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Shortly after the ratification of the Constitution by the States and to meet objections raised to it in the ratification debates in the State legislatures, the first 10 amendments known as the Bill of Rights were adopted.
No doubt the first amendment is the one under which the Supreme Court assumed the authority for its decision. But the first amendment only said, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
It is difficult to understand how the few words quoted from the first amendment that merely prohibit Congress, not the States, from establishing a religion, could be construed as a restraint upon the legislative prerogatives of the sovereign States.
The first amendment does not operate against the States, and the 10th amendment reserved to the States all powers not prohibited by the Constitution.
So how does the Supreme Court stretch the first amendment into a prohibition against State government?
It is time that the American people reexamine the basic document that forms the foundation of our American Government. It is time also to reexamine the fallacious theory that the Supreme Court is empowered by the Constitution to make "the law of the land."
If powers have been assumed by the Government that exceed those granted by the Constitution—and I believe they have—the remedy is wisely provided in the Constitution itself by means of an amendment.
The time has come for us to make perfectly clear to the world how we stand in the matter of religion. If we are satisfied to be a pagan nation, then let us say so. If we want to declare to the world we are a God-fearing people, tolerant of one another's doctrinal differences, but united in theistic commitment, let us say so. But let us not dillydally. Let us not leave suspended in unresolved judiciary controversy a matter such as this.
Let us clearly resolve this matter through amending the atheistic ruling.
TEXT OF TESTIMONY OF JOHN DE J. PEMBERTON, JR., EXECUTIVE DIRECTOR OF THE
AMERICAN CIVIL LIBERTIES UNION
(Prepared in August 1962 but not submitted when hearings were ended) I appear today to oppose the several resolutions that have been introduced in the Senate to amend the Constitution to allow prayers to be recited in the public schools. The proposed amendments are designed to overturn the recent Supreme Court decision in Engel v. Vitale (370 U.S. 421).
At the outset, I wish to make it perfectly clear that the American Civil Liberties Union fully supports the decision in Engel. We found Mr. Justice Black's opinion a sound and restrained exposition of the establishment clause. It is rich in historical evidence which demonstrates the evils that the establishment clause was designed to forestall.
Critics of the decision who assert that it was too broadly written-that it failed to pinpoint where the prayer violated the Constitution and what was its relationship to the history of religious oppression so eloquently set forth by Mr. Justice Black-reflect a longing for a mechanical system of jurisprudence that would enable the Supreme Court to produce its answers with the same precision as do mathematicians. It is the happy lot of mathematicians, Mr. Justice Holmes once said, that they do things better with logarithms.
But we think the opinion makes the basis of its holding perfectly clear. By setting forth in some detail the travails that have historically attended the combination of church and state, Mr. Justice Black lays bare the purposes that the Founding Fathers intended the establishment clause to serve. He did not assert that any of these unhappy conditions now existed in the United States, but it was his purpose to show that they do not exist precisely because the first amendment to the Constitution does.
The opinion goes on to show that the regent's prayer, composed by the State and recited by directive in its schools, was a State-supported religious activity. That there was no direct governmental compulsion to recite the prayer is of no moment for, as the opinion says, “The establishment clause *** is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.”
The decision then was inevitable that the practice was constitutionally impermissible, even though the Court recognized "that the prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago.” But no matter how slightly it might breach the wall of separation between church and state, “It is proper," as James Madison is quoted as saying, "to take alarm at the first experiment on our liberties.” That, in our view, is the crux of the opinion and it is regrettable that it has generally been overlooked in the clamor that followed on the Court's decision.
Nor is the decision of the Court antireligious, irreligious, or sacrilegious. The Court frankly anticipated these charges and met them directly, but we need not rely on its ipse dixit, for there are independent reasons that support this conclusion.
Public schools that are free of religious practices do not imply indifference to religion. On the contrary, that policy recognizes that religion is a very important, but entirely private, affair—perhaps the essence of privacy-and is the one aspect of human conduct that we can confidently say should be totally in the domain of the home and the church and outside of the domain of government. A person's religious beliefs and activities cannot be intruded upon by any official of the state, nor should any official version of religion be imposed on any group of citizens. That the regent's prayer was relatively insignificant and supposedly nondenominational hardly justifies its recitation. On the contrary, an activity denominated as religious which is justified on the ground that it is the lowest common denominator of all religions, for that reason offends the consciences of many deeply religious persons. It can only be a distillate of platitudes that contains none of the meaningful declarations of faith upon which each religion is individually founded.
