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cut argument of Mr. Justice Douglas, I would think this would apply even to that.
On the other hand, practically speaking, I cannot imagine the Court ruling that out. I think they would find a way around it because that is way, way over the edge.
During such a period of meditation, anyone could be thinking about anything from the sports page he read that morning to the glories of The Creator and since it would be going on inside the heads of the people during the silence I would suspect that would not be ruled out.
I might say, in practical terms, what the Court might do on any one of these given things if they came up, we cannot predict.
The very fact that Mr. Justice Black, in a footnote, attempted to save, as it were, congressional prayer and the Supreme Court's own prayer, shows that there would be doubtless great reticence to extend the principle of this case into some of these other realms.
On the other hand, the clarity of Mr. Justice Douglas' position is such that, logically, I think the Court would have difficulty not going right on with the principles involved. Therefore, my concern: much is at stake in American life here, and I do not want to depend upon the way the Court works these things out one by one, having seen what they have done in that regard.
For example, in the Jehovah's Witness matter, as you will recall, they first said the Jehovah's Witness children had to do the salute, and within little more than a year's time they said the exact opposite.
Likewise, when in the case of McCollum v. Champaign School District, the first case, they barred released-time religious education and, as Mr. Justice Frankfurter pointed out in his dissent in Zorack v. Clausen, the Court really was deserting McCollum and taking an entirely different philosophy in reasoning—Mr. Justice Douglas then saying that "our public institutions presuppose a Supreme Being” and the only distinction between the two cases—the distinction the majority opinion sought to rest on—was that the classes were across the street from school property, and this distinction does not hold up at all, because churches use public school property regularly, and have all along in this Nation. For example, right now, in my diocese, we have a congregation using the public school on Sundays—for worship and for Sunday School. Likewise, in another place our church supplies the public schools with extra classroom space in our Sunday school buildings across the street from the school—when the school does not have enough room. The distinction between Zorack v. Clausen and McCollum v. Champaign School District does not hold up. And the reasoning totally changed.
The Court, within the short period between the decision got very enthusiastic about the relationships between the churches and the Nation, and between religion and society, and Mr. Justice Douglas there said this wall of separation really isn't at all that clear and tended to fuzz up the reasoning of the McCollum case.
I simply mention these cases—and if there were time I could mention others to show that the Court itself has not always been in a consistent position in relation to this matter—and I do not say that in a derogatory manner. But because of that fact I believe we have to take the occasion of this decision to clarify the meaning of the first amendment, and to protect against the vagaries which have created a serpentine wall.
Senator Hart. Before we were to adopt the language that you suggest in order to achieve some of the good ends that you suggest we might achieve, I think we better be sure that pretty solid answers to some of these possible bad side effects are available.
Senator DIRKSEN. I am just seated here prayerfully, Bishop, trying to absorb it all.
Senator KEATING. Bishop Pike, we are very grateful for you coming here with your wealth of experience in both the fields of law and religion.
I want to say to you that we miss you in New York State and congratulate California. They have taken you away from us, but that is not the only thing that California has taken.
I speak as one who agrees as a lawyer with the dissenting opinion of Justice Stewart. I do not believe that the language in this prayer involved by any stretch of the imagination the establishment of religion, even though it was promulgated by the State.
However, and, secondly, I rather like the language you have suggested. I agree with you that when it comes to the Constitution we should endeavor to not load it down with language which is unnecessary. We should try to keep the Constitution a compact document.
Therefore, I rather like your language more than most of the other suggestions that have been made.
It has been contended that the decision in the Engel case was rather a very narrow one and again as a lawyer, I believe that is true,
I believe the actual decision found its vice in the promulgation of this prayer by the State, even though you are quite right that the State, before it did so, had conferred at great length with the three major faiths represented in New York State.
There are a number of other decisions coming up from Florida and Maryland and other States. Is it your feeling that we should try to act now or whether we should await one or two of these other decisions to determine just within narrower confines, what the Court did mean to say?
Bishop PIKE. This is an interesting consideration.
