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prayer, of the wording of the prayer, and of the procedure to be followed when it is said, and requested to indicated whether the child shall or shall not participate in the exercise” (record, pp. 105–106).
And again : "In summary, the petition, as amended, is held legally sufficient, the board's defenses are held insufficient and are dismissed, the petitioners' demand for a jury trial is denied for the reason that there is no triable issue of material fact, and the request for mandamus is, as a matter of discretion denied but the matter is remanded to the board for further proceedings, not inconsistent with the foregoing” (record, p. 116).
The petitioners appealed successively to the appellate division and then to the highest court of the State, the court of appeals. Justice Meyer's decision was affirmed by each of those courts.
The appellate division, by 4-to-1 vote, affirmed the order appealed from and stated "We agree with the views expressed in the opinion of the learned justice at special term” (record, p. 125). The court of appeals affirmed by 5-to-2 vote. Thus in the State courts nine judges upheld Justice Meyer's decision, and three judges differed. The two dissenting judges in the court of appeals expressed views closely similar to those later formulated by the U.S. Supreme Court.
After the court of appeals' decision, the school board complied with the requirements of notice to parents as set forth by Justice Meyer and the lower court, then entered its final decree dismissing the case. Later, in 1961, Engel and other petitioners obtained certiorari for review by the Supreme Court of the United States of the constitutional issues involved. On June 25, 1962, that Court handed down the decision under discussion. I quote the following passages from the Court's opinion:
“We think that by using its public school system to encourage recitation of the regents' prayer, the State of New York has adopted a practice wholly inconsistent with the establishment clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious; none of the respondents has denied this, and the trial court expressly so found" (p. 3).
** * * petitioners argue the State's use of the regents' prayer in its public school system breaches the constitutional wall of separation between church and state. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must, at least, mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government” (p. 4).
government in this country, be it State or Federal, is without power to prescribe, by law, any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.
"There can be no doubt that New York's State prayer program officially establishes the religious beliefs embodied in the regents' prayer (p. 8).
"The New York laws officially prescribing the regents' prayer are inconsistent with both the purposes of the establishment clause and with the establishment clause itself” (p. 12).
“It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance” (p. 14).
"The judgment of the Court of Appeals of New York is reversed and the cause remanded for further proceedings not inconsistent with this opinion" (p. 15).
This case has had careful court consideration four times : first by a single judge of the New York Supreme Court, then by the appellate division in New York, then by the New York Court of Appeals, and last by the Supreme Court of the United States. All four courts dealt with the case as one raising the issue of whether or not the local school board had the power under the Constitution to take the action in issue. All four courts were in agreement that if the element of compulsion was present, the relief sought by petitioners should be granted.
The three State courts decided that the element of compulsion would not be present if the respondent members of the local school board gave written notice to the parents and the children of the content of the prayer and made clear that nu student would be compelled to participate in or attend during the saying of
the prayer. That notice was given and thereafter the State court dismissed the case.
The Supreme Court of the United States found that in requiring the saying of a prayer prepared by a State authority, the school board exceeded its constitutional powers. It found, in other words, that the school board's action involved a kind and degree of compulsion which made that action unconstitutional.
It is clear that the Supreme Court's decision did not "outlaw” any prayer. The Court merely set aside a local school board order that a prayer which had been prepared and recommended by the State board of regents be said daily in the local schools. As one judge in a State court said, “While the board may authorize, it may not require the saying of the prayer in question.”
STATEMENT OF U.S. REPRESENTATIVE L. MENDEL RIVERS, DEMOCRAT, OF SOUTH
* * * *
Mr. Chairman, when the first President of our great Nation, George Washington, was inaugurated, he said in his opening address :
“It would be peculiarly improper to omit in this first official act my fervent supplication to that Almighty Being who rules over the universe, who presides in the councils of nations and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a government instituted by themselves for these essential purposes
Down through the glorious pages of the history of our Nation the inaugurations of our Chief Executives have been marked with prayer until this date.
