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"We believe it necessary that public education give due recognition to the place of religion and the culture and convictions of our people but that in doing so the principle of separation of church and state must be safeguarded. The road is a difficult one but, certainly, we cannot agree that banishing the Bible and music and paintings of religious connotation will benefit the plaintiff's children in any material way. We are of the opinion that erasing the influence of the best literature, music, and art and gentler aspects of American life in general would be to create an antireligious attitude in the schools and substantially injure the well-being of the majority of the schoolchildren” (Chamberlin v. Dade County Board of Public Instruction, June 6, 1962).
In answer to another question bearing upon the issue, Mr. Justice Caldwell said the following about the embarrassment that might arise for children who do not participate:
“In the instant case we are told that the primary objects of solicitude are the children of the plaintiffs, atheists, Unitarians, and Jews, which children, although not required to be present at the time, will, so it is said, suffer some supposedly irreparable emotional stress if their classmates are permitted to hear the Bible read. It seems more likely that the children in question are the unwitting victims of a quasi-political contest.
“The plaintiffs assume, inferentially at least, that minorities enjoy a peculiar susceptibility to psychological and emotional trauma and compulsions and are entitled to some peculiar and fatherly protection against the strange ways of the ordinary American citizen. But such is not the case. The minority is entitled to enjoy the same privileges and the same justice as are enjoyed by people generally as an inherent right. The minority and the majority are both denied the privilege of disrupting the lives of others because of some hypersensitivity or fractious temperament" (Chamberlin v. Dade County Board of Public Instruction, June 6, 1962).
It is to be hoped that the six Supreme Court Justices who struck down the regents' prayer will somehow find no inconsistency in upholding as constitutional the recitation of the Lord's Prayer and the reading of the Bible in public schools. Such a reversal in position would be no more pronounced than that already executed by Mr. Justice Douglas. It is interesting to compare his majority opinion in Zorach against Clauson-Chamberlin against Dade County Board of Public Instruction, June 6, 1962–with his concurring opinion in Engel against Vitale.
Zorach against Clauson at pages 312,
“The first amendment, however, does not say that in every and all respects there shall be a separation of church and state. Rather it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the commonsense of the matter. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative Halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God' in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the first amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session : 'God save the United States and this honorable Court.'”
Engel against Vitale at pages 1-6 of the concurring opinion :
“The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the Federal and State levels is presently honeycombed with such financing [here he lists in a footnote some 19 'aids']. Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.
“What New York does on the opening of its public schools is what each House of Congress does at the opening of each day's business.
"In New York the teacher who leads in prayer is on the public payroll; and the time she takes seems minuscule as compared with the salaries appropriated by State legislatures and Congress for chaplains to conduct prayers in the legislative halls. Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time that our marshal spends announcing the opening of our sessions and offering a prayer for this Court. Yet for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution."
Conflicting positions of this type could have been avoided if contemporary Justices of the Supreme Court had but followed the historically sound definition of “establishment” as expounded by Judge Cooley—“Cooley, General Principles of Constitutional Law,” in the work cited, page 213:
“By establishment of religion is meant the setting up or recognition 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 cases where a proper recognition of divine providence in the working of government might seem to require it, and where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects.”
The public clamor against the regents' prayer decision indicates how strongly the American people value the place of religion in our national life. Action must now be taken to preserve this heritage.
At an annual conference held in Hershey, Pa., early in July of this year the Governors of 49 States—with only Gov. Nelson Rockefeller of New York abstaining-resolved that
“The conference urge the Congress of the United States to propose an amendment to the Constitution of the United States that will make clear and beyond challenge the acknowledgement of our Nation and people of their faith in God and permit the free and voluntary participation in prayer in our public schools."
The firm action of our State Governors underlines the impact of the Court's recent decision upon the American people.
Several Members of Congress have introduced constitutional amendments which, if approved, would nullify Engel against Vitale. The Senate Committee on the Judiciary has conducted hearings on these amendments.
In his testimony before the committee, the Right Reverend James A. Pike suggested that the establishment clause of the first amendment be amended so that the words “the establishment of religion” would be restated as “the recognition as an established church of any denomination, sect, or organized religious association.” Bishop Pike noted in his testimony that under this amendment “the secularization and deconsecration of the Nation which-recent Supreme Court decisions have begun would be blocked. Our middle way would be preserved.” Such a proposal seems to me to be the type of amendment which Congress should recommend to the States for ratification, if the Court will not reverse its present position.
