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Thus, it is by no means a new or revolutionary idea that the sectarian character of the Bible makes daily reading from it in public schools a violation of the traditional American concept of religious freedom as embodied both in the Federal Constitution and in the provisions regarding religious freedom in many State constitutions. As long ago as 1910, the Supreme Court of Illinois said:
"Christianity is a religion. The Catholic Church and the various Protestant churches are sects of that religion. These two versions of the Scriptures are the bases of the religion of the respective sects. Protestants will not accept the Douay Bible as representing the inspired word of God. As to them it is a sectarian book containing errors and matter which is not entitled to their respect as a part of the Scriptures. It is consistent with the Catholic faith but not the Protestant. Conversely, Catholics will not accept the King James version, as to them it is a sectarian book inconsistent in many particulars with their faith, teaching what they do not believe. The differences may seem to many so light as to be immaterial, yet Protestants are not found to be more willing to have the Douay Bible read as a regular exercise in the schools to which they are required to send their children, than are Catholics to have the King James Version read in schools which their children must attend" (People ex rel. Ring v. Board of Education, 245 Ill. 334). The question of compulsion
We believe that another fallacious assumption is made in those proposed amendments that would permit religious exercises in the public schools pro vided they are “voluntary.” Particularly where children are involved and particularly in respect to children who are in the public schools by compulsion of law, nonphysical coercion, influence, and pressure must be recognized as affecting the “voluntariness” of participation in religious practices.
This, too, has been recognized by many American jurists over a period of many decades. Thus, 50 years ago, the Supreme Court of Illinois rejected the argument that pupils were free to exclude themselves from religious practices in the following words:
"That suggestion seems to us to concede the position of the plaintiffs in error. The exclusion of a pupil from this part of the school exercises in which the rest of the school joins, separates him from his fellows, puts him in a class by himself, deprives him of his equality with the other pupils, subjects him to a religious stigma and places him at a disadvantage in the school, which the law never contemplated. All this is because of his religious belief” (People ex rel. Ring v. Board of Education, 245 Ill. 334, 351).
Twenty years earlier, the Supreme Court of Wisconsin made a similar observation:
"When * * * a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, particularly when such a cause is apparent hostility to the Bible which a majority of the other pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy the equality of the pupils which the Constitution seeks to establish and protect, and puts a portion of them to serious disadvantage in many ways with respect to the others" (State ex rel. Weiss v. District Board, 76 Wis. 177, 199–200).
An Iowa court came to the same necessary conclusion:
“Conceding, for argument's sake, that such attendance was voluntary, in the sense that no requirement or command was laid upon non-Catholic pupils to attend or take part in such exercises, yet, surrounded as they were by a multitude of circumstances all leading in that direction, impelled by the gregarious instincts of childhood to go with the crowd, and impressed with a sense of respect for their teachers, whose religious principles and church affiliation were unceasingly pressed upon their notice by their religious dress and strictly ordered lives, could a responsible person expect the little handful of children from nonCatholic families to do otherwise than to enter the invitingly opened door of the church, and receive, with their companions, the instructions there given ?” (Knowlton v. Baumhover, 182 Iowa 691, 699–700).
See also Kaplan v. Independent School District of Virginia (171 Minn. 142, 155–156), dissenting opinion :
"To excuse some children is a distinct preference in favor of those who remain and is a discrimination against those who retire. The exclusion puts a child
in a class by himself. It makes him religiously conspicuous. It subjects him to religious stigma. It may provoke odious epithets. His situation calls for courage.”
The most searching examination of the claim of voluntarism in respect to introduction of religious practices in the public school program was made in the case of Tudor v. Board of Education of the Township of Rutherford (14 N.J. 31, 100 A. 2d 857, cert. denied, 348 U.S. 816). There, speaking for a unanimous court, Chief Justice Vanderbilt, after examining the various authorities, overruled the contention of voluntarism on the ground that it “ignores the realities of life."