Our colleagues in the House, in the Senate, and other governmental bodies also prayerfully recognize the existence of Almighty God.
How many ways we express our need and utter dependency on the Almighty in our daily life.
How desperate is the need of a faith for which we will fight, even die.
Now because of the unwarranted, unprecedented ruling by the Supreme Court, we today are suspended in uncertainty. Shall we leave prayer in schools under the suspicion of lawlessness?
Has our country drifted so far from the Almighty that we must bootleg religion into the public schools?
Is prayer to our Lord again to be ultimately driven to the secrecy of homes or the catacombs?
Mr. Chairman, I pray not.
Prayer in our schools is a product of our national heritage. We dare not abrogate nor abolish it. To do so would put our national soul in peril.
Let us remember Moses' ancient admonition to Israel: “Beware lest thou forget God. And if you forget the Lord your God I solemnly warn you this day that you shall surely perish. Like the nations before you
you shall surely perish.”
Mr. Chairman, this Nation will not survive it will perish just as warned by Moses if we permit prayer to die, if we permit our Nation to become a nation of agnostics, of skeptics, of atheists.
The Supreme Court declared prayer unconstitutional in public schools.
I believe it is mandatory for our survival as a nation to amend this atheistic ruling; that is, assuming such a ruling is constitutional. However, I question where the Supreme Court found its authority in the Constitution to render such a ruling.
The Court in its opinion cites no precedent or authority for its decision, but bases it solely on its interpretation, or misinterpretation, of the language of the Constitution.
In order to determine the authority of the Supreme Court, it is necessary to find it in the language of the Constitution itself.
The original Constitution nowhere mentions the subject of religion. The power of the Supreme Court to declare acts of Congress or actions of the sovereign States unconstitutional, is itself an outgrowth of interpretations and constructions of a previous Court, because no such specific power is found in the Constitution.
You must look to the amendments to the Constitution to find such authority, if you would assume such authority exists.
Shortly after the ratification of the Constitution by the States and to meet objections raised to it in the ratification debates in the State legislatures, the first 10 amendments known as the Bill of Rights were adopted.
No doubt the first amendment is the one under which the Supreme Court assumed the authority for its decision. But the first amendment only said, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
It is difficult to understand how the few words quoted from the first amendment that merely prohibit Congress, not the States, from establishing a religion, could be construed as a restraint upon the legislative prerogatives of the sovereign States.
The first amendment does not operate against the States, and the 10th amendment reserved to the States all powers not prohibited by the Constitution.
So how does the Supreme Court stretch the first amendment into a prohibition against State government?
It is time that the American people reexamine the basic document that forms the foundation of our American Government. It is time also to reexamine the fallacious theory that the Supreme Court is empowered by the Constitution to make "the law of the land.”
If powers have been assumed by the Government that exceed those granted by the Constitution—and I believe they have—the remedy is wisely provided in the Constitution itself by means of an amendment.
The time has come for us to make perfectly clear to the world how we stand in the matter of religion. If we are satisfied to be a pagan nation, then let us say so. If we want to declare to the world we are a God-fearing people, tolerant of one another's doctrinal differences, but united in theistic commitment, let us say so. But let us not dillydally. Let us not leave suspended in unresolved judiciary controversy a matter such as this.
Let us clearly resolve this matter through amending the atheistic ruling.
TEXT OF TESTIMONY OF JOHN DE J. PEMBERTON, JR., EXECUTIVE DIRECTOR OF THE
AMERICAN CIVIL LIBERTIES UNION
(Prepared in August 1962 but not submitted when hearings were ended) I appear today to oppose the several resolutions that have been introduced in the Senate to amend the Constitution to allow prayers to be recited in the public schools. The proposed amendments are designed to overturn the recent Supreme Court decision in Engel v. Vitale (370 U.S. 421).
At the outset, I wish to make it perfectly clear that the American Civil Liberties Union fully supports the decision in Engel. We found Mr. Justice Black's opinion a sound and restrained exposition of the establishment clause. It is rich in historical evidence which demonstrates the evils that the establishment clause was designed to forestall.
