STATEMENT BY GEORGE MAISLEN, PRESIDENT, UNITED SYNAGOGUE OF AMERICA

Mr. Chairman, I should like to express my gratitude to you and to all the members of the Committee on the Judiciary for affording me this opportunity to express the views of the United Synagogue of America on the proposal, now under consideration by your committee, to enact an amendment to the Bill of Rights sanctioning the recitation of prayer in the country's public schools.

The United Synagogue of America, which I have the honor of serving as president, is the congregational arm of the conservative movement in Judaism and embraces more than 700 synagogues in the United States (as well as many in Canada). Their members and adherents total about a million and a half Jewish men, women, and children, representing approximately a third of the entire Jewish community of this country.

The proposal to amend the Bill of Rights, which has been the bulwark of the rights and the liberties of the American people for about 175 years, has been prompted largely by the Supreme Court's recent decision barring a governmentsponsored prayer from the public schools of New York State. The United Synagogue, which welcomed the Supreme Court's decision as conforming to the principle of separation of church and state, strongly opposes the proposed amendment on the ground that it would be repugnant to that principle.

The first amendment to the Constitution provides that "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof." It is to the clause "or prohibiting the free exercise thereof" that I would like to address myself; I believe that this clause has more bearing on the issue than the "establishment of religion" clause. We believe that there is general agreement that there has never been, and that there is not now, any intention of enacting the establishment of religion in America; that is to say that any system of theology or religious sect should be established by our Government, for our Government, to the exclusion of all other systems of theology or religious sects.

However, the proponents of the proposed amendment construe that portion of the first amendment that provides that no law shall be enacted prohibiting "the free exercise thereof" to mean that to bar prayers from the public schools violates the free exercise of religion. To circumvent the Supreme Court's decision, therefore, they seek to embody in the first amendment such language that will specifically provide for the right to offer prayers in the public schools.

We of the United Synagogue of America have carefully examined the proposed legislation and feel that we must all ask ourselves several questions. First, when our Founding Fathers framed the first amendment, what did they have in mind? Did they desire an interpretation such as that reflected in the Supreme Court's decision or such as that reflected in the proposed amendment? If, were they living today, they would welcome the Court's interpretation. We must then ask ourselves: Do the proponents of the proposed amendment desire to change the Founding Fathers' original concept of religious freedom, and if so, for what compelling reason? On the other hand, if the proponents of the proposed amendment believe that our Founding Fathers never intended the interpretation of the Supreme Court, then we must examine the historical development of the first amendment.

When James Madison was asked to prepare a statement of the full case for separation of church and state, he wrote the famous "Memorial and Remonstrance Against Religious Assessments." Both Madison and Jefferson, who sponsored the Bill of Rights that was ultimately adopted, were religious men, and there was no irreligious or atheistic force in their desire to create the "wall of separation between Church and State," as Thomas Jefferson expressed it; rather, they had in mind the historical background of their ancestors: the persecution of Baptists and Quakers and other religious sects. Our Founding Fathers were students of history as well as statesmen of stature. For the first time in the history of any nation, a new principle of government was promulgated specifying that religion was to be kept outside the authority of government and that the government was forbidden to infringe upon religious rights or to violate them.

So that in the formative period of our Government, when our Constitution was molded, this doctrine of separation of church and state was clearly enunciated. Bancroft, in his "History of the Formation of the Constitution," wrote:

"Vindicating the right of individuality even in religion, and in religion above all, the new Nation dared to set the example of accepting in its relation to God

the principle first divinely ordained in Judea. It left the management of temporal things to the temporal power, but the American Constitution, in harmony with the people of the several States, withheld from the Federal Government the power to invade the house of reason, the citadel of conscience, the sanctuary of the soul, and not from indifference, but that the infinite spirit of eternal truth might move in its freedom and purity and power."

In 1796 George Washington, in negotiating the treaty with Tripoli which was sent to the Senate in 1797 during the Presidency of John Adams, wrote the following significant words, which should allay any doubt as to the religious character of our Government:

"As the Government of the United States of America is not in any sense founded on the Christian religion, as it has in itself no character of enmity against the laws, religion, or tranquillity of Mussulman; and as the said states have never entered into any war or active hostility against any Mohammedan natives, it is declared by the parties, that no pretext arising from religious opinions shall ever produce an interruption of harmony existing between the two nations."

