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but I want to remind the distinguished members of this committee that so far as I know it has been the law of Maryland ever since it has been a State that there can be no legal marriage in that State except by a minister of a recognized church. All right, now, suppose that this atheist woman decides she wants to marry again and does not want to be embarrassed by a minister of the church who believes in God-she wants a civil ceremony. Will the Supreme Court strike down the law, and say to her, "We will not embarrass you”? And will the Court go on and say all marriages by clergymen are invalid?
Senator HART. I cannot respond to the marriage question, but to clarify our thinking and to assist the record, what if the prayer that was cited in the Maryland school had been the “Hail Mary”— would not some nonatheist object to that? What would the law be on it?
Senator ROBERTSON. Well, I am not familiar with the “Hail Mary” or what is in it. However, I think that if it is voluntary, there might be no more objection to the “Hail Mary” than to the Lord's Prayer. And in addition to that, my distinguished colleagues, I do not know whether you have ever hunted or trained bird dogs or not, but I have done a lot of it for 60 years, and it is just as important to train that dog what not to do as it is to train him what to do.
You can teach a child by forbidding something, just as much you can teach him by telling him what he should learn.
In the Florida case I mentioned in my statement, the petitioners objected to singing “Holy Night” in the schools at Christmas. They say that you cannot sing “Holy Night”—they say they do not believe there is such a thing as a holy night—that is a Christian song that they want outlawed.
Senator HRUSKA. If I may interrupt. Apropos of Senator Hart's statement, I want to say that there is no man whom I have greater respect for in the Senate than the witness. I am prepared to assist him with the conference report on that little appropriation bill of only $6 billion in a few minutes. But suppose we reconsider the question of the Senator from Michigan and instead of putting it in terms of a voluntary recital of a "Hail Mary” in a grade school, we put it in terms of the case of Engel v. Vitale, where the respondent board of education—and I am quoting now, 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 schoolday. Instead of a nondenominational prayer of just 22 words, if it had been a "Hail Mary” that was to be given, what would be your judgment in that case, Senator Robertson ?
Senator ROBERTSON. In my judgment, if it is voluntary, it is legal. Senator HRUSKA. But, you see
Senator ROBERTSON. The prayer is voluntary. It is not used in the New York City schools. Local school boards do not have to use it. And any student that wants to be excused is excused. What are we dealing with? The first amendment. What does the first amendment prohibit? The establishment of religion or interference with the free practice thereof. Free practice of religion was not interfered with because the prayer was voluntary. What is establishment of religion? It is the church. So the Supreme Court has written something into the law that is not there, just as it did in Brown v. Board
of Education, where they said that the 14th amendment prohibited segregated schools. This was never in the law. The Supreme Court wrote it in there. And the Court is trying to write this in there, too. And they are going further, mark my word. A great lawyer from California, an Episcopal bishop, has said that the essence of this decision is to deconsecrate this Nation, to secularize it—that is the essence of it, but I want to get back to the amendment.
Senator HRUSKA. Will you yield further?
Senator HRUSKA. The remarks which the Senator has made speak of the voluntary use of a “Hail Mary” in schools, but the Supreme Court was deciding a question in which a prayer was directed. It was not voluntary but ordered by regulations. The teacher had to say that prayer at the beginning of each schoolday. It is to that situation I would like to direct your attention.
Senator ROBERTSON. The first thing I say is that anybody who wanted to, could be excused. The atheist woman in the Maryland Case stressed not only the fact that the teacher was a State employeethat the reading came from a Bible which she repudiated-she also stressed the fact that to be excused embarrassed her child. And the Maryland Court of Appeals said:
You have not any legal right to complain of this embarrassment, because in this case the majority is doing what the majority has the right to do.
She went to the Supreme Court, and what did the Court do? It granted her certiorari. And I know that the fine lawyers on this committee realize that when the Court grants certiorari to review a decision, they think enough doubt is in it to justify another hearing. They would not grant it otherwise. They granted certiorari. They granted it in the Pennsylvania case; they will probably grant it in the Florida case. And that case involves not only prayers in the schools, but as I say, religious paintings, Christmas hymns, the whole thing.
