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This is a possible solution but as a practical matter, I doubt that it can be done. The principal arguments against such action are (1) although this would hamstring the Supreme Court it would not stop lower courts from making the same decisions, and (2) it would not strike down the Everson decision and others already made.
There are also some who want to take no action to stop the Court in the hope that it will abandon the Everson philosophy when it is seen how unpopular it is. I can find nothing in the record of the present Court to indicate it is likely to change. As a matter of fact, the Everson philosophy is in perfect accord with the Court's social ideologies and its general trend toward socialism. I believe the Court went to great lengths to establish firmly the Everson philosophy for the sole purpose of using its language as a springboard for all future decisions on any cases involving religion.
There are those who say that Congress is concerned over what the Supreme Court did in the prayer cases because of pressure from religious fanatics and those who do not understand what the Court has done. This is a totally unfair statement. Few Americans would want Congress to be unconcerned over so grave an issue. It would be far easier, from a political point of view, for Members of Congress to ignore the controversy and take no part in it. Those of us who are concerned are reacting to only one pressure: our consciences. Evangelist Billy Graham spoke of his concern when he said: "What we have seen is only the beginning of what we face. If there is a movement by a small minority to remove the idea of God completely from our national life, I think it extremely dangerous." His Eminence Francis Cardinal Spellman has taken substantially the same position. I do not believe it can be argued that men like Billy Graham and His Eminence Francis Cardinal Spellman can be accused of reacting because of pressure. Certainly, I am not.
A group of us in the Congress feel that the Everson philosophy paves the way for total removal of God from all public life in which government at all levels has a part. We are searching for the most effective way possible to restore the first amendment to its previous meaning. There is no intent to weaken the amendment, only to strengthen it.
The seeds of godlessness were planted by the Everson philosophy. It has sprouted a poisonous vine, only one branch of which is the school-prayer case. In my opinion, the only solution is to uproot the vine (the Everson philosophy) and, by so doing, kill all the branches which will, sooner or later, choke out religion in every form as far as government at all levels is concerned.
The Supreme Court and some Members of Congress are counting on public apathy to kill this entire issue. They hope to confuse enough people into thinking that nothing has been done except to prohibit prescribed prayers in public schools. The public has not been told the true implications of the Everson philosophy.
I have taken an active part in this issue because, in my meditations, I have asked myself a number of questions. I return always to a single question, however; What is the will of God? And may I depart from my prepared statement at this point simply to comment that there are those who have criticized the U.S. Congress for trodding on forbidden
ground and attempting to interpret decisions of the Supreme Court, with particular emphasis on this question. And as I speak of what is God's will, I think it should be a first concern of the gentlemen of the cloth, the clergy, if you will, to be concerned with not what is legal in the eyes of the law or under the Constitution but to be concerned first of all with what is God's will. That is their true and chief purpose as they minister to their parishioners. It would be easier politically to avoid the issue but that would be cowardly and a sin of omission. Sins of omission are, in my mind, often greater than sins of commission.
If this issue is choked off and is allowed to die, I believe the battle is lost, and this Nation, with its priceless heritage of religious freedom under the first amendment will be launched on a sea of godlessness for an endless voyage into darkness.
That, Mr. Chairman, is my prepared statement. I began by saying that I am not an attorney. I say now that I do not even have an attorney on my staff. I have not had the assistance of any man in preparation of this statement. It is one that I feel rooted in my heart and one that I must make, a position I must stand by.
I thank you for your courtesy in hearing me this morning.
Senator BAYH. Congressman Waggonner, we certainly appreciate your taking time to testify. It is obvious from the content of your statement as well as the sincere method in which you delivered it that this issue is of great conscience to you.
I might ask you to take another look at the Everson case. As you well know, a court in rendering a decision has the dicta that accompanies the case as well as the specific findings. Ironic as it may seem, encompassing the words to which you referred in your statement about not assisting any religion or all religions, the impact of the Everson decision permitted the State of New Jersey to reimburse from tax funds Catholic families for the transportation of their children to school. It said that assistance could be provided as long as one did not get specifically in the area of
Congressman WAGGONNER. Mr. Chairman, you are exactly correct. Their finding their decision was in sharp contrast with the language of their decision. This is the reason that the groundwork I feel which was laid in the Everson case is so dangerous, and I feel this is the language that has been reverted back to as a springboard to remove religion from national life.
