STATEMENT OF RT. REV. JAMES A. PIKE, EPISCOPAL BISHOP OF THE DIOCESE OF CALIFORNIA

Bishop PIKE. Thank you, Mr. Chairman. I am honored, indeed, to have been invited to share in this important deliberation.

I am honored, also, with the presence of the other Senators here. As I have done my homework on this subject, I knew, in connection with this occasion, that I could not help but feel we are in the same kind of historic moment as our forefathers were as they very carefully debated these matters and polished the wording and thought they had made it very clear, though they had not counted, I gather, on the Supreme Court in the meanwhile, and, hence, our opportunity now to go further with their work to achieve their intentions. Their intentions, I think, are historic and very inspiring.

The American approach to relationship of religion to the Nation has steered clear of church-state union on the one hand and secularization of public life on the other.

We have, unlike countries which have chosen these other ways, steered a middle course reflected in virtually all aspects of our public life, including our schools: a recognition of dependence upon Almighty God and of the fact that He is the highest reality and not the

state.

The constitutional protection for this approach is the 1st amendment, taken in connection with the limitations of the 10th amendment.

I might remind the distinguished Senators that this, in short, is our States rights amendment. It makes clear those things not specifically given to the Federal Government by authority, are reserved to the States and the people.

When we take the very limited terms of the 1st amendment, there are two parts the establishment clause and the free exercise clause; and if we add that to the 10th amendment, this would seem to provide a sufficient safeguard for what I have been calling in this dispute "the middle way."

I believe earnestly that the Supreme Court has distorted the meaning of the first amendment. What our Founding Fathers were trying to avoid by the establishment of religion clause was the setting up of a given denomination as the established church of the country.

I might pause for a moment to verify that. I might say that the best single collection of materials and quotations and as many of you know is in the three-volume work by the Reverend Phelps Stokes, former secretary of the Yale University and canon of Washington Cathedral, on church and state in the United States.

When you are taking a plane trip, it is very convenient to bring the book that has the most in it. I have sort of filed this book by title, but it covers the whole matter very thoroughly. This book covers the debates on the first amendment, and its wording which are reported in the annals of Congress of that period and in committee minutes; and all this is quite revealing.

Much has been made of Mr. Madison in this regard by those who would seek to support the Court's view, and yet Mr. Madison seems almost clearest of all as to what was really meant. For example, he pressed very hard to insert the word "national" before "religion"— that is, barring the establishment of a national religion.

The reason that failed is very interesting. It was not because of this point at all, but because many of our Founding Fathers were not yet sure we wanted to use the word "national." They wanted to stress the word "Federal" rather than the idea that we were a nation. This is reflected in the use, in the early days, of the phrase "these United States"-where today we tend to say "the United States."

Nevertheless, the fact that he wanted the word "national" makes even more clear he was talking about an established church in the normal sense as understood by everybody at the time.

The fact is that the establishment of my church in England was not unknown to our Founding Fathers, and this is the sort of thing they were talking about.

This, then, is the minute on Mr. Madison's words:

Mr. Madison thought that if the word was inserted before religion, it would satisfy the minds. He feared that the people feared one sect would obtain preeminence and establish a religion to which they felt others were to conform. He felt if the word "national" was inserted, it would direct it toward the object it was intended to prevent.

It is interesting that the first draft in the Senate submitted to our distinguished predecessors would have supported the Supreme Court decision because it barred the setting up of a "mode of worship." And this was roundly defeated, because they were not talking about things in general; they were talking about a regularly established church, which meaning everyone understood.

Mr. Madison also did not hesitate to proclaim fast days and Thanksgiving Day and refer to God, providence, and the like, quite fully.

Mr. Madison was also a member of the regents, or overseers, of the University of Virginia and sat in on the meetings which voted there should be a room for prayer and worship on the campus, a proposal of Mr. Jefferson, and supported by Mr. Madison, all of which would seem to indicate that he was not thinking in the terms now attributed to him.

Likewise, his life, written by Mr. Brant, makes the point that he wanted legal equality among sects, and he uses freely the word "sect," or "church," in that instance.

