[From the Congressional Record, Oct. 10, 1962]

TRIBUTE TO SENATOR HERMAN E. TALMADGE OF GEORGIA

Mr. RUSSELL. Mr. President, on October 7 my able and distinguished colleague, Senator Herman E. Talmadge, was a guest on the television program which goes under the title "All America Wants To Know." Appearing on the program with him were Rev. James A. Pike, Episcopal bishop of California; Mr. William J. Butler, New York attorney, who argued the school prayer case before the Supreme Court; and Senator Jacob K. Javits, Republican, of New York.

This program well illustrates the profound knowledge of my colleague in the field of constitutional law and the Constitution of the United States. That was manifested in every word of his brilliant discussion of the momentous issue before the American people as to the proper interpretation of the constitutional provision providing for the separation of church and state.

Mr. President, I ask unanimous consent that the transcript of the program be printed in the body of the Record.

There being no objection, the transcript was ordered to be printed in the Record, as follows:

"TEACHER. Shall we bow our heads in prayer? 'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.'

"ANNOUNCER. The U.S. Supreme Court found unconstitutional the use of this brief prayer written and recommended by the board of regents for use in New York State's public schools. Rarely has court action so rocked the Nation and divided its people. How far reaching is the decision? What effects will it have on our public religious practices? All America wants to know: Does prayer have a place in our public schools? A monthly discussion of the great questions facing our country presented in the public interest by America's favorite magazine, the Reader's Digest, in association with Freedom's Foundation at Valley Forge, and produced by Theodore Granik. This month's subject is based on the article 'Has the Supreme Court Outlawed Religious Observance in the Schools,' a debate by William J. Butler and Rev. James A. Pike, appearing in the October issue of the Reader's Digest. To discuss the subject, we are pleased to have as our guests the authors of the debate, Rt. Rev. James A. Pike, Protestant Episcopal bishop of California; William J. Butler, attorney who argued the case before the Supreme Court, and two distinguished Members of the U.S. Senate, Senator Herman E. Talmadge, Democrat, of Georgia, and former Governor of that State; and Senator Jacob K. Javits, Republican, of New York, and former attorney general of that State. We will join our group in just a moment.

"And now here is your moderator, Mr. Granik.

"Mr. GRANIK. Gentlemen, the Reader's Digest debate poses these questions: What actually does the Supreme Court decision say and not say about prayer in the schools? What does it imply both to the schools and to religion in public life generally? Mr. Butler, as attorney for the families that brought the action, what does the ruling really mean?

"Mr. BUTLER. Well, first of all, Mr. Granik, I'd like to try to put this case in its proper perspective. What actually happened was that many years ago, around 1951 to 1953, the State of New York, acting through its board of regents, decided that it was the duty and obligation of the State to inculcate into the minds of children a belief in the Almighty God. And in response to this decision, they formulated and composed their own prayer. It was really the first time in the history of the United States that a State agency had undertaken directly a religious activity. After formulating this prayer, they recommended that all the school districts of the State of New York say this prayer at the opening of the school day, hands clasped and led by either a teacher or by a student in the student body. When this prayer was initiated in Roslyn, Long Island, several parents in the local school district there took issue with it. These people were deeply religious people and they, in effect, stated that in their opinion this was the State telling their children how to pray, when to pray, and what to say. "Mr. GRANIK. May we turn to Bishop Pike. I'll come back to you.

"Bishop PIKE. Yes. I'd like to challenge Mr. Butler's statement that this is the first time in history that a State agency has taken the initiative in the matter of religious activity. May I just cite a few examples quickly. At the inauguration of President Washington, a committee of the Congress planned the service,

arranged for it, paid the parson, who happened to be the bishop of New York at that time. The chaplains in the Armed Forces are paid personnel of the Federal Government with regular rank as officers and they compose prayers. I preached recently at the Naval Postgraduate School down in-a very fine institution, incidentally-down at Monterey Peninsula, and I saw there the Armed Forces prayer book issued by the Government, with a prayer composed by the Government through its paid agencies opening, and in separate services, the different religions set forth. Congress pays chaplains who compose prayers. The man who prays every day in the Supreme Court-God save the United States and this Honorable Court is paid. I can't see that this is the first time that this has happened at all. There are 20 or 30 other instances.

“Mr. GRANIK. Senator Javits, how far does the ruling go?