The court's opinion contains the following (14 N.J. 31 at 50):
"Prof. Isidore Chein, supervisor of psychology and acting director of the Research Center for Mental Health at New York University, testified on behalf of the plaintiff :
""* * * I would expect that a slip of this kind, distributed under the authority of the school, would create a subtle pressure on the child which would leave him with a sense that he is not quite as free as the statement on that slip says; in other words, that he will be something of an outcast and a pariah if he does not go along with this procedure.
“6* * * I think that they would be in a situation where they have to play along with this or else feel themselves to be putting themselves in a public position where they are different, where they are not the same as other people, and the whole pressure would exist on them to conform.'”
Children of minority religious groups, particularly, are faced with a dilemma whenever religion intrudes upon the public school-a dilemma which is always hard and frequently cruel. They must either subject themselves to being singled out as nonconformists or they must participate in religious practices and teachings at variance with those they learn at home or in their religious schools. It is understandable that not infrequently some of them choose the second alternative as the lesser evil, and that Catholic and Jewish children will participate in Protestant religious practices in violation of their religious convictions and upbringing rather than subject themselves to the pain of not belonging.
We submit that, as long as we retain our attachment to the principles of separation and religious freedom, American children should not be placed in this dilemma by public school authorities. They should not be compelled to choose between being forced or influenced to profess a religious belief or disbelief and being punished for refusing to profess such belief or disbelief. It was to avoid the oppression and bitterness which Old World experience had shown to be an inevitable concomitant of governmental intrusion in religion, that the fathers of our country gave constitutional protection to the principle that “religion is wholly exempt from [government's] cognizance" (Madison's "Memorial and Remonstrance Against Religious Assessment," annexed as appendix to Everson, 330 U.S. at 63). Religious compulsion and oppression, we submit, should not be allowed in the public schools even in a mild or subtle form.
CONCLUSION An alteration in the U.S. Constitution designed to impair the broad protection of the first amendment in the field of religion so as to allow prayer recitations in public schools would strike at a fundamental principle of the American democratic system-a principle that has stood the tests of almost two centuries. It is no answer to say that only a small departure from principle is suggested. The recitation of a short prayer, or the reading of a few verses from the Bible in the public schools might not seem to present major threats to the principles of separation and religious liberty. Yet these practices are far from trivial to those whose religious convictions compel their rejection.
Even if these encroachments were in themselves minor, they would still be a danger to the American secular public school system and the principles of separation and religious liberty. We are dealing with an area in which every sanctioned encroachment is used to justify further encroachment. A constitutional amendment in the direction of an establishment of religion, or of an infringement of religious liberty is an amendment ultimately destructive of these principles, since the first step logically involves the last.
It was with remarkable prescience that Madison warned that “the same authority which can force a citizen to contribute 3 pence only of his property for the support of any one establishment, may force him to conform to any other estab
lishment in all cases whatsoever.":? Today, as in Madison's day, "we must say that the will of the legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or that they are bound to leave this particular right untouched and sacred." 8
We submit that it was the purpose of the fathers of our Constitution and the first amendment to leave the right to religious liberty and a state separated from the church "untouched and sacred.” Adherence to that peculiarly American principle has resulted in the elevation of religion in the United States to a status of strength and influence unparalleled in the world and in the evolution of a system of public education for all children free of sectarian strife and controversy. Preservation of those institutions requires continued faithful adherence to the principles expressed in the first amendment. This, in turn, requires opposition to the proposed constitutional amendments before this committee. Respectfully submitted.
Rabbi Dr. JOACHIM PRINZ,
THE AMERICAN LEGION,
Washington, D.C., November 29, 1962. Hon. JAMES 0. EASTLAND, Chairman, Senate Judiciary Committee, Washington, D.C.
DEAR MR. CHAIRMAN: The American Legion is vitally concerned with the controversy over the recitation of prayers in public schools which was precipitated by the Supreme Court decision in June 1962.
When hearings were held by your committee, shortly after the Court decision was announced, The American Legion did not have an official position regarding this issue.