The charge is also made that the Supreme Court has secularized the schools. We think that kind of criticism fails to take into regard the purpose of the establishment clause and misleadingly focuses on its incidental effects. The purpose of the clause is to keep the Government out of all religions and religious activity. If its intrusion takes it into the schoolhouse, it is no less a violation of the first amendment than if it took it directly into the church. Those parents who wish to have their children educated in a religious atmosphere are free to have them attend parochial schools, or attend religious classes in church. They are not only free to do so, but their right to do so is affirmatively protected by the first amendment.
The clamor, then, in our view, is the result of unfamiliarity with the historical background of the establishment clause, and insensitivity to the danger the clause is intended to avert; namely, the threat to the free exercise of religion. There are endless ways in which free religious exercise can be trampled upon even where there is no established church. But the fear that establishment, even in an embryonic form, posed special dangers to freedom of religion persuaded the Founding Fathers that its prohibition deserved special expression adjacent to the guarantee of freedom of religion. As Justice Black said, "These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services." To assert, as so many have, that this danger is unreal because it could not arise in the United States is to confuse cause and effect. Actually, it will not arise only so long as the establishment clause is vigorously enforced, as it has been in the Engel case.
The question that inevitably arises is how far the Supreme Court decision goes. As far as the ACLU is concerned, it supports our long-held position that all religious activity is forbidden in the public schools. That includes the rituals of reciting the Lord's Prayer or excerpts from the Bible, and Christmas, Easter, and Hanukkah pageants; all activity that serves to indoctrinate religion. It does not exclude teaching factually about religion, as a historical or social fact, any more than it excludes teaching about the Crusades or the Reformation. Certainly, public schools may explain the meaning of a religious holiday as viewed by adherents of the religion of which it is a part, but may not seek to foster a religious view in the classroom or otherwise. It is indoctrination of religious belief that is forbidden, not the communication of information presented in an objective setting.
The criticisms of the Court, however, have gone beyond all reasonable bounds. Rather than discuss the real issues at hand, it seems that the inscription “In God We Trust," on U.S. coins and currency, has suddenly won the jealous
attention of most of our population, the Pledge of Allegiance and “The StarSpangled Banner" are said to be in dire jeopardy, and even the Declaration of Independence, which refers to the Deity, seems to be threatened with outlawry. No one, however, appears to have noticed that Mr. Justice Black expressly pointed out that “such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.” (The statement presumably went unnoticed, because it was contained in a footnote which was not carried even in the New York Times' reproduction of the Court's opinion.)
At bottom, what this entire controversy involves, of course, is the question how the establishment clause is to be interpreted. In our view, it not only means that the Government may not favor or support a particular religion, but neither may it assist, even on a nondiscriminatory basis, all religions. Its role must be neutral where religion is concerned. It can do nothing to favor religion, nor can it do anything to interfere with religious liberty. Religion is no concern of the state, for once it takes any step to involve itself in religious activity, directly or indirectly, it takes the first step toward infringement upon the free exercise of religion guaranteed to all citizens.
STATEMENT OF THE AMERICAN ETHICAL UNION AND OF ITS NATIONAL LEADERSHIP
ON THE PROPOSED SCHOOL PRAYER AMENDMENTS TO THE U.S. CONSTITUTION
(Adopted by the Fraternity of Leaders of the American Ethical Union, September
11, 1962; adopted by the American Ethical Union, October 15, 1962) In the New York School Prayer case recently decided by the U.S. Supreme Court, the American Ethical Union filed an amicus curiae brief before that Court, supporting the petition of the parent petitioners, one of whom is a member of an ethical culture society.
It is sometimes asserted that this controversy is between religionists and antireligionists. We ethical culturists reject this interpretation. We see the issue as between those who would maintain and strengthen the wall of separation between church and state and those who would breach that wall. We see our position as one in defense of the privacy of religious conscience.
The concept of freedom of thought and privacy of judgment in religious matters is so deeply ingrained in our faith as to be an essential part of our belief. A fundamental tenet of ethical culture is the conviction that moral and spiritual values can be cultivated most fully on the basis of respect for the worth of the individual person, without requiring any theological belief or disbelief. We do not impose upon our membership any theological position, but rather encourage freedom of thought within the bounds of moral responsibility. We deplore the intrusion of any public agency, legal or quasi-legal, into this area of personal religious conscience. We believe that it is equally wrong for the State to teach atheism or to teach any theological belief whatever.
