that this letter and the attached statement be included in the record your committee is making.

Of course, Mr. Chairman, if you desire that I appear before the committee, I will make every effort to do so, whatever the time.

Sincerely yours,

JOHN H. RAY, Member of Congress.

STATEMENT SUBMITTED BY JOHN H. RAY, NEW YORK

The basic facts and the question decided by the Supreme Court are simple. In 1951, the New York State Board of Regents unanimously adopted a statement of belief which included its so-called regents' prayer, which has been read into the committee record. That prayer has been written by board employees. In 1955 the board unanimously adopted a further recommendation for school programs on America's moral and spiritual heritage, including the regents' prayer. The District Board of Education in Hempstead, Long Island, in July 1958, directed its district principal that the regents' prayer be said daily, in all schools of the district, following the salute to the flag.

In December 1958, Engel and other parents demanded that the saying of said prayer be discontinued. The board took no action, and, in January 1959, Engel and others instituted the litigation under discussion by petition and notice of motion in the Supreme Court of the State of New York, County of Nassau, asking a writ of mandamus to compel the Board of Education of Union Free School, District No. 9, New Hyde Park, N.Y., to discontinue the saying of that prayer. No exception was taken to the actions of the board of regents. The action of the local board, in requiring daily use of the specified prayer, was the focal point in issue.

Respondents' answer, as well as the board of regents' statement of belief, are very interesting documents, but, at this point, I need only say that the answer denied all of the petitioners' alleged claims of illegality. Petitioners duly filed their reply.

The case was referred to Mr. Justice Meyer, and, on August 24, 1959, he filed his opinion. He defined the issue and his conclusion in these words: "Respondents' school board, having followed the regents' recommendation and directed recital of the prayer, the question presented to this court is whether, as a matter of power, rather than as a question of policy, it may legally do so."

Justice Meyer's opinion is long-more than 60 printed pages-and I present here only a few selected passages:

"For reasons hereafter set forth at length, it is held that while the board may authorize, it may not require, the saying of the prayer in question, but that if it does so, it must bring the authorization to the attention of parents of children in the schools, establish a procedure for excusing nonparticipants not only from saying the prayer but from the room, if they so elect, and take affirmative steps to protect the religious freedom of both nonparticipants and participants" (record, p. 58).

“It is, however, also contended that the recognition of prayer is an integral part of our national heritage, and that, therefore, the 'establishment clause' cannot have been intended to outlaw the practice in schools any more than from the rest of public life; that is, that prayer in the schools is permissible not as a means of teaching 'spiritual values' but because traditionally and particularly at the time of the adoption of the 1st and 14th amendments, this was the accepted practice. With this argument, the court agrees" (record, p. 70).

*** the prayer exercises would nevertheless be objectionable if there were direct compulsion. The board's resolution of July 8, 1958, is framed in mandatory terms. While the answering affidavit states that direction has been given that no child shall be coerced, or in any manner persuaded to participate, there is no indication that either the resolution or the direction has been brought to the attention of either the parents or the children. This is not a situation such as pertained in the Zorach case, where prior parental consent has been obtained. In view of that fact, and in view of the fact that a schoolchild cannot be expected to understand that a resolution, framed in mandatory terms, may be violated with impunity, or that such a child, not advised of his right to do so, will not normally be sufficiently aggressive to claim his constitutional privilege not to participate, the court holds that the resolution of July 8, 1958, in its present form is objectionable. The matter will, therefore, be remanded to the board for modification of its resolution to establish a procedure whereby the parents of each child are advised of the adoption of the resolution calling for the saying of the

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 no 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 CAROLINA

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 dilly dally. 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."

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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