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In reading over the opinions handed down by several of the Supreme Court Justices, with respect to the decision of June 25, I can only conclude that the Court majority acted overconscientiously in behalf of minority rights. By so doing, the Court was, in fact, able to guarantee the rights of a small minority, who prefer to assume that there is no such thing as God or a divine will. This would have been perfectly proper in itself, except for a rather remarkable fact : that in the process of defending the rights of the minority, the Court saw fit to trample the rights of the majority. That is to say, the Court not only played to the prejudice of the smallest faction, but also took steps to see that the beliefs of the largest faction could not enjoy expression of any kind so far as schoolroom activity is concerned. This, to my way of thinking, is an inexcusable abridgement of the freedom of religion-an abridgement which must be done away with instantly, if we are to retain our respected position among the people of the free world, in which God is the recognized guiding force.
There have been many times in the past when the Supreme Court has moved to strike down a longstanding tradition of oppressive nature. All such Court decisions have won my approval on the grounds that no matter how long a tradition may stand, if it was wrong initially, it is wrong in the final analysis, even if it stands for centuries.
In this instance, however-in the matter of the school prayer-there was, until the Court decision was announced, no victim of oppression connected with the case. For certainly it is not oppressive to pray in the presence of a nonbeliever any more than it is oppressive for a nonbeliever to abstain from prayer while others are praying. Justice Black, in the Court's majority opinion, declares that when a teacher leads the class in prayer, the move can be regarded as coercive. On the other hand, is it not equally if not more coercive for a small group of nonbelievers to demand that the vast majority join them in abstaining from prayer? I hold that it is, and I further believe that in this regard I am supported by most Americans.
Far be it from me to assault the overall attitude of our highest Court. That is not my intention by any means. I merely wish to say that on this score this matter of the right to pray in a public school—I differ with the Court majority opinion in every essential detail and wholeheartedly concur in the minority opinion laid down by Justice Porter Stewart.
With this as my reasoning, I therefore endorse the proposals now the subject of these hearings, which if passed, would permit the continued practice of prayer in the public school classroom.
HOUSE OF REPRESENTATIVES,
Washington, D.C., July 26, 1962.
MY DEAR SENATOR EASTLAND: In order to avoid burdening the members of your committee with testimony which is duplicated by that of other witnesses, I am submitting by letter, rather than by personal appearance, a statement of the considerations which lead me to conclude that the Congress should propose a constitutional amendment to clarify the issue decided by the Supreme Court in Engel v. Vitale.
I have introduced House Joint Resolution 795, an amendment to the Constitution of the United States, to permit the offering of prayer in public schools.
In considering whether the Congress should propose a constitutional amendment as a result of the decision in Engel v. Vitale, one need not discuss the question of whether the Court's interpretation of the establishment of religion clause in that case was right or wrong. As a lawyer, I find the reasoning of Justice Stewart in his dissenting opinion more persuasive than the contrary opinions of Justice Black or Justice Douglas.
There are two considerations which compel me to conclude that a constitutional amendment should be proposed.
First, the decision of the Supreme Court in Engel v. Vitale is in conflict with the wishes of the great majority of the American people. The preamble to the Constitution makes it clear that the document is the people's constitution, ordained and established by them. The great majority of the American people do not want the Constitution to bar the voluntary offering of nondenominational prayer in their schools.
Given the conflict between the Supreme Court and the people, I think it incumbent upon the Congress to permit the people to amend the Constitution through their elective representatives in State legislative bodies. The Congress does not have the constitutional authority to amend the Constitution. It can only propose an amendment for action by the States. I cannot believe the Congress should withhold from the people the right to amend the Constitution if they desire to do so.
A second important consideration is the fact that the decision of the Supreme Court in Engel v. Vitale has produced conflict and chaos in schools. Prayer or Bible reading is practiced in the schools in close to 20,000 school districts throughout the Nation. Ceremonies that bear some religious character are common in public schools almost without exception.