The basis of our objection to religious ceremonials, including prayers, in the public schools is religious rather than irreligious. We would point to the fact that religion flourishes when left to private conviction and wanes when reduced to a pattern of ceremonial formalism.
Religion took a long step toward moral responsibility when the prophets of ancient Israel dared to admonish kings and their ministers. It is worth noting that this spiritual witness was accomplished by religious dissenters, now honored as prophets, who followed their own spiritual vision in opposition to the practices of the priestly functionaries of the official cult. History teaches us again and again that religion is corrupted as soon as it serves Caesar. Religious faith may have the practical effect of preventing juvenile delinquency or of discouraging communism. But the willful manipulation of religion for the sake of preventing juvenile delinquency or of discouraging communism will have quite different results. The high purpose to which religious faith is called is the service of its own spiritual vision; and its willful use for any other objective is a perversion of its consecration. Caesar cannot direct the vision of faith, no matter how lofty or enlightened Caesar's purposes may be.
Thus, quite apart from constitutional prohibitions, there are substantial historical and ethical reasons for believing that the sponsorship of public school religion is contrary to the spiritual integrity of religion itself.
We would also call attention to the fact that prayer is inherently sectarian. This fact has been ignored in the discussion of so-called nonsectarian prayer. Prayer is inherently and unavoidably sectarian, because every prayer presupposes a particular diety to be addressed.
Leaving the rights and opinions of atheists and agnostics entirely aside, it is a fact that there is no uniformly accepted concept of God or a commonly held view of a Supreme Being. Men and women who profess belief in a God or Supreme Being range in their views from those who believe in a literal, supernatural person to those who conceive the divine power as a nonpersonal creative principle, as a universal process, or as a purely abstract ideal. Thus, there is no one idea of God which is acceptable to all believers; there are many differing, even contradictory ideas of God. Some religions offer prayers; others oppose formal prayer and choose meditation or contemplation without petition.
The sectarian and partisan character of petitionary prayer can be seen in the fact that petition implies the existence of a particular kind of God; namely, a deity who is personal in character, conscious of human beings and subject to the influence of their entreaties. One would not logically offer a prayer of petition to an impersonal, creative principle.
The regent's prayer of the State of New York is an example of petitionary prayer; so is the Lord's Prayer, although according to the New Testament, Jesus expressly prohibited its use, or the use of any other prayer, except in private worship.
Thus, prayer in the ordinary sense favors one particular form of God belief over other forms. It favors those sects and schools of religion which teach such an interpretation of deity over those which hold to other interpretations. Therefore, in the most literal sense, prayer is inevitably and unavoidably a sectarian activity. Some sects would seek direct divine intervention in the natural order, as in prayer for rain or protection from disease. Other sects would regard such uses of prayer as superstitious.
As a matter of simple justice, constitutional issues aside, the Government and its agencies ought not to engage in activities which favor one form of religious belief over another. A sectarian opinion is still sectarian even though a combination of sects may share it. Beliefs held by Christian sects generally, but not by Jews and Buddhists, are clearly sectarian. Beliefs held by fundamentalist Protestants, but not by modernists or liberals, are sectarian, insofar as they uphold one religious tendency against another.
In summary, all prayer and all religious activities are inherently sectarian despite efforts to make them appear otherwise. Faith by its nature is personal and beyond legislation; therefore to nationalize or to socialize the religious function is to destroy its spiritual vision. Religion by Caesar becomes inevitably counterfeit religion.
For these reasons, if a constitutional amendment were adopted declaring socalled nonsectarian prayer lawful in the public schools of this land, the religious life of the Nation would be further confounded, exploited for secular aims, and corrupted. We would gain the appearance of spiritual vision at the cost of its reality. This is a prospect which we fervently hope and urge that we shall be spared.
STATEMENT OF THE AMERICAN JEWISH COMMITTEE ON PROPOSED AMENDMENTS TO THE U.S. CONSTITUTION TO PERMIT THE USE OF PRAYERS IN THE PUBLIC SCHOOLS
The American Jewish Committee, a national organization with chapters and units in over 50 cities and with membership in over 600 additional communities in the United States, was organized in 1906 and incorporated by a special act of the Legislature of the State of New York in 1911. Its charter states :
"The objects of this corporation shall be to prevent the infraction of the civil and religious rights of Jews, in any part of the world, to render all lawful assistance and to take appropriate remedial action in the event of threatened or actual invasion or restriction of such rights, or of unfavorable discrimination with respect thereto.”