Critics of the decision who assert that it was too broadly written—that it failed to pinpoint where the prayer violated the Constitution and what was its relationship to the history of religious oppression so eloquently set forth by Mr. Justice Black—reflect a longing for a mechanical system of jurisprudence that would enable the Supreme Court to produce its answers with the same precision as do mathematicians. It is the happy lot of mathematicians, Mr. Justice Holmes once said, that they do things better with logarithms.
But we think the opinion makes the basis of its holding perfectly clear. By setting forth in some detail the travails that have historically attended the combination of church and state, Mr. Justice Black lays bare the purposes that the Founding Fathers intended the establishment clause to serve. He did not assert that any of these unhappy conditions now existed in the United States, but it was his purpose to show that they do not exist precisely because the first amendment to the Constitution does.
The opinion goes on to show that the regent's prayer, composed by the State and recited by directive in its schools, was a State-supported religious activity. That there was no direct governmental compulsion to recite the prayer is of no moment for, as the opinion says, “The establishment clause * * * is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."
The decision then was inevitable that the practice was constitutionally impermissible, even though the Court recognized "that the prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago.” But no matter how slightly it might breach the wall of separation between church and state, “It is proper," as James Madison is quoted as saying, “to take alarm at the first experiment on our liberties.” That, in our view, is the crux of the opinion and it is regrettable that it has generally been overlooked in the clamor that followed on the Court's decision.
Nor is the decision of the Court antireligious, irreligious, or sacrilegious. The Court frankly anticipated these charges and met them directly, but we need not rely on its ipse dixit, for there are independent reasons that support this conclusion.
Public schools that are free of religious practices do not imply indifference to religion. On the contrary, that policy recognizes that religion is a very important, but entirely private, affair—perhaps the essence of privacy—and is the one aspect of human conduct that we can confidently say should be totally in the domain of the home and the church and outside of the domain of government. A person's religious beliefs and activities cannot be intruded upon by any official of the state, nor should any official version of religion be imposed on any group of citizens. That the regent's prayer was relatively insignificant and supposedly nondenominational hardly justifies its recitation. On the contrary, an activity denominated as religious which is justified on the ground that it is the lowest common denominator of all religions, for that reason offends the consciences of many deeply religious persons. It can only be a distillate of platitudes that contains none of the meaningful declarations of faith upon which each religion is individually founded.
The charge is also made that the Supreme Court has secularized the schools. We think that kind of criticism fails to take into regard the purpose of the establishment clause and misleadingly focuses on its incidental effects. The purpose of the clause is to keep the Government out of all religions and religious activity. If its intrusion takes it into the schoolhouse, it is no less a violation of the first amendment than if it took it directly into the church. Those parents who wish to have their children educated in a religious atmosphere are free to have them attend parochial schools, or attend religious classes in church. They are not only free to do so, but their right to do so is affirmatively protected by the first amendment.
The clamor, then, in our view, is the result of unfamiliarity with the historical background of the establishment clause, and insensitivity to the danger the clause is intended to avert; namely, the threat to the free exercise of religion. There are endless ways in which free religious exercise can be trampled upon even where there is no established church. But the fear that establishment, even in an embryonic form, posed special dangers to freedom of religion persuaded the Founding Fathers that its prohibition deserved special expression adjacent to the guarantee of freedom of religion. As Justice Black said, “These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” To assert, as so many have, that this danger is unreal because it could not arise in the United States is to confuse cause and effect. Actually, it will not arise only so long as the establishment clause is vigorously enforced, as it has been in the Engel case.
The question that inevitably arises is how far the Supreme Court decision goes. As far as the ACLU is concerned, it supports our long-held position that all religious activity is forbidden in the public schools. That includes the rituals of reciting the Lord's Prayer or excerpts from the Bible, and Christmas, Easter, and Hanukkah pageants; all activity that serves to indoctrinate religion. It does not exclude teaching factually about religion, as a historical or social fact, any more than it excludes teaching about the Crusades or the Reformation. Certainly, public schools may explain the meaning of a religious holiday as viewed by adherents of the religion of which it is a part, but may not seek to foster a religious view in the classroom or otherwise. It is indoctrination of religious belief that is forbidden, not the communication of information presented in an objective setting.