The 1962 National Convention of the American Legion, October 9–11, gave serious consideration to this matter, and unanimously approved resolution No. 25, a copy of which is attached. The position thus taken by the American Legion is in advocacy of a constitutional amendment which would permit prayer of a free and voluntary nature in public schools and other public places.
We are informed that the record of the hearings has not been closed. We would appreciate very much the inclusion of the text of Resolution No. 25 in the printed record of the above-mentioned hearings and would urge that serious consideration be given to the recommendations of the American Legion contained therein. With warm personal regard, I am, Sincerely yours,
CLARENCE H. OLSON, Director.
RESOLUTION 25, 44TH ANNUAL NATIONAL CONVENTION OF THE AMERICAN LEGION,
LAS VEGAS, NEV., OCTOBER 9-11, 1962
Whereas The American Legion recognizes that there is a Divine Superior Being, all powerful, and recognizes that each citizen has the right to worship the Supreme Being in such manner as each citizen deems proper, through prayer and daily deed; and
Whereas this right is personal to each citizen of these United States and should always remain a personal right and privilege; and
Whereas The American Legion confirms and recognizes its first duty is to God and its second is to country, and further confirms its primary purpose is to preserve and perpetuate these principles; and
Whereas the Supreme Court of the United States in its decision of Engel et al. v. Vitale, et al., decided June 25, 1962, finds that the following 22-word prayer
7 "Memorial and Remonstrance," par. 3, annexed as appendix to Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947).
prescribed by the board of education of Union Free School District No. 9, New Hyde Park, N.Y., on the recommendation of the State board of regents : “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country,” violates the 1st and 14th amendments to the Constitution of the United States insofar as the said State board of regents could not prescribe the aforesaid prayer and prescribe that the same be read by a teacher at the start of each classroom day: Now, therefore, be it
Resolved, by The American Legion duly assembled in national convention in Las Vegas, Nev., October 5-11, 1962, That the Congress of these United States propose, pass, and submit to the several sovereign States for ratification a constitutional amendment that would enable spoken prayer of a free and voluntary nature to be said in any and every location and place, including public schools, where citizens of the United States may gather, so that all persons may recognize a Supreme Being; and, be it further
Resolved, That pending the ratification of such constitutional amendment:
1. Parents be urged without delay to agree upon a prayer acknowledging our dependence upon God and asking His blessings, and that they request local school boards to permit the voluntary recitation of such a prayer by children at the beginning of each schoolday;
2. School boards be urged to grant said permission in timely manner, assured that such official act granting permission would not be the establishment of any procedure of the nature prohibited in the regents' prayer decision or prohibited by the first amendment of the Constitution; and
3. The national commander of The American Legion immediately request the Americanism Commission to formulate a procedure whereby all posts of The American Legion will forthwith take the initiative in encouraging parents and school boards to implement the aforesaid procedure.
STATEMENT OF ANTI-DEFAMATION LEAGUE OF B'NAI B’RITH The Anti-Defamation League of B'nai B'rith appreciates this opportunity to state its views on the several resolutions before the Senate Judiciary Committee which would amend the establishment-of-religion clause of the first amendment to the Constitution because of disagreement with the Supreme Court's decision in the Regents' Prayer case.
We would note at the outset that many of the resolutions introduced and the congressional speeches made following the Court's decision in Engel v. Vitale seem quite unrelated to the specific ruling in that case. The conclusion is inescapable that the furor generated by the decision was not so much a response to the majority opinion of the Court as an emotional reaction either to imprecise newspaper headlines or to the obiter dicta of the single concurring opinion.
We believe it unnecessary, if not presumptuous, to reargue the Regents' Prayer case to show that the Court correctly decided the issue under the Constitution. What we submit here is that the Court's decision is at once in the best interest of the American polity and of authentic religion.
