clauses of the first amendment.

The root of the Court's error was that it lost sight of the fact that those who drafted the clauses intended not to prefer irreligion and godlessness over religion, but to make certain that Government, while cooperating with all religions, did not establish a state religion or prefer any one religion over others. I believe, then, that any constitutional amendment should go beyond a mere declaration that the voluntary recitation of nondenominational prayer is constitutionally permissible, thereby avoiding the serious risk that such a declaration would be misinterpreted to prohibit by implication traditional practices not specifically authorized. The amendment should rather make clear what our Founding Fathers themselves thought they had made clear, that our Constitution favors Government cooperation with religion so long as such cooperation is devoid of favored treatment to any one religion or denomination. Such an amendment would do no more than restore to the first amendment the interpretation which the Supreme Court itself gave it in 1952 in Zorach v. Clauson, the New York released time case, when Mr. Justice Douglas, whose viewpoint now seems so extreme, had himself said:

“We are a religious people whose institutions presuppose a Supreme Being * * *

When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For then it respects the religious nature of our people and accommodates the public service to their spiritual needs."

I respectfully suggest that this committee propose a constitutional amendment which would restore the original concept of the no-establishment clause which was, as the learned Thomas Cooley wrote just before the turn of this century, to prohibit “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." An amendment framed along these lines would revitalize the general sentiment that underlay the adoption of the first amendment. That sentiment, as Joseph Story, Supreme Court Justice and professor of law, said more than 125 years ago, was that religion "ought to receive encouragement from the state, so far as it was incompatible with private rights of conscience, and the freedom of religious worship.” In this way the American people can forever protect the no-establishment clause from the doctrinaire absolutism of

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