Now I would quote, in this connection finally, that distinguished constitutional historian, Judge Story, who made clear that the pur

pose was

to exclude all rivalry among Christian sects and prevent any national ecclesiastical establishment which would give, to any hierarchy, the exclusive patronage of the National Government.

Now there was another purpose of the establishment clause which hangs on the word "respecting." It did not say Congress shall not establish a religion. It said it shall not pass any law respecting the establishment of a religion. The reason for this is that a number of States had established churches and it was known it would take some time to iron these matters out-this delicate matter of the relationship of the church and the state.

The secondary purpose was to keep the Federal Government out of this question of what the States were going to do about religion. It had a negative purpose as well as a positive one. Indeed, it established churches in some States as late as the 1840's, Massachusetts being the last to disestablish.

In a somewhat peculiar sense my own church is still established in the State of New York, there being a section in the consolidated laws labeled "The Government of the Protestant Episcopal Church." There, unlike the situation in dioceses elsewhere where we run our own local canon law, the five dioceses in New York are governed by the legislature-subject to them if they want to change anything substantial in their canon law.

There are still hangovers of this kind of thing-not necessarily desirable. But one purpose of the first amendment was to let the States work these things out as they went along.

Now it is true the Court has said the 14th amendment applies the 1st amendment to the States. So I think for this discussion we can assume that will not be reversed and when we read, "Congress shall not", we mean, "The States shall not." But we should not extend in relation to the States beyond what it meant originally as to the Federal Legislature; namely, the forbidding of the establishment of a church. Senator HART. You say we ought not extend so far as it relates to the States, the concept and limitation intended originally.

Do you assume that circumstances are identical now and that, therefore, it should not be changed or do you argue that once written, it never changes?

Bishop PIKE. I think once written, except by amendment it does not change in its essential purpose.

Obviously, new situations arise and, therefore, delicate decisions have to be made by the courts as to the application. My point really is that I don't think we ought to say as to the States that it means "religion" in some broad, general sense of ideology or philosophy or theology when as to the Federal Government, when it was adopted, it meant an organized visible church.

Now the two words, "establishment" and "religion" are in there. In the released time case; that is, McCollum v. Champaign School District, the Court stretched the word "establishment" to include a barrier against cooperation, on a voluntary basis open to any applying church, in the rounding out of our children's education.

Now in the recent school prayer case, the Court has stretched the word "religion" way beyond its original reference to a specific church or churches. I might say in passing that the principle of separation of church and state was not even relevant in the school prayer case because no church was involved in the New York arrangement.

In fact, the Court complains that the State wrote the prayer and in thus complaining they cut the ground under from calling it anything about church and state because it was all state; the church was not involved, not any church.

I might interpose there to say that the involvement of the State or its agencies or its officers or its paid employees or whatever composing this, does give a strong support to Mr. Justice Douglas' concurring opinion in that he sees all of its as wrong; whereas Mr. Justice Black by a footnote tried to distinguish the prayers in this honorable house,

for example, saying when you people pray you are not really praying; that it is just a patriotic, ceremonial gesture. I really thought better of you all.

I thought from what I read in the Congressional Record that these prayers are very noble and good. Sometimes we borrow from them here and there; and I thought always up to now that they were real prayer and perhaps this honorable body needs real prayer. Senator DIRKSEN. It sure does.

Senator HART. Bishop, is it not possible that Justice Black did regard what you read in the Congressional Record at the opening of each Senate session to be prayer, in fact, but the congregation here comes or goes as it wants, listens or does not listen as it elects, feels no onus nor discomfort at its absence, but not so the schoolchild.

Is this not a possible distinction that we could draw?

Bishop PIKE. Were it not for the fact, sir, the New York provisions provide for that same type of absence, without onus.

Senator HART. Oh, you can provide in the law that there will be no onus attached if the boy wants to step out while you read somebody else's version of the Bible.

You cannot legislate away that kind of discomfort for the child in the classroom. But I know that if I am not at noon today to participate in the prayer there will be no discomfort.