The criticisms of the Court, however, have gone beyond all reasonable bounds. Rather than discuss the real issues at hand, it seems that the inscription "In God We Trust,” on U.S. coins and currency, has suddenly won the jealous
attention of most of our population, the Pledge of Allegiance and “The StarSpangled Banner" are said to be in dire jeopardy, and even the Declaration of Independence, which refers to the Deity, seems to be threatened with outlawry. No one, however, appears to have noticed that Mr. Justice Black expressly pointed out that “such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." (The statement presumably went unnoticed, because it was contained in a footnote which was not carried even in the New York Times' reproduction of the Court's opinion.)
At bottom, what this entire controversy involves, of course, is the question how the establishment clause is to be interpreted. In our view, it not only means that the Government may not favor or support a particular religion, but neither may it assist, even on a nondiscriminatory basis, all religions. Its role must be neutral where religion is concerned. It can do nothing to favor religion, nor can it do anything to interfere with religious liberty. Religion is no concern of the state, for once it takes any step to involve itself in religious activity, directly or indirectly, it takes the first step toward infringement upon the free exercise of religion guaranteed to all citizens.
STATEMENT OF THE AMERICAN ETHICAL UNION AND OF ITS NATIONAL LEADERSHIP
ON THE PROPOSED SCHOOL PRAYER AMENDMENTS TO THE U.S. CONSTITUTION
(Adopted by the Fraternity of Leaders of the American Ethical Union, September
11, 1962; adopted by the American Ethical Union, October 15, 1962) In the New York School Prayer case recently decided by the U.S. Supreme Court, the American Ethical Union filed an amicus curiae brief before that Court, supporting the petition of the parent petitioners, one of whom is a member of an ethical culture society.
It is sometimes asserted that this controversy is between religionists and antireligionists. We ethical culturists reject this interpretation. We see the issue as between those who would maintain and strengthen the wall of separation between church and state and those who would breach that wall. We see our position as one in defense of the privacy of religious conscience.
The concept of freedom of thought and privacy of judgment in religious matters is so deeply ingrained in our faith as to be an essential part of our belief. A fundamental tenet of ethical culture is the conviction that moral and spiritual values can be cultivated most fully on the basis of respect for the worth of the individual person, without requiring any theological belief or disbelief. We do not impose upon our membership any theological position, but rather encourage freedom of thought within the bounds of moral responsibility. We deplore the intrusion of any public agency, legal or quasi-legal, into this area of personal religious conscience. We believe that it is equally wrong for the State to teach atheism or to teach any theological belief whatever.
The basis of our objection to religious ceremonials, including prayers, in the public schools is religious rather than irreligious. We would point to the fact that religion flourishes when left to private conviction and wanes when reduced to a pattern of ceremonial formalism.
Religion took a long step toward moral responsibility when the prophets of ancient Israel dared to admonish kings and their ministers. It is worth noting that this spiritual witness was accomplished by religious dissenters, now honored as prophets, who followed their own spiritual vision in opposition to the practices of the priestly functionaries of the official cult. History teaches us again and again that religion is corrupted as soon as it serves Caesar. Religious faith may have the practical effect of preventing juvenile delinquency or of discouraging communism. But the willful manipulation of religion for the sake of preventing juvenile delinquency or of discouraging communism will have quite different results. The high purpose to which religious faith is called is the service of its own spiritual vision; and its willful use for any other objective is a perversion of its consecration. Caesar cannot direct the vision of faith, no matter how lofty or enlightened Caesar's purposes may be.
Thus, quite apart from constitutional prohibitions, there are substantial historical and ethical reasons for believing that the sponsorship of public school religion is contrary to the spiritual integrity of religion itself.