Sivut kuvina

love for our country by reciting historical documents such as the Declaration of Independence which contains references to the Deity or by singing officially espoused anthems which include the composer's profession of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God."

As I said elsewhere:

"This, and only this, is certainly to be derived from the Engel and Schempp cases. The States may not prescribe the conduct of religious ceremonies in their public schools. To read more into the opinions, as the Court's detractors attempt to do, to see the opinions as destructive of the religious life in the United States, is so patently absurd as to deserve to be ignored. The difficulty is that, as Hitler so adequately demonstrated, the "big lie" has real utility as a political technique. And so, if it is said often enough that the Court is seeking, through its judicial opinions to destroy religion, or establish the "religion of secularism," the technique may be used to sap the Court of its strength. For it has been clear at least since Tocqueville, that the court's power is totally dependent upon the esteem in which it is held by the public ***."

If I may digress for a moment I would like to say that was written before any suggested amendments which this committee is now considering.

It is not that I am an unqualified admirer of the work of the Supreme Court. Indeed, I spend most of my professional life in what I hope is constructive criticism of the Court's activities. But I am, nevertheless, certain that it remains the essential institution of American government to prevent a benev olent democracy from turning into the tyranny of the majority.

I would repeat that the essential premises on which the proposed amendments are based, that the Court's decisions were revolutionary and of broad implication, are essentially false.

I would recommend against the passage of the amendments for another reason. That is that they have not been framed, and possibly cannot be framed, to effectuate the stated purposes of their proponents. They are both broader and narrower than the alleged evils that they seek to cure.

First, most of the proposed amendments speak in terms of sanctioning Statesponsored prayers only if participation by the school-children for whom they were prescribed be voluntary. A reading of the Court's opinions leaves clear the implication that merely excusing those who are prepared to announce their unwillingness to participate does not turn the religious exercise into a voluntary one. Thus, in Engel v. Vitale, the Court said:

"The establishment clause, unlike the free exercise clause, does not depend upon any showing of direct government compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige, and financial support of government is placed behind a particular religious belief, the direct coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”

It would be easy to show from the opinions in Schempp, including Mr. Justice Stewart's dissent, and the opinions in the earlier cases of McCollum and Zorach, that grants of exemption are probably not sufficient to establish the voluntary nature of the religious ceremonies conducted in the schools. Nor, as my earlier quotation from the Illinois Supreme Court demonstrates, is this notion of implicit coercion a concept peculiar to the U.S. Supreme Court.

Moreover, in attempting to validate the short opening religious ceremonies that were condemned in the recent Court opinions, the proposed amendments would license the States to engage in religious indoctrination of far greater scope. Perhaps because a description of the kinds of exercises that the proponents would sanction are to elusive for words appropriate to a constitutional amendment, they have utilized words that do not contain any limitation on the religious exercises that may be indulged by governments, whether they be local governments, State governments, or the National Government. I doubt that the sponsors of these amendments intend so unlimited a license. And yet they contain no limitations, except the terms of "voluntary" nature of the exercise. on the license they are granting.

The third and last point I should like to make to this committee is that it should not seek a formula for returning God to the public schools that in effect seeks to permit the public educational institutions to utilize a formula that is acceptable to all religious faiths. Such a formula is far more destructive of

religious freedom than any opinion the Supreme Court has announced or is likely to announce. As the American Council on Education noted some time ago:

"The notion of a common core suggests a watering down of the essential faiths to the point where common essentials appear. This might easily lead to a new sect, a public school sect, which would take its place alongside the existing faiths and compete with them."

More recently, Father Gustave Weigel suggested a similar conclusion: "The moral code held by each separate religious community can reductively be unified, but the consistent particular believer wants no such reduction." And the official magazine of the United Presbyterian Church has reached the same conclusion:

"If you have 'faith in general,' you have no faith to speak of. Faith has to be 'something in particular.' A nondenominational prayer is doomed to be limited and circumscribed. If prayer starts soaring, it starts to be controver

sial, which is the one thing a nondenominational prayer dares not to be."

I conclude without reminding you in detail of the tragic history of conflicts and wars and persecutions that gave rise to the unique American notion codified in the religious clauses of the first amendment. My colleagues, Professor Littell and Professor Marty, have expressed to you far better than I could the reasons why history and commonsense dictate that these clauses remain unimpaired by amendment. I would remind you only of what the Court itself said in deciding the cases that have given rise to the current hearings. Mr. Justice Clark, speaking for the Court in the Schemp case, concluded his opinion thus:

"The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church, and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between the man and religion, the state is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the first amendment."

