Senator STENNIS. Yes. Senator HART. Is this an unreasonable expression of a minority to be concerned about the youth in public schools? Senator STENNIS. Well, I feel that the key to your question, Senator, is the choice that has always existed. We have done mighty well under this system. I do not know precisely how, but I do know that everyone has gotten along might well. When people wanted the Bible read, it has been read. Those who had other desires did not attend. Arrangements have been made for participation by Mr. X's children in one place, and for Mr. Y's children in another. Over the years it has worked out splendidly. That is a part of the American system, and when we just ban it, throw it all out and uproot it, it seems to me that we throw overboard a great deal that is basic for the spiritual training and tradition that we want to encourage in the home and, of course, in the church. I would not make it compulsory on anyone, of course. Senator HART. We encourage it in the home and in the church, and then we send them to school and they run into a 180° switch. This is a basic problem. It is one that I think that we can fruitfully examine. Senator STENNIS. Well, I agree with you. You run into various angles of the problem, but I do not think that the remedy is to throw everything overboard. We have gone along so well in these 175 years. This proves that it can be done. Senator HART. Indeed. And I must add that I, too, have concern as to how we can instruct that certain rights are derived not from man or government but from God. Senator STENNIS. Yes. Senator HART. That belief we declare in our basic documents. Senator HART. But is that instruction a religious exercise? And if so, where does it leave us in the light of this decision? There is a real dilemma. I wanted to make this very specific point very early in these hearings so that others could address themselves to it as well. Senator STENNIS. I think the term "religion," as I have understood it, does not encompass, really, the prayer that is in question which certainly is nondenominational. I do not think it could be classified as religion in its narrow sense, but it does invoke the Deity, and is religious to that degree. Thank you very much. Senator KEATING. Could I inquire of Senator Stennis? I might say that it is my understanding, Senator Hart, and as you know I am a non-Catholic-it is my understanding that the form of this prayer was approved by the clergy of all of the three major faiths in New York, and that there is nothing which is in conflict with the religious teachings of any one of the three faiths. Senator HART. If I may, I was interested in that. This prayer does not happen to offend any one of the three denominations. What right have we under the Constitution because of this fact that it happens not to offend you or me, does not the possibility exist that by the switch of an election it might change the man or men writing the prayer may be succeeded by others and there be handed down something that might be objectionable to me-how would that stack up with the rest of those in the classroom? This is the problem. Senator STENNIS. If I may, I think that history answers and says that as a whole it has worked and worked well-it has been to the benefit of all. Senator KEATING. May I ask you this, Senator Stennis, because we all recognize you as a distinguished lawyer and jurist as well as churchman. Senator STENNIS. Senator Robertson is my lawyer. Senator KEATING. We have, as I see it, two problems here in this committee: First, should we do anything at this point, and second, if we decide that we should do something, what should we do? I want to address myself to the first point. It is my opinion as a lawyer that the decision of the Supreme Court is a narrow one and that the actual decision was to strike down the prayer on the ground that it had its genesis in the State, and that even though the formulation of the prayer was by various religious groups, the promulgation by the State was the inherent vice in the case, and that the Court did not in this decision accept the principles enunciated by Justice Douglas which, I agree with you, goes much further and would strike out everything relating to religion in our whole actual life. It has been contended by many well-meaning people whose religious principles are just as high as yours and mine that we should await the next case which goes to the Court. I believe this Florida case is close to reaching the Court. I think in the Florida case they had, if I am not mistaken, the recitation of the Lord's Prayer, but it is the thinking of many that we should go slow in moving for a constitutional amendment and should wait until one or possibily two other cases have come before the Court dealing with this same problem. There seems to be almost a universal feeling, I would say, even among those who say to wait, that if it is the law of this country, that is, Justice Douglas' opinion is the law, then certainly it requires a constitutional amendment of some means. We are not going to discharge our Chaplains in the House and in the