"Senator JAVITS. I think the ruling only relates to the prescribing by a governmental body of a prayer, and no further. I believe that prayer is not ruled out of the public schools. I believe children may lean upon their desks or have a moment or a period of contemplation in prayer. I believe they may be opened with an invocation. I believe they may take their allegiance to the flag, which contains a reference to the Deity. I believe that where the government intercedes to write a prayer, the Supreme Court has said this violates the so-called establishment clause or whether there is or is not compulsion. I think that's what the decision says. I do not believe that the Supreme Court has sought to exorcise God from the schools, as the saying goes.

"Mr. GRANIK. Senator Talmadge.

"Senator TALMADGE. First amendment, of course, says that Congress shall make no law respecting an establishment of religion. Congress has made no such law. The New York prayer did not attempt to establish a religion. It merely said: 'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.' Now, I'd like to call as my witness the greatest authority on this particular matter; it was Thomas Jefferson, and he wrote a letter in January 1779 to Elbridge Gary, in which he said: 'I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another.' And Judge Cooley, the greatest authority on the Constitution, states that the purpose of it is to keep from establishing a state religion or a state denomination of religion. It has never been true in the history of our Republic that any court, any Congress, any President, any Governor, or anyone else would deny the existence of Almighty God. That's what this decision attempts to do.

"Mr. GRANIK. Mr. Butler.

"Mr. BUTLER. Well, of course, that's exactly what this decision does not attempt to do, and I have to take issue with the Senator from Georgia. I must say that the use of the word 'greatest' can also be applied, in my opinion, to members of the Supreme Court of the United States today, where six Judges of that Court with one dissenting held that this did amount to the establishment of religion; that this was the State getting into the business of religion; that this was the State composing a prayer, and then inserting it into one of its compulsory institutions; and that this was the State trying to tell people how to pray, what to pray, and when to pray, and this, when added up in a compulsory institution, such as the public school system, will end up with the State coercive powers forcing upon children a belief in God.

"Senator TALMADGE. I might interrupt at this point. Now here's what Judge Cooley says, and I think everyone in America, every member of the bar, would recognize him as the greatest constitutional authority in the history of our country. And here's what he says: 'By establishment of religion is meant the setting up or recognition of a church-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 or that religious worship should never be provided for in case where the proper recognition of divine providence and the working of government might seem to require it, and where it might be done without drawing any invidious distinctions between religious beliefs, organizations, or sects.'

"Mr. GRANIK. Senator Javits.

"Senator JAVITS. May I have just a word here, because I think it's important. I don't think my view squares with quite that of those who have been so actively debating this subject. In the first place, I think the decision is very narrow and relates to a State-prescribed prayer, and does not inhibit any prayer, as Bishop Pike so properly points out. Invocation is constant, not only in schools, but in

courts and in our own Congress. The Senate of the United States opens with prayer. But I think what the people want to know of my colleagues on this debate is where do they stand. And I think that's what we ought to try to answer. Where do they stand? What can and can't be done? And I deeply feel as a lawyer that there is a distinction to be made between the establishment clause, which is the establishment, as Senator Talmadge has just read from a very learned authority, of some type of institute, or some institution of religion, and the exercise clause, which is a freedom of worship, freedom of religion, and so on. Now I think all the courts decided, and it went, I agree it went further than the Court has gone heretofore, it decided that a State-prescribed prayer verges so close to being an establishment of a religion that the Court has struck that down. Well, the Supreme Court is the last word on the law, and I assume that that's the law for the moment.

"Mr. GRANIK. May Mr. Pike come in for a moment, Senator?

"Bishop PIKE. The Supreme Court is the last word except in one thing and that is the Constitution itself, and that is why I feel in due time a constitutional amendment should be adopted which does not make exceptions to the first amendment. I'm all for the first amendment and there are so many instances of this, as you and I agree-you'd have to have an amendment this long which would make it as bad as the California constitution, which is practically an encyclopedia of everything that any State assemblyman ever said in a speech. "Senator JAVITS. Or the New York constitution.

"Bishop PIKE. Is that like that too? But rather, to restate the phrase, 'establishment of a religion,' to say what our forefathers really meant. And I think frankly-we won't get off into that case in the tale, but in a column against the Champaign School District, I think the Court was wrong in its definition of the word 'establishment.' I think in this case it's wrong in its definition of the word 'religion.' Now, as to what 'religion' meant, anyone who had had the recent English experience of my particular church being established in England knew exactly what they didn't want-the relationship between the Church of England and the state-and Madison himself made that perfectly clear in his writings. His greatest biographer, Brant, has pointed out that was his intention here, to avoid a sect prevailing. Madison himself wanted it to read: There shall be no national establishment of religion, which would have made clear what he meant except that some people didn't like the idea of mentioning the National Government.