In every State legal authorities are now puzzling over Engel v. Vitale in order to determine its effect on practices that have long been a cherished part of the educational process.
Some legal authorities contend that the Supreme Court's decision should be given the narrowest possible construction as prohibiting only the composition of a prayer by State educational authorities. Justice Douglas, on the other hand, in his concurring opinion suggests that the Court's reasoning makes unconstitutional a wide range of practices and programs including the use of the Bible for the administering of oaths, the employment of chaplains in the Congress and the armed services, the application of the National School Lunch Act to students in church-related schools. The State Board of Education of Vermont has concluded that the Supreme Court has found unconstitutional any “intermingling of religious expressions and practices in tax-supported educational institutions.”
In view of this chaotic situation, there is need for speedy clarification of the meaning of the Constitution. On this point, I would expect many of those who support the decision of the Supreme Court in Engel v. Vitale to concur.
The amendment which I have offered is limited in scope. It seeks only to cover the specific issue decided in Engel v. Vitale. I am aware of the suggestion of Bishop James Pike of the Episcopal diocese of San Francisco that the wording of the first amendment prohibiting an establishment of religion be changed. I would fear to tamper with language which has served this Nation well by establishing the boundary line that separates church and state.
All that need be done, in my opinion, is to write into the Constitution the popular belief that the establishment of religion clause was never intended to prevent schoolchildren who wish to pray from doing so nor to prohibit school authorities from making arrangements for them to do so.
I respectfully request that this statement be made a part of the record and sincerely hope that you and the committee may see fit to give favorable consideration thereto. Respectfully submitted.
WILLIAM E. MILLER, Member of Congress.
HOUSE OF REPRESENTATIVES,
Washington, D.C., August 21, 1962. HON. JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : The Supreme Court's decision in Engel v. Vitale, handed down on June 25, stirred up a storm of controversy and led to the introduction, in both the Senate and the House, of numerous proposals to amend the Constitution of the United States.
After careful study, not only of the Supreme Court's opinion, but also of the record and briefs before that Court (including the opinions of the several courts of the State of New York which had considered the case), I reach the conclusion that the Supreme Court rightly decided the issues before it, and that its decision does not require or even justify any of the proposed amendments of the Constitution.
On July 26 and August 2 the Judiciary Committee of the Senate held hearings on the resolutions proposing such amendments. I understand further hearings are in prospect, but may not be held before this Congress adjourns. Since I am not seeking reelection, I may not be able to be present at later hearings. On that account and because I would like to place my views before the committee, I ask
that this letter and the attached statement be included in the record your committee is making.
Of course, Mr. Chairman, if you desire that I appear before the committee, I will make every effort to do so, whatever the time. Sincerely yours,
John H. RAY, Member of Congress.
STATEMENT SUBMITTED BY JOHN H. RAY, NEW YORK
The basic facts and the question decided by the Supreme Court are simple.
In 1951, the New York State Board of Regents unanimously adopted a statement of belief which included its so-called regents' prayer, which has been read into the committee record. That prayer has been written by board employees. In 1955 the board unanimously adopted a further recommendation for school programs on America's moral and spiritual heritage, including the regents' prayer.
The District Board of Education in Hempstead, Long Island, in July 1958, directed its district principal that the regents' prayer be said daily, in all schools of the district, following the salute to the flag.
In December 1958, Engel and other parents demanded that the saying of said prayer be discontinued. The board took no action, and, in January 1959, Engel and others instituted the litigation under discussion by petition and notice of motion in the Supreme Court of the State of New York, County of Nassau, asking a writ of mandamus to compel the Board of Education of Union Free School, District No. 9, New Hyde Park, N.Y., to discontinue the saying of that prayer. No exception was taken to the actions of the board of regents. The action of the local board, in requiring daily use of the specified prayer, was the focal point in issue.
Respondents' answer, as well as the board of regents' statement of belief, are very interesting documents, but, at this point, I need only say that the answer denied all of the petitioners' alleged claims of illegality. Petitioners duly filed their reply.