As Richard M. Johnson said in his famous report to the Congress as to whether the mail should be carried on Sunday:

"What other nations call religious toleration, we call religious rights. They are not exercised in virtue of governmental indulgence, but as rights of which the Government cannot deprive any portion of citizens, however small. Despotic power may invade those rights, but justice still confirms them. The agnostic, the infidel, the nonbeliever of every stripe and shade, find protection beneath the aegis of that noblest emanation from the human intellect, our Constitution." The interpretation of the Supreme Court in the case of the regents prayer is in consonance with the thinking of the Supreme Court of Ohio in the 1870's, in the case of Minor v. Board of Education, which sustained an ordinance forbidding the reading of the Bible in schools. The opinion was read by Judge Alonzo Taft, the father of our illustrious late President and Chief Justice William Howard Taft.

In considering the applicability of the phrase "the free exercise thereof" to the issue at hand, I should like to submit to this committee what I may call the concept of the captive child. Many pupils of tender years attending public school have little or no religious training in the home, and are therefore unable to recognize or to discriminate among the prayers offered in the public schools. They are unable to make a judgment as to whether they want to participate in such prayers. Under our system of compulsory education, the child is required by law to attend public school, unless he desires or is able to attend an accredited parochial or private school. Children who attend public schools do so under compulsion of law. They have no choice in the selection of their teachers. They have no choice in the selection of their classmates, who may be of different religious faiths. In compelling the child to attend a public school, there is a basic violation of his constitutional right of association, which is, however, justified under the concept of public welfare, that is to say, the "balancing power" of the Constitution.

This justification, however, is valid only for the purpose of securing the child's secular education. Within the scope of this justification for Government involvement in secular education there can be no room for Government involvement in religious education through the addition of prayer to the secular curriculum or indeed through the introduction of any form of religious observance in the school program.

Such Government involvement in religious education could not possibly be construed as falling within the meaning of free exercise of religion. To impose upon the captive child-although his captivity is justified by the compelling and overriding purpose of guaranteeing his secular education-any form of religious observance would mean to subject him even if only for a few moments to a denial of his religious freedom. If going to school were a voluntary deed, done with full knowledge of the secular and religious influences to which the child is exposed, it would be no abridgement of his religious freedom to introduce religious elements into the school program. Indeed, because he was attending voluntarily, he would in a way be exercising religious freedom. If he disagreed with any portion of the curriculum, secular or religious, he would have the freedom of choice to exercise his freedom of religion by absenting himself from the school. Our children today do not have that freedom of choice about going to school. The child is not free to absent himself from school because he disagrees with any part of the curriculum. To guarantee freedom of religion, therefore, the

only means open to us is to abstain from introducing any religious element in the curriculum. Only thus can we secure for the child the guarantee of the first amendment that the Congress shall make no law prohibiting the free exercise of religion. By introducing prayer in the public schools there is a coercive, compulsive, or at the very least a subtly persuasive form of religion which violates the constitutional "free exercise thereof."

For that period of time that the religious prayer is recited in the school, the school becomes a house of worship. To that house of worship we would, under our system of compulsory education, be sending our children willy-nilly. On the American scene religion has always been and should always be a voluntary right in every sense of the word, not to be abrogated for any period of time, however brief.

This concept of the captive child, it seems to us of the United Synagogue, lies at the heart of the Supreme Court's decision, as it lies at the very core of religious freedom. We feel that our children should be taught religion; the Old Testament enjoins us, "These words, which I command thee, shall be upon thy heart; and thou shalt teach them diligently unto thy children." But those children should be taught God's words where alone such teaching can be of value in a free atmosphere devoid of any hint or taint of coercion, at a time and place of the parents' own choosing, in a form and manner acceptable to the family's religious convictions. Religion must be taught always to a free child, never to a captive child. In the language of the Constitution, the child must be able to pray in the free exercise of his religious rights. He must never pray where governmental authority has told him he must.

The United Synagogue of America earnestly prays that no legislation will be enacted by the Congress which will in any way compel or threaten to compel the children of America to worship in Government agencies or under the aegis of temporal authority. The religious training of American children should be permitted to flourish in church, synagogue, and home, where it belongs. Religion cannot become, however remotely, an arm of Government.

STATEMENT ON PROPOSED AMENDMENTS TO THE U.S. CONSTITUTION CONCERNING PRAYERS IN PUBLIC SCHOOLS, SUBMITTED TO THE SENATE COMMITTEE ON THE JUDICIARY BY 110 DEANS AND PROFESSORS OF LAW AND POLITICAL SCIENCE AT AMERICAN UNIVERSITIES

In our Nation the Constitution is the supreme law of the land and the Supreme Court is the tribunal to which has been committed the responsibility for the final interpretation of its provisions. As a people committed to the rule of law we are obligated to comply with the restrictions imposed upon us by the Constitution as interpreted by the Court, whether or not we agree with the constitutional provision or its interpretation. The people of the United States, of course, have it within their power to change the Constitution by amending it in accordance with its terms, and the recent decision of the Court in the case of Engel v. Vitale (370 U.S. 421), invalidating public school sponsored recitation of prayer has given rise to proposals to amend the Constitution, and specifically the first section of its Bill of Rights, to authorize such recitation.