Bishop PIKE. Right. In the mentality of the kids, I have four children, and sometimes the ability to be a noncomformist is a great delight. I know some kinds of young people who would just love to have permission to walk out at that point.

However, I do not think it is the Court's business to enter that kind of matter when, in fact, the points on which it rests its weighing of it are not supportable.

For example, if our Founding Fathers meant establishing a church, whether the Court likes or does not like the psychological effects, this is something for the States to be concerned about and not the Court.

Also, as I will point out later in my statement, the Court in dealing with this discomfort problem took a different view as to the flag salute. In the Jehovah's Witness Flag Salute case there was no exemption made for religious scruples. They declared that a Jehovah's Witness need not salute the flag, but they did not throw out the flag salute.

Now that student might be in a state of discomfort perhaps. Again, one has to weigh his mentality. But here, because of the dissenters, they threw the whole New York prayer out. This is quite a different approach.

The fact, is that in Mr. Justice Douglas' opinion, there is to it a consistency. He sees that "God save these United States and this honorable Court," is really a prayer; and he says in effect: so much the worse for it. He sees that the prayers in Congress are this and they, too, are dubious. But Mr. Justice Black groups your prayers and that of the Supreme Court as patriotic ceremonial goings-on; actually I think in logic, Mr. Justice Douglas is right.

The Nation pays the chaplains who compose the prayers. The Nation pays the bailiff or whatever Court officer prays, in the Supreme Court of the United States. The Nation pays the chaplains in the Armed Forces. The Nation pays the President; and, e.g., in commenting on the decision, the President urges all to pray more at home and to go to church more often. He did that on paid, public time, engag

ing in a comely homily sermonette-which I think was fine. But the Court's point is that this was done by the State, not by a church. To me that does not hold any water, because actually, they would be in somewhat of a controversial position; if a church had done it then we would have a state-church problem, and since the State did it then they feel they have another problem-and our whole tradition has supported the state doing this sort of thing in "the middle way” form and not in a sectarian form.

Now to remedy what the Court has done, it has been proposed that the first amendment be amended to create exceptions for public prayer, Bible reading, and so forth. The purpose of such amendments I thoroughly agree with, but the difficulty in such an approach is twofold. First, I am not sure that a constitution is the place to spell out the manifold usages and customs which have developed in our practice. of "the middle way" to cover all instances of these practices developed over the centuries and it would take a very long amendment indeed if we should specify every single thing where this is the relationship.

Second, an attempt to enumerate exceptions would imply that the Court is right and that we now wish to alter the American tradition. What is really needed is the reaffirming of the first amendment, restating the establishment clause precisely in terms of the prohibition our Founding Fathers had in mind, so that the Supreme Court will never be able to misread the establishment clause again.

My proposal is that the words, "the establishment of religion," be restated as "the recognition as an established church of any denomination, sect, or organized religious association."

Now the reason for changing the word "establishment" to "recognition as an established church" is that in the McCollum decision, the Court has already stretched "establishment" beyond its original meaning so we have to make that more precise. The reason for the other words is that they now stress religion beyond its original meaning so that we now have to state "denomination, sect, or organized religious association."

Since the Court has long held that the 14th amendment makes the 1st amendment applicable to the States, we would thus be sufficiently protected from what nobody now wants, an official established church on either the national or local level. At the same time it would be clear that the Federal courts may not take it upon themselves to block our wholesome American traditions in connection with religion in public life. The secularization and deconsecration of the Nation which these Supreme Court decisions have begun would be blocked. Our middle way would be preserved.

Now those who favor the Court's decision have already announced their intention to press on for the elimination of other time-honored practices. So our problem is not simply the matter of prayers in the school. In San Francisco, in the kindergarten, midmorning, when the children are given graham crackers and milk, there is a little songprayer they have used for decades and decades-quite nice and pleasant. A child that does not want to sing it does not have to (maybe some of them cannot sing anyway), but it has been announced by the American Civil Liberties Union that they have a desire for a restudy, a reexamination, a challenge, indeed, to this custom. The other announcements that you have read in the press indicating similar in