Offhand, I would think that because we have the McCollum case, which stretched the word “establishment," and now we have this one which has stretched the word "religion” there is enough data on which to act. But I realize that there are other considerations the committee should take into account.
Senator KEATING. In the Florida case I think they repeat the Lord's Prayer and there are many who feel that the actual wording of the Lord's Prayer might offend more sensibilities and might come closer to the establishment of a religion than the language of the prayer which is involved here.
Bishop PIKE. This is a good point. No one can possibly tag this one, whereas the Lord's Prayer obviously being in the New Testament and being in the words of Jesus Christ, is thought of as a Christian prayer.
Yet, theologically speaking, Jesus was never more Jewish than when he uttered the Lord's Prayer. Every single concept in it is a summation of Judaism. Now whether psychologically that is observed or seen or felt in a community, it rests more on questions of strategy and policy than on constitutionality.
I am glad you started your statement, Senator, by saying, “As a lawyer." I think we have to make this distinction. First, what is legal; and, second, what is wise from a policy point of view in a given community? This can vary so much from community to community; and yet, leaving that as an open matter which men could discuss in terms of each school district depending on the makeup and the feeling of the people and their intentions. The legal and constitutional question still remains; that is, the very freedom to do that. In spite of the Court's application through the 14th amendment, of the 1st amendment to the States, I still think we cannot forget in our thinking this other secondary purpose of that establishment clause—to keep the Federal Government out of this very kind of weighing, theological analysis, and the psychological and public relations aspects of the matter and the art of the possible"_which politics has been defined asand to leave this to local authority.
In terms of the honorable chairman's reference to more homework to be done—which I fully appreciate I would like to say for the record that in a short time in this sort of extemporaneous dialogue, obviously I have been somewhat "broad-brush” in some of these things. Some of my own statements could do with a little footnoting and qualification here and there.
I must say that in our seminar in church-state relations at Columbia Law School in which I was taught for 5 years, we took 2 hours a week for the whole semester to discuss these things, and hence I could be a little more precise than I have been able to be.
Senator KEATING. You have been very helpful, Bishop Pike.
At least this decision, if it served no other useful purpose, it has focused the attention of the Congress upon prayer which is certainly a desirable result in itself. We are very grateful to you. Bishop PIKE. Thank you, Senator. Senator HART. Senator Scott ?
Senator Scott. Bishop, as a churchman of your faith and mine and as a lawyer, I agree that we are confronted by a problem which so far as the form of an amendment to the Constitution is concerned we admittedly, I think we should indeed, reaffirm the first amendment more clearly if we can. I agree the question is wording and the question is, of course, what to do to get around the prohibition which we now have against a strictly prescribed prayer.
Former Representative Walker, of Michigan, when confronted by the Supreme Court's interpretation of acts of Congress used to say that whenever we passed an act, we should add at the end of the act, “By God, we mean it.”
The “By God” part of it would be stricken out by the Court, too.
Bishop PIKE. It depends on how he meant the phrase. Paradoxically enough, it might have a better chance of surviving as a swear word than if reverently meant.
Senator Scott. What disturbs me, among others, is the question raised by our distinguished Senator from Michigan, our chairman, and I think he has raised very serious and important questions when he asked a witness not long back what would be the situation if a State prescribed a prayer and chose the “Hail Mary" of his faith.
If the State is to prescribe a prayer, presumably it can prescribe any prayer, the Jewish or Catholic prayer or a prayer which attempts to be one of these things, and which is not theologically correct.
What is your reaction to that? It does concern me.
Bishop PIKE. I would think the adoption of the “Hail Mary," the "Ave Maria," even under my wording for an amendment would be a recognition of a given denomination as an established church. The Roman Catholics should be quite free to say this prayer; but it should not be selected, of course, as the official prayer for everybody.
Now, as to your second point, however, suppose in the very attempt to be “across the board" as this New York prayer certainly was, there is some concept put in it by those who prepared it which would seem heretical to a given religious body.