Senate without some further serious thought. What do you think about that argument that we should go slow? What is your feeling on that? Senator STENNIS. Well, I think this, that largely my position has been reflected by this short statement. I think it is inescapable that this case from Florida will be reversed. It is necessary to do that in order to make it conform to the original case they have just decided. I would not anticipate that they would reverse themselves in that case and therefore, believe that some action is going to be necessary. I have heard the argument, "Let us wait and see." That is made in good faith. But unless there is some kind of a counterforce and I think it must come from the people-I want it to be sane and simple and reasoned out and not rushed, not pitting one group against another there must be some counterexpression, however, otherwise the trend will continue. I think it is like a patient who is already bleeding and if the doctors wait to see what an hour will bring, why the patient is that much weaker. Senator KEATING. We are very grateful to you. Senator SCOTT. Before you get away Senator STENNIS. I am not in a hurry. 92395-63-3 Senator SCOTT (continuing). May I address this to you. It is on something else that I would like to know about that deals with this subject. If this Congress should act, it would come at a time when almost all State legislatures are in session; namely, in an odd-numbered year, 1963. If, however, we pass 1963, that situation will only be true of three States which will be holding regular sessions of their legislatures in 1964, and again with the exception of certain States that meet annually, but not many of them. I am not sure, but I think Virginia, New Jersey, maybe Alabama; just a few meet. Senator STENNIS. Yes, sir. Senator SCOTT. I would appreciate your reasoning on that. Senator STENNIS. I would think that is a matter that should be considered. It should be weighed, but I do not think it is really controlling. There must be the beginning of some sound expression. I thank you. I am concluding in deference to the Senator from Virginia who has two conferences to attend. Senator HART. This is not in the broader field of general policythis relates to the wording in Senate Joint Resolution 206 which you introduced for yourself and several other distinguished Members of the Senate. You propose that we amend the Constitution to provide that it shall not be construed to prohibit nondenominational religious observances through prayers, et cetera. Senator STENNIS. Yes. Senator HART. Who would determine whether a practice was nondenominational? Senator STENNIS. That would be a practical and a legal questiona practical question for the drafters to decide first and a legal question for the courts. What I was really striking at there was trying to cover the activity that has been banned. Senator HART. My purpose is to raise the question as to the wisdom of making it by the Supreme Court. Senator STENNIS. They are pretty good at passing on everything else. Senator JOHNSTON. Just one question, Senator Stennis. When the Supreme Court is deciding a case, they decide it upon the question before the Court; is that not true? Senator STENNIS. Correct. Senator JOHNSTON. The question before the Court in this particular case, the Engel case, was whether or not the Board of Regents of New York State could tell the schools what prayer they could pray when they were going to pray in the schools; is that not true? Senator STENNIS. That is generally true, yes. Senator JOHNSTON. That was the question before the Court, whether or not the board of regents could do that; is that not true? Senator STENNIS. The board of regents composed an optional prayer. It was optional with the local boards, as I understand it. Senator HRUSKA. Will you yield? Senator JOHNSTON. Yes. Senator HRUSKA. As the first words of the opinion reflect, however, the local school board in this instance directed the principal of the school to see that the prayer was said aloud by each class each morning. Senator STENNIS. That is what I have understood the facts to be. Senator HRUSKA. I think it is important for our purposes to note the language in Justice Black's opening paragraph: The respondent Board of Education of Union Free School District No. 9, New Hyde Park, N.Y., 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. Senator STENNIS. I understood that the local board directed it. Senator HRUSKA. Exactly. Senator STENNIS. The local board directed the prayer to be held. Senator HRUSKA. Right. Senator STENNIS. The State board composed and approved the prayer. Senator HRUSKA. Which they recommended. Senator STENNIS. Yes, and sent it on down, and then the local board decided whether or not the teacher would use it. Senator HRUSKA. So the question before the Court related to the direction of a specific prayer by the local board of education of a particular school that was the question. Senator STENNIS. Yes, I think that is what it comes to. Senator HRUSKA. That board gave the direction. Senator STENNIS. It makes no difference whether it is