We express our strong opposition to any tampering with the Bill of Rights. We believe the decision of the Supreme Court to be required, not only by its prior decisions interpreting the first amendment, but by the cause of religious freedom and the welfare of all Americans as well.

It is not the Supreme Court's decision but the action of State authorities in sponsoring public school recitation of prayer that is truly hurtful to religion. It is unreal to expect that an appreciation of religious values can be communicated to our children by the rote recitation of formalized prayer in public school classrooms. Whatever is good and meaningful in prayer must inevitably be lost by its mechanical repetition in an atmosphere devoid of the religious spirit which only the home and church can provide.

If the prayer selected by State authorities for public school recitation is taken from the liturgy of one faith, the action is unfair to and a violation of the religious freedom of children adhering to other faiths. If it is formulated so as to appear nonsectarian, as in the case of the New York regents' prayer, it not only infringes upon the rights of those affiliated with no religious body, but it poses the danger of the establishment of a new, public school religion which, in seeking to be least offensive, will succeed only in being least meaningful, and yet most pervasive.

The first amendment's guarantee of religious freedom and the separation of church and state has during its history of almost a century and three-quarters thrown its mantle of protection at one time or another over many religious groups. There is indeed no American to whom it has not directly or indirectly secured the blessings of liberty. Every individual and every group in our Nation has a great stake in its preservation.

Since the adoption of the first amendment, the United States has escaped much of the bitter religious conflict and sectarian strife that have divided other nations of the world and driven men to violence and bloodshed. That good fortune has been due in no small part to two of the truly great contributions the American people have made to Western civilization: the concept of the separation of church and state and the free public school system. The first, by protecting religion against the intrusion of civil authority and by making it impossible for the state to become a battleground for sectarian preference and favor, has preserved both our political freedom and our religious freedom. The second, by providing for the education of our children on terms of complete equality and without cognizance of their differences in religious beliefs or disbeliefs, has been the cornerstone of our American democracy. The intrusion of religion upon the public school system both threatens the separation of church and state and challenges the traditional integrity of the public schools. That intrusion, if permitted, will greatly endanger the institutions which have preserved religious and political freedom in the United States and have prevented religious warfare in this Nation. The decision of the Supreme Court in the Regents' Prayer case has warded off that threat. It would be tragic if the beneficial effects of that decision were nullified by any tampering with the Bill of Rights. Respectfully submitted.

Benjamin Aaron, University of California; Henry J. Abraham, University of Pennsylvania; Norman Abrams, University of California; Albert R. Beisel, Jr., Boston University; Curtis J. Berger, Columbia University; Loren P. Beth, University of Massachusetts; Edward J. Bloustein, New York University; Harry C. Bredemeier, Rutgers University; William J. Brockelbank, University of Puerto Rico: Alexander D. Brooks, Rutgers University; Ralph S. Brown, Jr., Yale University; Edmond Cahn, New York University; Elwood H. Chisholm, Howard University; Thomas G. S. Christensen, New York University; Chapin D. Clark, University of Oregon; Homer H. Clark, Jr., University of Colorado; Robert Emmet Clark, Albuquerque, N. Mex.; William Cohen, University of California; Daniel G. Collins, New York University; Rita W. Cooley, New York University; Thomas M. Cooley II, University of Pittsburgh; Vern Countryman, Albuquerque, N. Mex.; Robert F. Cushman, Jr., New York University; Norman H. Davies, Carnegie Institute of Technology; John A. Davis, City College of New York; Norman Dorsen, New York University; Emmett E. Dorsey, Howard University; Gray Dorsey, Washington University; Steven B. Duke, Yale University; Henry W. Ehrmann, Dartmouth College; Thomas I. Emerson, Yale University; John H. Fenton, University of Massachusetts; Mark Ferber, Rutgers University; Henry M. Foster, New York University; John P. Frank, Phoenix, Ariz.; Lionel H. Frankel, Wayne State University; Jules Gerard, Washington University; Edward M. Goldberg, Los Angeles State College; Daniel Goldrich, Michigan State University; Donald H. Gordon, Wayne State University; Milton Greenberg, Western Michigan University; Howard L. Greenberger, New York University; Don J. Hager, Los Angeles State College; Fowler V. Harper, Yale University; Reuel G. Hemdahl, University of Louisville; Samuel Hendel, City College of New York; John H. Herz, City College of New York; J. Myron Jacobstein, University of Colorado; Frank R. Kennedy, University of Michigan; Robert B. Kent, Boston University; Louis C. Kesselman, University of Louisville; Donald B. King, Wayne State University; Edward C. King, University of Colorado; Maurice Kirk, Washington University; Maurice Klain, Western Reserve University; David R. Kochery, University of Buffalo; Milton R. Konvitz, Cornell University; Samuel Krislov, Michigan State University; William M. Kunstler, New York University; Martin Landau, Brooklyn Col