"Mr. GRANIK. Mr. Butler, in your debate in the Reader's Digest, you say you notice a growing acceptance of the decision.

"Mr. BUTLER. Yes. I'd like to bring that up now because I'd like to change this argument from quoting constitutional authorities out of context, and also by stating what was intended by Jefferson and Madison in the minds of lawyers. What we're really after here is religious freedom. The whole purpose of the first amendment

"Bishop PIKE. May I interrupt and ask you, did the Court or did it not in its majority opinion rest this on the religious exercise clause at all? It did not. "Mr. BUTLER. It did not.

"Bishop PIKE. No, it did not. It rested it on the establishment clause. "Senator JAVITS. That's very important. Could we all agree on that? It did not involve the free exercise of religion.

"Senator TALMADGE. I agree. They said 'establishment.' Almighty God established a religion.

A mere address to

"Senator JAVITS. Now that is I think the fulcrum of the discussion, in short, they have gone, I think, about as far as they could conceivably go in dealing with the establishment clause. But, so long as the exercise clause is left, the thing that concerns me, Bishop Pike, is shouldn't we allow the few other cases which erupt there-cases involving, for example, this question of an invocation, or a Christmas observance, or Bible reading-shouldn't we allow those cases to be decided before we jump into what, in my opinion, could create grave religious conflict in the country. How do you write a change in the first amendment? What do you say? For example, one of my colleagues wants to allow a period for prayer. Another of my colleagues wants to allow any kind of prayer, whether or not written by a State. Now this is going to involve a very big argument. I remember a time, for example, when minorities in this country— Catholic, as well as other minorities-were very much concerned about that kind of thing.

"Mr. GRANIK. I think Bishop Pike wants to get a word in. Mr. Butler, we'll come right back to you.

"Bishop PIKE. Yes, I want to get a word in now because I do agree with you. That's why I said in due time I would like to see consideration of a constitutional amendment because I'm wondering myself if we hadn't better get a new opinion out of the Court on these two cases coming up now, where I'm sure after all this discussion, they will do their utmost to clarify language and point out implications more fully than the present majority opinion did, and that might throw more light on what kind of amendment, if any

"Mr. BUTLER. But I'd like to bring up this point. Nothing can be done in the United States until we put this issue in its proper framework. I'd like to convince my fellow Americans that religious freedom is better protected if we keep religion out of the public schools, that whenever the state participates in the religious exercise, promotes a religious exercise, furthers a religious exercise, it's dealing a blow to religious freedom. Religion should be left to the home and to the church. It shouldn't be in the state. It shouldn't be a function of the State to tell us how to pray and what to say, because history showed us that whenever that happened in the 3,000 years of recorded history, that that was the end of religion, the people lost their religion. They lost their right to practice their religion the way they chose. That was my plea before the Supreme Court. That's what the Court sustained. That's the proposition the Court sustained.

"Mr. GRANIK. The Senator wants a word.

"Senator TALMADGE. May I interrupt at that point?

"Mr. BUTLER. Now if you're against that, that's the issue.

"Senator TALMADGE. I sincerely believe in separation of church and state, but I just as strongly oppose secularization of our Nation. I think it's awful indeed when our courts strike down the existence of Almighty God and put Almighty God and the Devil on coequal status as far as the Supreme Court of the United States is concerned.

"Mr. BUTLER. But you can't believe in freedom.

"Senator TALMADGE. You can indeed. Now I don't blame you for not wanting to hear constitutional authorities because none of them accept that recent decision of the Supreme Court that supports your views. Here's what Mr. Storey, a great constitutional authority said on that: He said there probably will be found few persons in this or any other Christian country who would deliberately contend that it was unreasonable or unjust to foster and encourage the Christian religion generally as a matter of sound policy as well as revealed truth. constitutions of 49 of the 50 States in this Union mention God, including that of New York State, and I'm for it.

The

"Senator JAVITS. Well, Senator, yield a minute, because I really think that we should not assume that that's what the Supreme Court did without actually being absolutely sure about it, because I do think that would be a lethal blow to the country and all its institutions. And even Mr. Butler-I was interested to hear his point-did not define his terms. For example, he couldn't-and I doubt that he would-but if he would, he couldn't against educating people about what has happened in religions historically in school. This is one of the great teachings of our history, and the minute you do, you are, if you follow the absolutely pure line, you're prohibited from teaching the history of the Reformation, the exodus of Moses or any other, or the coming of Jesus, or any other great event which is historical. And I just cannot believe that the Supreme Court decided that, and as I would like to make at least my position crystal clear, I would say this, I believe this is a narrow decision. I believe it goes to the outermost limits of the decision, but I do not believe we ought to leap into a constitutional amendment without giving the Court an opportunity as the highest organ of law in our land, to clarify precisely the limits of what is meant. Then if we need a constitutional amendment, in the light of the judgment and the morality of the people, then is the time to do it, not now.