the State board that requires it, or the local board, or as I said earlier whether the teacher requires it. In any case it will be under the same ban. That is so, I think, because the teacher represents the State. Senator JOHNSTON. Just one further question. That was the only question before it-being the only question before the Supreme Court, and nothing else but the Supreme Court did go all over the world on it and that is what brought about this confusion, did it not? Senator STENNIS. I think a great deal of it lies there. I think the actual holding is as you have said. Thank you. Senator JOHNSTON. Thank you. The next witness is Senator A. Willis Robertson, of Virginia. STATEMENT OF HON. A. WILLIS ROBERTSON, U.S. SENATOR FROM THE STATE OF VIRGINIA Senator ROBERTSON. Mr. Chairman and members of the committee, I welcome the privilege of appearing before this great committee on one of the most vital issues that has been presented to our Nation since Thomas Jefferson sponsored his bill for religious freedom in Virginia. You will recall, of course, that Mr. Jefferson was a great President and accomplished many things, but he only asked that he be remembered for three, and one of them was that he was the author of the bill for religious liberty in Virginia. I propose to explain to you what that bill meant. I propose to explain to you what the first amendment, based upon the proposals of James Madison, meant and to indicate to you that this decision was a bad decision. Now, Mr. Chairman, the time is growing late, you have a lot of witnesses, and I have an engagement to present two conference reports on an appropriation bill to the Senate. One of them appropriates about $6 billion, and in these days that is not considered much, but the other one appropriates $18 billion and that is still a considerable amount of money. With the consent of this committee I ask that my prepared statement appear in the record, and that I be permitted to hit what I think are a few of the highlights of what is involved here. Senator JOHNSTON. This is the statement that you have in mind? Senator ROBERTSON. That is the one. Senator JOHNSTON. It shall become a part of the record, hearing no opposition. (The prepared statement of Hon. A. Willis Robertson follows:) [For release July 26, 1962] STATEMENT OF SENATOR A. WILLIS ROBERTSON, DEMOCRAT, OF VIRGINIA THE NEW YORK PRAYER CASE Mr. Chairman, few Supreme Court decisions have raised more controversy than Engel v. Vitale, the so-called New York Prayer case. On June 25 of this year, the Supreme Court, by a 6-to-1 majority, held unconstitutional the daily recitation in New York public schools of a short prayer composed by the State board of regents and adopted by a local school board. As my following remarks indicate, I believe that the decision misconstrues the 1st and 14th amendments to the Constitution. Some sincere clerics have been misled by the mistaken claim that the New York Prayer case involved the separation of church and state. What the decision really does, as recently pointed out by Bishop Pike of California—an able lawyer as well as a distinguished cleric-is to deconsecrate our National Government. Accordingly, Engel v. Vitale has broad implications for every American citizen. Unless the decision is nullified, it could help to undermine the religious traditions which we inherited from our ancestors, and which we should pass on to posterity. ANALYSIS OF THE DECISION This is the text of the prayer involved in the Supreme Court's controversial decision: "Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our country.” No local school board was required by the New York State Board of Regents to prescribe this or any other prayer for recitation in its classrooms. But each local school board could, if it wished, prescribe the prayer for its own students. Recitation by the students was voluntary. Any child could remain silent. Or, with the written consent of his parent or guardian, a student could be excused from class during the prayer. Nevertheless, parents of 10 pupils (not in New York City where the prayer is not used) challenged the constitutionality of the State law authorizing the use of the prayer in the public schools of the State of New York and the local board's regulation requiring its recitation. Their challenge was based on the ground that, "these actions of official governmental agencies violate that part of the 1st 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 14th amendment of the said Constitution'" (Engel v. Vitale, U.S. Supreme Court, October term, 1961, p. 2). The Court accepted this contention. It did so despite the fact that the prayer was nondenominational, that it did not establish a church, and that its recitation was voluntary. A DEPARTURE FROM TRADITION The first amendment to the Constitution states in part that: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ***" In order to interpret the Constitution properly, one must determine what the members of the Constitutional Convention and of the ratifying conventions had in mind when they discussed and adopted our Constitution. |