lege; Hiram H. Lesar, Washington University; Werner Levi,
University of Minnesota; Victor T. LeVine, Washington Uni-
versity; W. Duane Lockard, Princeton University; Robert B.
McKay, New York University; Daniel Mandelker, Washington
University; Robert E. Martin, Howard University; Richard C.
Maxwell, University of California; Albert R. Menard, Jr., Uni-
versity of Colorado; Wallace Mendelson, University of Texas:
Frank Miller, Washington University; Richard S. Miller, Wayne
State University; Herbert Morris, University of California;
Gerhard O. W. Mueller, New York University; Melvin B. Nimmer,
University of California; Elvin E. Overton, University of Ten-
nessee; Newton Pacht, Howard University; Julius Paul, Wayne
State University; Leo Pfeffer, Yeshiva University; Oval Phipps,
St. Louis University; Frank Pinner, Michigan State University;
Louis H. Pollak, Yale University; C. Herman Pritchett, Uni-
versity of Chicago; Paul O. Proehl, University of California;
Charles W. Quick, Wayne State University; Felix Rackow, West-
ern Reserve University; Norman Redlich, New York University;
Ralph S. Rice, University of California; Donald H. Riddle,
Rutgers University; Hugh Ross, Western Reserve University;
Stanley Rothman, Smith College; Paul H. Sanders, Vanderbilt
University; William F. Schulz, Jr., University of Pittsburgh;
Murray L. Schwartz, University of California; Austin W. Scott,
Jr., University of Colorado; H. Pierre Secher, Western Reserve
University; Robert Sedler, St. Louis University; J. David Singer,
University of Michigan; Hugh H. Smythe, Brooklyn College;
Frank J. Sorauf, University of Minnesota; Dale Story, Howard
University; Paul Tillett, Rutgers University; Arvo Van Alstyne,
University of California; Carl R. Vann, Wayne State University;
David H. Vernon, Albuquerque, N. Mex.; Jack B. Weinstein, Co-
lumbia University; Ruth G. Weintraub, Hunter College; Norman
Wengert, Wayne State University; Arthur M. Wilson, Dartmouth
College; Quincy Wright, University of Virginia.

Additional signers as of November 5, 1962:

Eric E. Bergsten, State University of Iowa; Donald E. Boles, Iowa
State University; Arthur E. Bonfield, State University of Iowa;
Willard L. Boyd, State University of Iowa; Inis L. Claude, Jr.,
University of Michigan; Herbert C. Cook, Iowa State University;
Charles W. Davidson, State University of Iowa; Clifford Davis,
State University of Iowa; Samuel M. Fahr, State University of
Iowa; Monroe H. Friedman, George Washington University;
Marshall Harris, State University of Iowa; N. William Hines;
State University of Iowa; Mason Ladd, State University of Iowa;
John R. Mashek, Iowa State University; Dean T. Massey, State
University of Iowa; Addison Mueller, University of California;
Harold Norris, Detroit College of Law; Jeffrey O'Connell, State
University of Iowa; Ross B. Talbot, Iowa State University;
Barbara J. Teters, Iowa State University; Allan D. Vestal, State
University of Iowa; Russell J. Weintraub, State University of
Iowa.

Hon. JAMES O. EASTLAND,

U.S. SENATE, COMMITTEE ON THE JUDICIARY, July 26, 1962.

Chairman, Senate Committee on the Judiciary,
Washington, D.C.

DEAR MR. CHAIRMAN: I will appreciate it very much if you will have the attached letter written to me on July 1, 1962, by Mr. H. Larry Ingle inserted in the record of the hearings upon the resolutions which are designed to modify the interpretation placed by the Supreme Court in Engel v. Vitale on the establishment of religion clause of the first amendment. I make this request pursuant to a promise made by me to Mr. Ingle.