"Mr. BUTLER. I'd like to take issue with the bishop.

"Mr. GRANIK. We'll come right back to you-go ahead Bishop.

"Bishop PIKE. I'm thinking increasingly along the line, Senator, you mentioned. I have felt that the type of amendment that should emerge, if one is needed, would be simply a restatement. The establishment-the recognition as an established church of any denomination, sect, or other organized religious association. I'd just like to

"Senator TALMADGE. That is, of course, what the framers of the first amendment intended and it was clearly demonstrated when it was debated in the House of Representatives in the colloquy between Congressman Huntington, of Connecticut, and James Madison, who was the author of the amendment. They

were determined that we would not have an established church in America. We had at that time Thirteen Original States, eight of them, I believe, had established churches. At the time, the establishment referred to was the Episcopal Church-the Church of England. And Thomas Jefferson and James Madison were determined that we would not have a state religion in America that would be mandatory upon the people and tax money could be levied to support it. That's what the first amendment was intended to convey.

"Mr. GRANIK. Mr. Butler wants a word.

"Mr. BUTLER. Well, certainly, Senator, that was one of the things that it was intended to prevent. Of course, the ultimate aim of the first amendment has always been the religious freedom of America. No one can take that away. "Senator TALMADGE. What religious freedom is denied by this practice? "Bishop PIKE. Where it's voluntary?

"Mr. BUTLER. Where it's voluntary? "Senator TALMADGE. It is voluntary.

"Senator JAVITS. You said so in your brief.

"Mr. BUTLER. But also the establishment of religion

"Senator TALMADGE. All right. What religion does it establish?

"Mr. BUTLER. It establishes a state religion.

"Senator TALMADGE. Which one?

"Mr. BUTLER. The New York State religion.

"Senator TALMADGE. What religion does Almighty God

"Mr. BUTLER. I want to finish my point. I know you'll give me the courtesy of finishing my point.

"Senator TALMADGE. Certainly I will.

“Mr. GRANIK. We'll yield to the attorney from New York.

"Senator JAVITS. We should all be saintly on a program of this kind.

"Mr. BUTLER. Because it's pretty apparent to me that those who take issue with this decision are sanctioning, in effect, the state power for religious activity. I'd like to make a point that I have not made either in the article or did I make before the Supreme Court of the United States, and that is that I sense that the opposition to this decision is somehow entwined with abdication of parental and ecclesiastical responsibility. I think that the outcome of this decision is pointing out more and more each day the fact that the parents of America to a large extent are relying on the state to inculcate in the minds of their children the belief of God- -a responsibility that should be theirs and should not be the state's responsibility.

"Mr. GRANIK. Mr. Pike has a word here.

"Bishop PIKE. As one very much concerned for religious education-I mean administratively so let me say this: This prayer-the under God and the pledge of allegiance and these other exercises as such-teach very little theology. We certainly cannot rely on them to set forth the framework of the JudeoChristian heritage and perspective on life. But, using these things in the 40 or 50 different ways that we do in our public life is as near neutral as anything we can get. If you leave them all out you have secularism by default-a view of life presented of man and things without God, a time in history without eternity, simply because these things are ignored. So that's not neutrality, because secularism itself is a faith-a view of life taken on faith explaining reality. If you go to this side and you use the Book of Common Prayer, let's say of my tradition, or the Reformed Jewish Prayer Book, or something, then you are inculcating a set of ideas and doctrines and practices of a given view. These things, I regard, not so much as the teaching of religion as simple pointers, little pointers-In God We Trust,' the eye of God on the back of the dollar billHe's not as honored as he used to be due to inflation-but these are little pointers that there may be more. It's not a conflict with what we're doing in the Sunday school or what we're doing at home, but leaves a possibility of room for God. That's all they do, and that's about as near neutral as we can get.

"Mr. GRANIK. Bishop Pike, you've noted in the Reader's Digest debate that American public life is full of official prayers, such as the songs 'God Bless America' and 'America,' the daily recitation of the Pledge of Allegiance to the Flag with reference to 'one nation under God' has become a public school tradition. Questions have also been raised about the use of the fourth stanza of our national anthem for the same reason. Does the Supreme Court decision affect such practices, Mr. Butler?

"Mr. BUTLER. Well, of course not. "Senator TALMADGE. Oh?