The case was referred to Mr. Justice Meyer, and, on August 24, 1959, he filed his opinion. He defined the issue and his conclusion in these words: "Respondents' school board, having followed the regents' recommendation and directed recital of the prayer, the question presented to this court is whether, as a matter of power, rather than as a question of policy, it may legally do so."
Justice Meyer's opinion is long-more than 60 printed pages and I present here only a few selected passages:
"For reasons hereafter set forth at length, it is held that while the board may authorize, it may not require, the saying of the prayer in question, but that if it does so, it must bring the authorization to the attention of parents of children in the schools, establish a procedure for excusing nonparticipants not only from saying the prayer but from the room, if they so elect, and take affirmative steps to protect the religious freedom of both nonparticipants and participants” (record, p. 58).
"It is, however, also contended that the recognition of prayer is an integral part of our national heritage, and that, therefore, the 'establishment clause' cannot have been intended to outlaw the practice in schools any more than from the rest of public life; that is, that prayer in the schools is permissible not as a means of teaching 'spiritual values' but because traditionally and particularly at the time of the adoption of the 1st and 14th amendments, this was the accepted practice. With this argument, the court agrees” (record, p. 70). .
66* * * the prayer exercises would nevertheless be objectionable if there were direct compulsion. The board's resolution of July 8, 1958, is framed in mandatory terms. While the answering affidavit states that direction has been given that no child shall be coerced, or in any manner persuaded to participate, there is no indication that either the resolution or the direction has been brought to the attention of either the parents or the children. This is not a situation such as pertained in the Zorach case, where prior parental consent has been obtained. In view of that fact, and in view of the fact that a schoolchild cannot be expected to understand that a resolution, framed in mandatory terms, may be violated with impunity, or that such a child, not advised of his right to do so, will not normally be sufficiently aggressive to claim his constitutional privilege not to participate, the court holds that the resolution of July 8, 1958, in its present form is objectionable. The matter will, therefore, be remanded to the board for modification of its resolution to establish a procedure whereby the parents of each child are advised of the adoption of the resolution calling for the saying of the prayer, of the wording of the prayer, and of the procedure to be followed when it is said, and requested to indicated whether the child shall or shall not participate in the exercise" (record, pp. 105-106).
And again : "In summary, the petition, as amended, is held legally sufficient, the board's defenses are held insufficient and are dismissed, the petitioners' demand for a jury trial is denied for the reason that there is no triable issue of material fact, and the request for mandamus is, as a matter of discretion denied but the matter is remanded to the board for further proceedings, not inconsistent with the foregoing" (record, p. 116).
The petitioners appealed successively to the appellate division and then to the highest court of the State, the court of appeals. Justice Meyer's decision was affirmed by each of those courts.
The appellate division, by 4-to-1 vote, affirmed the order appealed from and stated "We agree with the views expressed in the opinion of the learned justice at special term" (record, p. 125). The court of appeals affirmed by 5-to-2 vote. Thus in the State courts nine judges upheld Justice Meyer's decision, and three judges differed. The two dissenting judges in the court of appeals expressed views closely similar to those later formulated by the U.S. Supreme Court.
After the court of appeals' decision, the school board complied with the requirements of notice to parents as set forth by Justice Meyer and the lower court, then entered its final decree dismissing the case. Later, in 1961, Engel and other petitioners obtained certiorari for review by the Supreme Court of the United States of the constitutional issues involved. On June 25, 1962, that Court handed down the decision under discussion. I quote the following passages from the Court's opinion:
"We think that by using its public school system to encourage recitation of the regents' prayer, the State of New York has adopted a practice wholly inconsistent with the establishment clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious; none of the respondents has denied this, and the trial court expressly so found” (p. 3).
** * * petitioners argue the State's use of the regents' prayer in its public school system breaches the constitutional wall of separation between church and state. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must, at least, mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government" (p. 4).