You are exactly correct. They did rule that the State of New Jersey, the State board of education in New Jersey, could reimburse the parents of Catholic school students for money spent in defraying the cost of travel to school with public money, but, Mr. Chairman, their finding was completely inconsistent, as you have so aptly pointed out, with the language of their decision, and herein lies the danger.
Senator BAYH. You see, to discuss what the Court said in the decision and some of the dicta, one must look at the actual issues involved and disregard their hypothetical projections.
Justice Black wrote both decisions, the Everson decision and 15 years later the Vitale decision, and in his footnote I am sure you recall what he said.
There is, of course, nothing in the decision reached here
This is Vitale
that is inconsistent with the facts that schoolchildren and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contains references to the Diety or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York had sponsored in this instance.
It seems to me he is the same man who wrote the Everson decision who 15 years later is writing that we recognize the existence of God and His name is not to be banned from the schoolroom.
Congressman WAGGONNER. I think what the chairman has aptly set forth here is the unreliability of the Court and who knows when they are going back to the Everson decision to hinge future decision on. If we could depend upon a Court of consistency we would have no concern, but I personally feel that we have long since passed the stage that anybody can predict what this Court will do.
Senator BAYH. Thank you very much, Congressman Waggonner. We appreciate your sharing your thoughts with us.
Congressman WAGGONNER. Thank you, Mr. Chairman.
Senator BAYH. Our next witness is Rev. C. Stanley Lowell, associate director of the Protestant and Other Americans United for Separation of Church and State.
Dr. Lowell, we are glad to have you with us this morning.
STATEMENT OF DR. C. STANLEY LOWELL, ASSOCIATE DIRECTOR, PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Dr. LOWELL. Thank you, Mr. Chairman. My name is Stanley Lowell. I am associate director of Protestants and Other Americans United for Separation of Church and State. This is an educational, nonprofit organization that for 20 years has been concerned in this area of church and state, having as its sole objective the defense of our American tradition in these matters to which we have given the general designation, the separation of church and state.
I should like to express my appreciation, Mr. Chairman, for these hearings, particularly because they have called attention to and they have silhouetted the first amendment. I think that the hearings conducted fairly as they have been with judicial calm have rendered the Nation a distinct service in calling attention to this very vital area of our freedom.
Any study conducted by the Congress in the area with which the first amendment is concerned should offer an occasion for the celebration of the amendment itself. We do well to recall that the first amendment, dealing with freedom of religion, is but one of 10 amendments which cover many of the basic rights of man. This year marks the 175th anniversary of the Bill of Rights and we appropriately mark the blessings of this immortal document.
The first of these amendments guarantees the free exercise of religion and this freedom our people and our churches have enjoyed for a century and a half. The virility of the religious enterprise in this country indicates that we have taken full advantage of this freedom.
Basic to the free exercise of religion is the freedom to pray. Indeed, this is the fundamental freedom which the first amendment in its present form patently bestows. The right of all our people to pray in their own way is guaranteed to them and government is forbidden to make any law prohibiting this. Congress can make no law-nor, as a result of the 14th amendment can any State or official body among us make a law, which prohibits the free exercise of religion. The right of our people to pray in their own way, as and when they wish, could only be withdrawn by legislation enabled as a result of an amendment to the Federal Constitution.
We should be very clear that no decision of the Supreme Court has destroyed or outlawed anyone's freedom to pray. All the Supreme Court sought to do was to prohibit government from requiring religious exercises in the public schools. Since the right of the people to pray has not been abridged by the Supreme Court or any other body, and could not be so abridged under the present constitutional provision, any proposed change which bears upon this provision should be subjected to the closest scrutiny by religious leaders.