What did Thomas Jefferson say about construing the Constitution? He said that our Government is a government of delegated powers. Consequently, when the rights of the States, which are fully reserved under the 10th amendment, or the rights of the people are involved, the Constitution should be strictly enforced and construed. He adds this very pertinent point-and I tell you this Court has deliberately ignored this fundamental principle of construction—he said that on every question of construction the Constitution should be interpreted according to its meaning to those who adopted it, instead of trying to determine what meaning may be squeezed out of the text or invented against it, to conform it to what the Court wants it to mean.
What was the complaint in Virginia about the church? It was that the Church of England had been established as a state church and everybody was taxed to support it. My ancestors were Church of England men, but they sided with Jefferson. They pulled out and joined the Baptist Church and were put in prison for doing it. We wanted to establish a difference between religion in government, and government in religion. So we supported a provision for religious liberty which said that Congress shall enact no law relating to the establishment of religion. That is what it meant, a particular church. That is what they aimed to prevent.
Gentlemen, did you know that in the First Congress the man who drafted the first amendment was a member of the committee which selected Chaplains for the House and the Senate ? James Madison was the man. He recommended that. He also supported the bill for chaplains in the armed services. As President he approved the appropriation bills to pay them.
Do you know that the Senate received in 1854 a petition to do away with chaplains? Do you know that the matter was fully argued and presented and that chaplains were declared to be fully within the provisions of the first amendment?
Do you know that in 1875 a great Member of the House, James G. Biaine, afterward Senator and Republican nominee for President in 1884, against Grover Cleveland, offered, when he was in the House, an amendment to the Constitution to extend the first amendment to the States? The first amendment was never intended to apply to the States. Our Founding Fathers did not want to extend it to the States. And the Blaine amendment shows that Congress did not intend the 14th amendment to make the 1st amendment applicable to the States, and did not think this was the result of the 14th amendment. The House approved the Blaine proposal, and the Senate adopted first an amendment that this should not affect the reading of the Bible in the public schools. That was the attitude then, but the Blaine amendment never got a two-thirds majority in the Senate, so it failed.
You have on your desks a copy of my prepared statement, in which I also go through the matter of the Northwest Ordinance.
I will read you a provision of the constitution of Ohio—a part of the Northwest Territoryreligion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools, and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience.
And now Justice Douglas says that this decision should be constrned broadly. And that is what Senator Stennis, my friend on the right, Senator Beall, of Maryland, and a number of others are trying to safeguard against, going to the extent that Justice Douglas said this decision should be carried. He mentioned, I believe, 19 possible extensions, and he said there could be a great many more.
As to the 14th amendment, the Supreme Court said, in the Bartkus V. Illinois case:
We have held from the beginning and uniformly that due process clause of the 14th amendment does not apply to the States any of the provisions of the first eight amendments as such.
That is the decision in the Bartkus case. In the prayer case though they claim that the 1st amendment is made to apply to the States by the 14th amendment-think of it-made to apply by the 14th amendment. And that a 22-word prayer is an establishment of religion. They jump from one inconsistency, without foundation, to another. And there is that extreme interpretation of Justice Douglas, in particular, which I say makes the decision bad law and a dangerous precedent.
There is no doubt about the broad implications of this case. That is why I proposed a resolution. But I have reached the conclusion that passage by Congress of a resolution is not sufficient in itself. We ought to have the best advice we can get and the best brains of this great committee to frame an amendment to the Constitution which, as the distinguished Senator from New York said, will fully safeguard the fundamental principles of the separation of church and state and yet permit us to continue in public, as we have in the past, to recognize and proclaim publicly that we are a religious people.
I thank you.
Senator JOHNSON. Mr. Robertson, we are certainly glad to have you with us this morning.