There is where I think this phrase I have been using comes in. I admit that the complete union of church and state, on the one hand, or the complete secularization of the state (as, for example, under the French Revolution on the other), is much more logical and neat and clean. You know where you are. But we have somehow in our tradition chosen this “middle way," a kind of "muddling through" in these things. I think we can rely pretty much on the way things work out.
The very fact the New York prayer exempts those who do not want to participate would mean that a Confucianist-if there were such in à New York school-who doesn't believe in God at all--and yet it is a very respectable religious tradition--would view the prayer as a formality or he would have mental reservations or he would not participate.
In other words, in this "middle way" approach (and this describes the way of a number of our American ways of doing things outside of the church-state field), it is not possible to tie up absolutely everything.
I will grant that this prayer does not quite meet the needs of a Shintoist or a Buddhist—and we have more of those in my State than
I am not so much urging that everybody get with it now and adopt this prayer as I am to leaving the freedom to the local authorities and States to work these things out in a sensible way.
It is interesting that the Roman Catholic Church's reaction almost unanimously to this decision has been to endorse this prayer.
Senator #art. Let me interrupt there to say that I know, I have heard it.
Bishop PIKE. And I mention that not just to add further authority to my position, though I am glad to do that too.
Senator Scott. One of our difficulties then is to find a way to spell out what we are trying to do, as I understand it.
Part of the difficulty I think you have raised in your conclusion when you say that our Constitution was meant to protect the minorities but was not meant to impose on the majority the outlook of any given, selected minority.
We in Congress are always expressing our concern about minorities and it is a Federal concern. The imposition of any given minority on the majority I am sure I entirely agree with you.
It might be their right to do it but if it is their right to do it, we ought to consider rephrasing our Constitution as to make clear whether we want that done or whether we have another way of approaching it.
First, should we have a constitutional amendment?
In my opinion insofar as it is now formed, I think we should. But I am not at all happy with the wording of any of these proposed constitutional amendments,
Did you suggest the actual words that are in here?
Bishop PIKE. I did suggest a form of words. And by the way, I have been reworking those words ever since I first got into this matter because I keep seeing difficulties, too.
That is why I would endorse your distinguished chairman's advice of care in thinking about this very carefully. This form of wording is not infallible. I think it starts out all right. It gets at the two main problems. Have "establishment” say what it means and “religion” say what it means.
As to the precise point you mention, how can we be sure the Constitution protects the minority-true, the New York regulation did. But suppose some State had a regulation that did not so protect as was the case with the flag salute and where the Court had to write in the protection of the Jehovah's Witnesses?
I think “the free exercise of religion” works both ways. It is the freedom to be something and act upon it within limits. That does not want us to get very far, of course, but in general it is positive in that sense; but it is also negative. It is the freedom not to and this is made pretty clear in the case of the notary in Maryland where it was required that one has to believe in God to be a notary, and the Court struck that down.
Under “free exercise," he is free to think whatever he wants and act upon it, whether it is atheism or not. And before that decision I supported his position in an article I wrote in Coronet entitled, “The Right To Be an Atheist.” That was in the last issue of Coronet before it went out of business. I think the free exercise clause probably is a protection here. I suspect all through the Bill of Rights we would find enough things that will protect that freedom. But if there is any doubt about that, I can see a rider put on that provides in no case should the voluntary character of any of these things be vitiated.
Now, what I really meant though by a minority imposing its position on the rest of us is this: Everybody has a religion, has a set of premises taken on faith by which he operates. It may be held or unconsciously held. It may be organized or in no way identified with a particular sect.
Everybody has a god or gods—Mammon, Venus, the Baalims, Mars, and so forth. The ancient gods are still with us. But if a man has only one God there is more chance a person will be an integrated person because his purposes can be coordinated.
Secularism is a religion. Communism and Marxism is a religion.
Secularism is precisely an image of life which includes man and things without God, time and history without eternity, and so forth.
Now, it is not neutral if by default we end up presenting that image in the school, never even suggesting a challenge to it or another dimen