It was in pursuance of these objects that the American Jewish Committee in 1925 defended the right of parents to send their children to parochial schools to receive the type of education that the parents deemed best for their children. The great constitutional lawyer, Louis Marshall, then president of the American Jewish Committee, filed an amicus curiae brief in the U.S. Supreme Court in Pierce v. Society of Sisters of the Holy Name of Jesus and Mary (268 U.S. 510). That brief characterized as "an invasion of liberty” the attempt of the Legislature of Oregon "to say to parents that, regardless of their ambitions and aspiration for their children, regardless of the love and affection which they bear them, regardless of their conscientious beliefs respecting the duty which they owe for the ethical, moral, and religious rearing of their children, the State may come in and take away from them that sacred right and the performance of the duty which they conscientiously believe that they owe to their children and to future generations." That statement in defense of the constitutional right of parents to send their children to religiously oriented private schools was accompanied, in the same brief, by the following: “Under our system of government the State is powerless, as it should be, to give religious instruction.”
It was in pursuance of the same charter objects that 37 years later the American Jewish Committee in 1962 filed an amicus curiae brief in a U.S. Supreme Court case arguing that the resolution of a local school board directing the recitation of the New York regents' prayer as a daily procedure in the public schools violates the constitutional prohibition against an establishment of religion. That case was Engel v. Vitale (82 S. Ct. 1261), and the U.S. Supreme Court on June 25 of this year handed down its 6-to-1 decision banning the use in public schools of a prayer composed and endorsed by the board of regents, an agency of the State.
Perhaps the major contribution of American political thought to Western civilization was the concept of the separation of church and state, which was intended to safeguard religious freedom and preserve our Nation against the type of tyranny that resulted in the Old World from using the state to achieve religious purposes or using the churches to buttress the temporal authority. This political and social philosophy, adopted by the Founding Fathers and written into the Constitution of the United States in the first amendment, is not based upon any hostility to religion, but upon the sound premise that both religion and government can work best to achieve their objectives if each is free from the other within its respective sphere. It has been this theory of relationship between religion and government, between church and state, that has nurtured the healthy development of over 250 different religious sects, denominations, and groups in the United States, each dependent solely upon the voluntary support of its adherents and not upon winning political power or receiving contributions from the Public Treasury. As Mr. Justice Frankfurter said in his concurring opinion in McCollum v. Board of Education (333 U.S. 203):
"* * * We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion * * *" (at 232).
The Supreme Court decision of June 25, 1962, was not the first time that an American court had banned religious exercises from the public schools despite provision for the excuse of children who object on grounds of conscience. The Supreme Court of Wisconsin, at the urging of Catholic petitioners, banned the reading of the King James version of the Bible from the public schools of that State in 1890:
“It is said, if reading the Protestant version of the Bible in school is offensive to the parents of some of the scholars, and antagonistic to their own religious views, their children can retire. They ought not to be compelled to go out of the school for such a reason, for one moment. The suggestion itself concedes the whole argument" (State ex rel. Weiss v. District Board, 76 Wisc. 177, 219, 220 (1890)). [Emphasis in original.]
The Supreme Court of Illinois reached a similar conclusion in 1910 when members of the Roman Catholic Church in a school district objected to the reading of the Protestant Bible in the public schools :
“The exclusion of a pupil from this part of the school exercises in which the rest of the school joins, separates him from his fellows, puts him in a class by himself, deprives him of his equality with the other pupils, subjects him to a religious stigma and places him at a disadvantage in the school, which the law never contemplated. All this is because of his religious belief. If the instruction or exercise is such that certain of the pupils must be excused from it because it is hostile to their own or their parents' religious belief, then such instruction or exercise is sectarian and forbidden by the Constitution” (People es rel. Ring v. Board of Education, 245 Ill. 334, 351 (1910)).
And the highest court of Louisiana did likewise in 1915 at the urging of Jewish and Roman Catholic school patrons :
"And excusing such children on religious grounds, although the number excused might be very small, would be a distinct preference in favor of the