** * * 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.
"There can be no doubt that New York's State prayer program officially establishes the religious beliefs embodied in the regents' prayer (p. 8).
"The New York laws officially prescribing the regents' prayer are inconsistent with both the purposes of the establishment clause and with the establishment clause itself” (p. 12).
"It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance" (p. 14).
“The judgment of the Court of Appeals of New York is reversed and the cause remanded for further proceedings not inconsistent with this opinion" (p. 15).
This case has had careful court consideration four times: first by a single judge of the New York Supreme Court, then by the appellate division in New York, then by the New York Court of Appeals, and last by the Supreme Court of the United States. All four courts dealt with the case as one raising the issue of whether or not the local school board had the power under the Constitution to take the action in issue. All four courts were in agreement that if the element of compulsion was present, the relief sought by petitioners should be granted.
The three State courts decided that the element of compulsion would not be present if the respondent members of the local school board gave written notice to the parents and the children of the content of the prayer and made clear that no student would be compelled to participate in or attend during the saying of the prayer. That notice was given and thereafter the State court dismissed the case.
The Supreme Court of the United States found that in requiring the saying of a prayer prepared by a State authority, the school board exceeded its constitutional powers. It found, in other words, that the school board's action involved a kind and degree of compulsion which made that action unconstitutional.
It is clear that the Supreme Court's decision did not "outlaw” any prayer. The Court merely set aside a local school board order that a prayer which had been prepared and recommended by the State board of regents be said daily in the local schools. As one judge in a State court said, “While the board may authorize, it may not require the saying of the prayer in question."
STATEMENT OF U.S. REPRESENTATIVE L. MENDEL RIVERS, DEMOCRAT, OF SOUTH
CAROLINA Mr. Chairman, when the first President of our great Nation, George Washington, was inaugurated, he said in his opening address :
"It would be peculiarly improper to omit in this first official act my fervent supplication to that Almighty Being who rules over the universe, who presides in the councils of nations and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a government instituted by themselves for these essential purposes * * *."
Down through the glorious pages of the history of our Nation the inaugurations of our Chief Executives have been marked with prayer until this date.
Our colleagues in the House, in the Senate, and other governmental bodies also prayerfully recognize the existence of Almighty God.
How many ways we express our need and utter dependency on the Almighty in our daily life.
How desperate is the need of a faith for which we will fight, even die.
Now because of the unwarranted, unprecedented ruling by the Supreme Court, we today are suspended in uncertainty. Shall we leave prayer in schools under the suspicion of lawlessness?
Has our country drifted so far from the Almighty that we must bootleg religion into the public schools?
Is prayer to our Lord again to be ultimately driven to the secrecy of homes or the catacombs? Mr. Chairman, I pray not.
Prayer in our schools is a product of our national heritage. We dare not abrogate nor abolish it. To do so would put our national soul in peril.
Let us remember Moses' ancient admonition to Israel: “Beware lest thou forget God. And if you forget the Lord your God I solemnly warn you this day that you shall surely perish. Like the nations before you * * * you shall surely perish."
Mr. Chairman, this Nation will not survive it will perish just as warned by Moses if we permit prayer to die, if we permit our Nation to become a nation of agnostics, of skeptics, of atheists.
The Supreme Court declared prayer unconstitutional in public schools.
I believe it is mandatory for our survival as a nation to amend this atheistic ruling; that is, assuming such a ruling is constitutional. However, I question where the Supreme Court found its authority in the Constitution to render such a ruling.
The Court in its opinion cites no precedent or authority for its decision, but bases it solely on its interpretation, or misinterpretation, of the language of the Constitution.
In order to determine the authority of the Supreme Court, it is necessary to find it in the language of the Constitution itself.
The original Constitution nowhere mentions the subject of religion. The power of the Supreme Court to declare acts of Congress or actions of the sovereign States unconstitutional, is itself an outgrowth of interpretations and constructions of a previous Court, because no such specific power is found in the Constitution.
You must look to the amendments to the Constitution to find such authority, if you would assume such authority exists.