Our next witness is Senator Vance Hartke, of Indiana, who has a brief statement. You do have a brief statement ?
Senator HARTKE. Very brief.
Senator JOHNSTON. Good. We have to close at 12 o'clock. STATEMENT OF HON. VANCE HARTKE, U.S. SENATOR FROM THE
STATE OF INDIANA Senator HARTKE. Mr. Chairman and distinguished members of the Senate Judiciary Committee, on Monday, June 25, 1962, the Supreme Court of the United States, in a 6-to-1 decision, ruled that a State official prayer cannot be offered in our public school systems.
By this decision, a majority of Justices of the Supreme Court, said that the first amendment's ban on the establishment of a religion means at least thatit is no part of the business of government to compose official prayers for any group of American people to recite as a part of a religious program carried on by government.
Because of this action taken by the Supreme Court, I think it necessary that the Senate, by resolution which I have introduced as Senate Resolution 356, give its sense that this is not to be construed as a prohibition against individual prayerful meditation if a governmental body so chooses to devote time for such a practice.
Permitting prayerful meditation by a governmental body, such as a school group, does not mean that the individuals participating have to pray if they choose not to do so; but for those who want to offer prayers of thanksgiving to their God, the opportunity is available under the resolution which I have introduced.
I have introduced this resolution, since I feel it is necessary that the U.S. Senate, the world's greatest deliberative body, go on record as not opposing prayer by individuals. The resolution is deemed necessary in view of the broad language used by the Supreme Court in the decision which has been handed down.
The Supreme Court's decision has a broad impact in many of the Nation's schools, including those in my State of Indiana.
As Justice Black wrote in his opinion: Under that [the 1st] amendment's prohibition against governmental establishment of religion, as reinforced by the provision of the 14th amendment, 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.
As I interpret Justice Black's opinion, and as I interpret the Constitution and its amendment, I see, nowhere, that prayerful meditation cannot be given by individuals as they choose. The first amendment of the Constitution guarantees freedom of worship, which is exactly what I am calling for in this resolution—a reiteration by the U.S. Senate that this body reaffirms its belief in the first amendment that individuals may pray as they choose.
Therefore, Mr. Chairman and members of the committee, I respectfully request special consideration be given Senate Resolution 356 and the reporting of this resolution to the Senate for favorable action.
There follows the exact wording of Senate Resolution 356:
(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 schoolday for prayerful meditation if no public official prescribes or recites the prayer which is offered ; and
(6) 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. Thank you, Senator Hartke.
I want to say that your statement here was brief and to the point and I wish, due to our limited time, that those who follow you will do as you have done, be brief.
Are there any questions?
Senator HART. No questions, Mr. Chairman, but I would like to express an opinion. It is this. I thought that Senator Hartke's approach was good. He said that silent prayer is all right, and I think that the Supreme Court without any change in the Constitution would hold that silent meditation periods are constitutional.
I think that it is the business of compulsion in the setting of a classroom as it affects the young child, that offends.
And I have always felt that it is this matter of compulsion that is the basis for the distinction. There is a real difference between a 10year-old in a classroom listening to a teacher recite a prayer, and a 30- or 40- or 50- or 60-year-old Senator who may or may not do his best on the Senate floor at noon.
Senator HARTKE. I want to thank this committee for giving me the time to express my opinion.
Senator JOHNSTON. We will next hear from Senator J. Glenn Beall, of Maryland. We are glad to have you here, Senator Beall. STATEMENT OF HON. J. GLENN BEALL, U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator BEALL. Thank you, Mr. Chairman. I have a prepared statement.
Mr. Chairman and members of the committee, on June 27 I had the privilege of introducing Senate Joint Resolution 205, a proposed constitutional amendment to allow voluntary nonsectarian prayer in public schools.
I appreciate the opportunity provided by this committee for me to testify on this legislation today.
As you know, Mr. Chairman, 14 other Members of the Senate joined me as cosponsors of Senate Joint Resolution 205.