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PRAYERS IN PUBLIC SCHOOLS AND OTHER MATTERS

THURSDAY, JULY 26, 1962

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met pursuant to call, at 10:30 a.m., in room 2228, New Senate Office Building, Senator Olin D. Johnston presiding.

Present: Senators Johnston, Ervin, Hart, Hruska, Keating, and Scott.

Also present: L. P. B. Lipscomb, member, professional staff.
Senator JOHNSTON. The committee will come to order.

This hearing has been called for the purpose of taking testimony on certain resolutions introduced in the U.S. Senate in regard to prayers in public schools and certain other matters. Notice was duly published in the Congressional Record on July 19, 1962.

The particular measures involved are Senate Joint Resolution 205, Senate Joint Resolution 206, Senate Joint Resolution 207, Senate Concurrent Resolution 81, and Senate Resolution 356. The text of these resolutions will be inserted in the record at this point.

(The resolutions follow :)

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JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

to permit the offering of prayer in public schools

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitution of the United States which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE"SECTION 1. Nothing contained in this Constitution shall be construed to prohibit the authority administering any school, school system, or educational institution supported in whole or in part from any public funds from providing for the voluntary participation by the students thereof in regularly scheduled periods of nonsectarian prayer.

"SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”

[8.J. Res. 206, 87th Cong., 2d sess.) JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

to permit the use of prayer in public schools Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitu

tion of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE — “SECTION 1. No provision of this Constitution or any article of amendment thereto shall be construed to prohibit nondenominational religious observance through the invocation of the blessing of God or the recitation of prayer, as a part of the activities of any school or other educational institution supported in whole or in part from public revenues, if participation therein is not made compulsory.

“SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”

[S.J. Res. 207, 87th Cong., 2d sess. ] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

permitting the offering of prayers and the reading of the Bible in public schools in the United States, and relating to the right of a State to enact legislation on the basis of its own public policy on questions of decency and morality

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as a part of the Constitution when ratified by the legislatures of three-fourths of the several States:

“ARTICLE — “SECTION 1. Nothing in this Constitution shall prohibit the offering of prayers or the reading of the Bible as part of the program of any public school or other public place in the United States.

“SEC. 2. The right of each State to decide on the basis of its own public policy questions of decency and morality, and to enact legislation with respect thereto, shall not be abridged.

“Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”

[S. Con. Res. 81, 87th Cong., 2d sess. ]
CONCURRENT RESOLUTION

Whereas, from the first permanent white settlements in North America at Jamestown and Plymouth Rock, we have recognized the existence of God and our dependence on Him; and

Whereas the greatest single threat to our political and religious freedom is posed by nations who deny the existence of God; and

Whereas the atheists in our Nation are making a concerted drive to eliminate the recognition of God in our Government as completely as He has been elimiuated in Russia and have recently included in that program the demand to eliminate from public schools not only the voluntary recitation of a prayer, but all hymns, all religious paintings, and all celebrations connected with Christmas and Easter; and

Whereas there never has been a greater need to inculcate in the minds and hearts of the youth of our Nation a reverence for God and faith in His omnipotence; and

Whereas, with that in view, the Board of Regents of the State of New York prepared for voluntary use in the public schools of that State a nonsecular form of civic prayer which merely recognized the existence of God and our dependence on Him; and

Whereas, in the case of Engel against Vitale, the Supreme Court of the United States on June 25, 1962, declared the use of that voluntary prayer to be unconstitutional; and

Whereas the clear implication of that Court action is the outlawing of public recognition of God by any government agency, Federal or State, including a prohibition against employment of chaplains in both branches of the Congress and for all branches of our armed services; and

Whereas the Congress desires to go on record as reaffirming that we are one nation under God and are desirous of passing on to generations yet unborn that rich heritage: Now, therefore, be it

Resolved by the Senate (the House of Representatives concurring), That it is the sense of the Congress that the designation by a public school authority of a nonsectarian prayer for use, as a part of the activities of a public school, does not constitute an establishment of religion or an infringement of the doctrine of separation of church and state in violation of the Constitution of the United States, if participation in the offering of that prayer by individual students is not made compulsory.

[S. Res. 356, 87th Cong., 2d sess.]

RESOLUTION Resolved, That it is the sense of the Senate that,

(a) notwithstanding the recent Supreme Court decision which held that it is in violation of the first amendment of the Constitution to prescribe an official State prayer to be offered in a public school, any public school system if it so chooses may provide time during the school day for prayerful meditation if no public official prescribes or recites the prayer which is offered ; and

(b) providing public school time for prayerful meditation in no way violates the Constitution because each individual participating therein would be permitted to pray as he chooses, but that such practice is consonant with the free exercise of religion protected by the first amendment to

the Constitution. Senator JOHNSTON. All of these resolutions are the outgrowth of decisions rendered by the Supreme Court of the United States on June 25, 1962. The one primarily concerned by all of the resolutions is the case of Stephen I. Engel et al., petitioner, v. William J. Vitale, Jr., et al., No. 468, October term, 1961. The text of this decision will be inserted in the record at this point.

(The decision follows:)

SUPREME COURT OF THE UNITED STATES

No. 468—October Term, 1961
STEVEN I. ENGEL ET AL., PETITIONERS, V. WILLIAM J. VITALE, JR., ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

[June 25, 1962] MR. JUSTICE BLACK delivered the opinion of the Court.