The great foreign observers of American life, James Bryce and Alexis de Tocqueville, wrote, a century ago, with admiration-and no little envy—of the striking success of the American experiment with the principle of separation of church and state. They found the American Government relatively free of the religious pressures and controversies which beset the countries of Europe, even those countries where the population was religiously homogeneous. At the same time, they reported that religious life in America was all the more vigorous and pure because American churches had to stand on their own feet without that support of government which inevitably entails intervention, compromise, and subservience.
What these observers reported over the past century is all the more true today. The churches and synagogues of America are more numerous, more solvent and better attended than they have ever been. To change the establishment-of-religion clause under which they have prospered is to open a Pandora's box. Current pressures for Government aid to religious institutions are great but manageable. Although violations of the first amendment are not uncommon, the great majority of Government officials understand the constitutional mandate and respect it. To change that language would provide not only for so-called nondenominational school prayers, but would inevitably introduce uncertainty, temptation, and increased pressures for Government favors.
The real dangers which lie in tampering with the first amendment are clear; they outweigh the claimed benefit from the recitation by rote of an officially sanctioned prayer. Theologians tell us such recitation is of dubious religious value; teachers tell us it is educationally unsound. The experience of the countries that became Communist or Fascist and where religion was degraded reinforces this advice in the past, these regimented states were largely characterized by regimentation in religion and prayer.
The Anti-Defamation League of B'nai B'rith includes a great number of people who devoutly worship God, and to whom religion is a matter of the most serious moment. The Reverend Dean Kelley, executive director of the department of religious liberty of the National Council of Churches of Christ, has been gracious enough to say of the Jews, “They have a genuine religion concern centuries older than Christianity, that faith should not be external, mechanical, official, lest it become idolatry.”
We cite Reverend Kelley's statement only to emphasize the concern that Jews share with millions of Christians who also take their religion seriously. To them an official compulsory prayer is a contradiction in terms. Such a prayer may be an expression of religiosity, not of devotion. Archbishop O'Boyle has warned that “although, at first glance, piety seems to be everywhere" religion is being used as a "benign sedative.” Spiritual leaders of the Protestant and Catholic faiths, as well as the Jewish, refuse to accept the shadow for the substance, and question whether the new “official” piety and the gleaming new churches are the signs of an authentic religious revival. But is not this a judgment to be made by higher authority than the Congress?
The Anti-Defamation League believes that the moral of American history is plain: The first amendment works—under it, religion and sound government have flourished. The Supreme Court's interpretation of the amendment in the School Prayer case is in the best American tradition and serves religion and religious freedom. It should be left undisturbed to grow in strength and veneration.
STATEMENT ON PRAYER IN PUBLIC SCHOOLS, BY C. EMANUEL CARLSON, EXECUTIVE
DIRECTOR, BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS
I appreciate that the Senate Judiciary Committee has consented to include a statement which attempts to reflect the Baptist concern for voluntary prayer and, more specifically, to state our Baptist approach to the church-state issues which might be involved in the recent decision by the Supreme Court.
Six Baptist conventions in the United States cooperate to maintain a Washington observation post and communications center. These conventions number something over 20 million Baptists as members. The cooperating conventions are:
Southern Baptist Convention ;
North American Baptist General Conference. Each convention is represented in the Joint Committee on Public Affairs by a delegation of responsible leaders representing several agencies and programs within that convention. This joint committee endeavors to maintain a constant study and participation in the various church-state problems that arise.
For some time, the Baptist Joint Committee has been aware that religious "observances” in the public schools are a source of controversy in some American communities. Several reports and conversations have dealt with the problem. At the March 1962 meeting the joint committee voted to place this issue formally on the agenda for the meeting in October and made arrangements for the preparation of study materials and action drafts. In the meantime the decision by the Supreme Court was handed down.
When the Supreme Court's decision was first handed down, some of the mass media, and some public leaders, interpreted it as a restraint on the teachers' and the pupils freedom to pray. This interpretation normally brought forth a defense of the freedom to pray, premised on the provision that there shall be no restraint on the free exercise of religion. Closer study of the decision, however, made it clear that this decision does not restrain people from prayer,