As one studies the proposal before you to amend the Constitution, he is at once taken with the fact that, despite its negative phrasing, it clearly injects government into the business of religion. Piercing the negative phrasing to get at the positive meaning of the proposal, we might read it this way: "The authority administering any school, school system, educational institution, or every public building supported in whole or in part through the expenditure of public funds, shall have authority to provide for the voluntary participation by students or others in prayer." This is what the proposal says and this is what it means. It is an enabling provision. It would enable public officials to make arrangements for prayers. If the word "prayer" be defined broadly, as is done by many religious groups, then the insinuation of public officials into this area of religious exercises and religious worship would seem to be made possible should this amendment prevail. We question the wisdom of any such proposal.
What must be considered in connection with any law is not merely the law itself but the administrative latitude with which it can be effectuated. The law may be innocuous enough and may seek to serve a commendable purpose, but if it gives officials administrative latitude which may be abused, then it is a bad law. We have a good example of this, I would say, in the Elementary and Secondary Education Act passed by the Congress last year. The Congress attempted to avoid church-state entanglements in the drafting of this legislation, but it is now being administered in a manner which many allege does breach our constitutional separation of church and state. The administrative latitude that this proposed constitutional amendment would confer upon local officials in the matter of religion is enormous. Therein lies its danger to religious freedom.
In our estimate of this matter, prayer is basically of a private and personal nature and does not lend itself to government auspices. Prayer is too sacred an exercise for the state's management and manipulation. We believe that here is one area, above all, where government ought to keep out. The best thing that government can do for religion is to let it meticulously alone. James Madison beautifully
clarified this point in a message delivered in July 1813. I think the is significant in the light of some of the background and interpretations of the first amendment we heard a moment ago.
If the public homage of a people can ever be worthy the favorable regard of the Holy and Omniscient Being to whom it is addressed, it must be that in which those who join in it are guided only by their free choice, by the impulse of their hearts and the dictates of their consciences; and such a spectacle must be interesting to all Christian nations as proving that religion, that gift of Heaven for the good man, freed from all coercive edicts, from that unhallowed connection with the powers of this world which corrupts religion into an instrument or an usurper of the policy of the state, and making no appeal but to reason, to the heart, and to the conscience, can spread its benign influence everywhere and can attract to the divine altar those freewill offerings of humble supplication, thanksgiving, and praise which alone can be acceptable to Him whom no hypocrisy can deceive and no forced sacrifices propitiate.1
We believe that developments indicated as a result of this amendment would point toward an erosion of separation between church and state and a creeping encroachment of government into the realm of religion. The amendment should therefore be rejected by all who are concerned for freedom of religion and its independent status vis-a-vis the State.
A brief review of some of the developments which have occasioned a demand for such an amendment as this may be enlightening. It is true, Mr. Chairman, that our public schools had as their predecessors religious academies sponsored by churches. It is true that as the common schools superseded the religious academies, a number of sectarian emphases persisted in the later institutions. It is true, again, that these practices, notably Bible reading and prayers, were gradually eliminated and that their final elimination occurred following a series of decisions by the Supreme Court in the 1940's, 1950's, and 1960's.
It has been asserted that the elimination of these religious practices from the schools came about as a result of a plot to "drive God out of the schools" or to promote atheism or secularism among the youth. Now, there is no truth whatsoever in such observations.
The elimination of religious exercises from the schools came about as a result of entirely practical and pragmatic considerations. So long as the country was predominantly and even overwhelmingly Protestant, the vestiges of Protestant worship and teaching remained in the schools without challenge. But as large and important religious minorities began to rise within the population, objections were heard. In a series of lawsuits which extended from the 19th into the 20th century Roman Catholic plaintiff's sought the elimination of such Protestant practices in the schools on the ground that they violated their own religious convictions. In the 1940's, 1950's, and 1960's, Roman Catholic plaintiffs were replaced by Jews, Unitarians, humanists, and other minority groups who continued to challenge these surviving religious practices in the schools. They challenged them for exactly the same reason as the Catholics had done so: they wanted their children to be protected from religious indoctrination in a public institution which their children were required by law to attend.
The New York case of Engel v. Vitale in 1962 provided the final demonstration of the futility of any effort to work out a general form
1 Brant, Irving, "The Bill of Rights: Its Origins and Meaning," Indianapolis, BobbsMerrill, 1965, pp. 418-419.