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”

This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system. These state officials composed the prayer which they recommended and published as a part of their “Statement on Moral and Spiritual Training in the Schools,” saying: "We believe that

1 See New York Constitution, Art. V, $4; New York Education Law, $8101, 120 et seq., 202, 214-219, 224, 245 et seq., 704, and 801 et seq.

this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program."

Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion”-a command which was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution.” The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection." We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.

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 :

“The religious nature of prayer was recognized by Jefferson and has been concurred in by theological writers, the United States Supreme Court and State courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed.

“The Board of Regents as amicus curiae, the respondents and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. ..."

The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, 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.

2 10 N.Y. 2d 174, 176 N.E. 2d 579. The trial court's opinion, which is reported at 18 Misc. 2d 659, 191 N.Y.S. 2d 453, had made it clear that the Board of Education must set up some sort of procedures to protect those who objected to reciting the prayer; "This is not to say that the rights accorded petitioners and their children under the free exercise' clause do not mandate safeguards against such embarrassments and pressures. It is enough on this score, however, that regulations, such as were adopted by New York City's Board of Education in connection with its released time program, be adopted, making clear that neither teachers nor any other school authority may comment on participation or non participation in the exercise nor suggest or require that any posture or language be used or dress be worn or be not used or not worn. Nonparticipation may take the form either of remaining silent during he exercise, or if the parent or child so desires, of being excused entirely from the exercise. Such regulations must also make provision for those non participants who are to be excused from the prayer exercise. The exact prov sion to be made is a matter for decision by the board, rather than the court, within the framework of constitutional requirements. Within that framework would fall a provision that prayer participants proceed to a common assembly while nonparticipants attend other rooms, or that non participants be permitted to arrive at school a few minutes late or to attend separate opening exercises, or any other method which treats with equality both participants and nonparticipants.” 18 Misc. 2d, at 696, 191 N.Y.S. 20. at 492-493. See also the opinion of the Appellate Di reported at 11 App. Div. 2d 340, 206 N.Y.S. 2d 183.

3 368 U.S. 924.
4 18 Misc. 20, at 671-672, 191 N.Y.S. 2d, at 468–469.

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliaments in 1548 and 1549, set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England. The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs. Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England's governmentally ordained and supported religion.

It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. But the successful Revolution against English political domination was

52 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service and Administration f the Sacraments throughout the Realm” ; 3 & 4 Edward VI, c. 10, entitled "An Act for the abolishing and putting away of divers Books and Images."

6 The provisions of the various versions of the Book of Common Prayer are set out in broad outline in the Encyclopedia Britannica, Vol. 18 (1957 ed.), pp. 420–423. For a more complete description, see Pullan, The History of the Book of Common Prayer (1900).

7 The first major revision of the Book of Common Prayer was made in 1552 during the reign of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was succeeded by Mary who abolished the Book of Common Prayer entirely. 1 Mary, c. 2. But upon the accession of Elizabeth in 1558, the Book was restored with important alterations from the form it had been given by Edward VI. 1 Elizabeth, c. 2. The resentment to this amended form of the Book was kept firmly under control during the reign of Elizabeth but, upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was presented to King James I asking for further alterations in the Book. Some alterations were made and the Book retained substantially this form until it was completely suppressed again in 1645 as a result of the successful Puritan Revolution. Shortly after the restoration in 1660 of Charles II, the Book was again reintroduced, 13 & 14 Charles II, c. 4, and again with alterations. Rather than accept this form of the Book some 2,000 Puritan Ministers vacated their benefices. See generally Pullan. The History of the Book of Common Prayer (1900), pp. vii-xvi; Encyclopedia Britannica (1957 ed.). Vol. 18, pp. 421-422.

8 For example, the Puritans twice attempted to modify the Book of Common Prayer and once attempted to destroy it. The story of their struggle to modify the Book in the reign of Charles I is vividly summarized in Pullan, Hisory of the Book of Common Prayer, at p. xiii: "The King actively supported those members of the Church of England who were anxious to vindicate its Catholic character and maintain the ceremonial which Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader of this school. Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had made large concessions to the uncouth habits of Presbyterian worship, to draw up a Book of Common Prayer for Scotland. It contained a Communion Office resembling that of the book of 1549. It came into use in 1637, and met with a bitter and barbarous opposition. The vigour of the Scottish Protestants strengthened the hands of their English sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use of the Book of Common Prayer was prohibited."

9 For a description of some of the laws enacted by early theocratic governments in New England, see Parrington, Main Currents in American Thought (1930), Vol. 1, pp. 5-50 ; Whipple, Our Ancient Liberties (1927), pp. 63–78; Wertenbaker, The Puritan Oligarchy (1947).

10 The Church of England was the established church of at least five colonies : Mary. land, Virginia, North Carolina, South Carolina and Georgia. There seems to be some controversy as to whether that church was officially established in New York and New Jersey but there is no doubt that it received substantial support from those states. See Cobb, The Rise of Religious Liberty in America (1902), pp. 338, 408. In Massachusetts, New Hampshire and Connecticut, the Congregationalist Church was officially established. In Pennsylvania and Delaware, all Christian sects were treated equally in most situations but Catholics were discriminated against in some respects. See generally Cobb, The Rise of Religious Liberty in America (1902). In Rhode Island all Protestants enjoyed equal privileges but it is not clear whether Catholics were allowed to vote. Compare Fiske, The Critical Period in American History (1899), p. 76 with Cobb, The Rise of Religious Liberty in America (1902), pp. 437–438.

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