Mr. President, the great New England statesman, Daniel Webster, was the Isaiah of his day and generation when he said :
"If we and our posterity * * * shall live always in the fear of God, and shall respect His commandments; if we and they shall maintain just moral sentiments, and such conscientious convictions of duty as shall control the heart and life, we may have the highest hopes of the future fortunes of our country; and if we maintain those institutions of government and that political union exceeding all praise as much as it exceeds all former examples of political associations, we may be sure of one thing—that while our country furnishes materials for a thousand masters of the historic art, it will be no topic for a Gibbon, it will have no decline and fall. It will go on prospering and to prosper. But if we and our posterity reject religious instruction and authority, violate the rules of eternal justice, trifle with the injunctions of morality, and recklessly destroy the political constitution which holds us together, no man can tell how sudden a catastrophe may overwhelm us that shall bury all our glory in profound obscurity” (“Chaplains of the General Government,” Johnson, L. D., (1856), p. 55).
Mr. ERVIN. Mr. President, will the Senator from Virginia yield ?
Mr. ERVIN. I should like to commend the able Senator from Virginia for his scholarly and thorough presentation on this important question.
As I stated a few minutes ago, during the time the Senator from Virginia and I have been privileged to serve together in the Senate of the United States, the Senator from Virginia has made some of the finest contributions to the Preservation and presentation of the history of our country and to the preservation
and presentation of the fundamental constitutional principles upon which our country rests. Today he has continued in masterful fashion the task he has performed equally as well on a number of other occasions.
I wish all the people of this Nation who believe in constitutional government and who believe, as George Washington did, that it is just as necessary to preserve it as it was to initiate it in the first place, could have the benefit of the study the Senator from Virginia has given during his service in the Senate to these various fundamental questions.
Mr. ROBERTSON. Mr. President, that tribute is doubly appreciated, because it comes not only from one of the ablest Members of this body, but also from a man who has served as a member of the highest court of his own State. He is widely recognized as the best constitutional lawyer in the Senate. Mr. TALMADGE. Mr. President, will the Senator from Virginia yield?
The PRESIDING OFFICER (Mr. Metcalf in the chair). Does the Senator from Virginia yield to the Senator from Georgia ?
Mr. ROBERTSON. I yield.
Mr. TALMADGE. The distinguished Senator from Virginia has had an illustrious and honorable career in many fields of endeavor. He has served his country in uniform, in time of war. He has served his great State of Virginia, the mother State of our country, in the legislative branch, in the judicial branch, and also in the executive branch of the Government. He has served honorably and long in the Congress of the United States, both in the House of Representatives and in the Senate. But I do not believe the distinguished Senator from Virginia has ever rendered during his long career, a more outstanding service than the one he has rendered today on the floor of the Senate. I have never heard a more scholarly, logical, irrefutable, eloquent legal argument in all my life. He has gone into the history and the origin of the first amendment to the Constitution of the United States. He has quoted from those who framed that amendment. He has quoted from the debates in the House of Representatives and in the Senate of the United States as to its meaning. He has traced the decisions of the U.S. Supreme Court in construing that document. He has quoted from Mr. Justice Story and from Judge Cooley, the writers of the greatest commentaries, in all the history of our country, on the meaning and the significance of that document.
He has laid threadbare the argument that government cannot participate in religion. He has clearly demonstrated that government cannot exist without religion.
Mr. President, I compliment the distinguished Senator from Virginia on the outstanding and eloquent job he has done today.
Mr. ROBERTSON. I thank the Senator. During my 30 years of service in the Congress I have discussed many issues, but none of such transcendent importance to the future of our Nation as the one I have attempted to discuss today. I only wish that, like Isaiah of old, my lips, in presenting this speech, could have been touched by a burning coal from the altar.
October 11, 1962.
DEAR MR. LIPSCOMB: On Sunday, October 7, I appeared on the Reader's Digest program, “All America Wants To Know," with the Right Reverend James A. Pike in a debate on the Supreme Court's school prayer decision with Senator Jacob Javits and William J. Butler.
Senator Russell had the text of this debate inserted in the Congressional Record of Wednesday, October 10, beginning on page 21705 and I am writing to request for myself and Senator Robertson that it also be printed as part of the transcript of the current hearings on proposed constitutional amendments dealing with that decision.
Thank you for this courtesy.
HERMAN E. TALMADGE. 92395—6314
[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