Mr. Justice Black in the Vitale case put the matter more succinctly:

"It is neither sacreligious 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 guidance."

I sincerely hope that this committee will recommend against the passage of any of these proposed amendments and adhere to the proposition that religion is none of the Government's business.

The CHAIRMAN. Mr. Libonati.

Mr. LIBONATI. I like your statement that if you have "faith in general" you have no faith to speak of.

Mr. KURLAND. I would like to take credit for it, Mr. Libonati, but it's not mine.

Mr. LIBONATI. That is the key to this whole question in view of the clamor that prayers would be a benefit to the child. Would a prayer that is formulated by nonreligious persons who represent no faith or a single faith be the type of prayer that could be accepted, or if a group of persons sitting together who are not persons who are trained in theology draw up a prayer, it would be a mere nothing. I think that is the crux of your whole statement here, that regardless of the dissertation on the Court's decisions and so forth, we have not had anyone yet place before us a statement so concisely direct to the key of what they are trying to establish here; namely, influencing children in accepting God as a deity, in that one succinct statement that you have made in this paper.

In other words, the end that they seek in this legislation is just that. The influencing of a child's mind to accept the Deity that we all venerate who are Christians and therefore this being a Christian nation that they are entitled to this. Yet by the very nature of the formulation of a prayer they missed their goal regardless of the constitutional questions which are very great and involved. I congratulate you on your presentation.

Mr. KURLAND. Thank you, Mr. Libonati.

The CHAIRMAN. Mr. Corman.

Mr. CORMAN. Professor, there has been some sentiment expressed that what we really want to do is to phrase an amendment which would clear up confusion but I have had a feeling no matter how articulate we may be, whatever would become a part of the Constitution would necessarily be subjected to judicial in67-815-6641

terpretation with a great number of sets of facts so that we really could not hope to cut off litigation just by changing the phraseology of the amendment. Mr. KURLAND. I certainly would agree with you, Mr. Corman.

Mr. CORMAN. I think further, in view of the fact that we have a pretty fair body of law now interpreting the first amendment, if we change it in any way we may very well open up a number of other areas for reinterpretation.

The proponents have varied views on section 2 of the Becker amendment. House Joint Resolution 693 is the Becker amendment.

Mr. KURLAND. I don't have it before me.

Mr. CORMAN. We have had some discussions as to whether or not this would permit a religious test as a condition of holding public office or as a condition for granting of particular governmental privileges such as drivers' licenses and so forth. Have you given any thought with respect to section 2?

Mr. KURLAND. My problem is that I can't see what the limitations are in section 2. I know that section 1 is aimed directly at the School Prayer case. Section 2 is aimed at the large series of suggested derivations from the School Prayer case which are in the realm of the imaginary. I suggested in my statement that I think this could be construed to leave the States, or the National Government, pretty well free to engage in any such religious activity that they would see fit.

As you suggested earlier, Mr. Corman, this section if it did become an amendment to the Constitution would still be subject to construction by the Supreme Court.

Mr. CORMAN. As a final question, we have had a lot of discussion about the fact that we really do not want to permit the Federal Government to get into this business of directing the course of prayers. We do dislike to let the schoolteachers or the school boards back in this business. But as I understand it, the same thing which prevents the teachers now from doing it is the same thing which prevents every level of government from undertaking this activity. So if you remove the prayer at all, at least if you remove it in general terms in here. then you remove the barrier from any level of government. So you are saying that whatever the schoolteacher can do you are saying the Congress and the States can do.

Mr. KURLAND. Under all the proposed amendments I have seen that is true, yes Mr. CORMAN. Thank you very much for your statement.

The CHAIRMAN. Mr. Edwards.

Mr. EDWARDS. I have one question, Mr. Chairman.

Professor Kurland, I note with interest on page 5 you mention de Tocqueville and add

"I am, nevertheless, certain that it remains the essential institution of American Government to prevent a benevolent democracy from turning into the tyranny of the majority."

I would point out that in 1831 de Tocqueville traveled through America and wrote his still famous book, "Democracy in America." As you know, his analysis was startingly prophetic. He predicted the Civil War, the emergence of the United States and Russia as the two leading world powers, one democratic, the other authoritarian.

De Tocqueville believed that there was a danger of the tyranny of the majority under conditions of political equality. He saw even then a general political apathy that did not redress the breaches of law by the majority.

The further danger of apathy, caused by the preoccupation of the people in practical pursuits-the building of houses, the worship of wealth, sports, and commercial success-could come to dominate in matters of opinion and taste. to the eventual elimination of all originality on the grounds that it was eccentric. Do you have in mind the point of view that de Tocqueville had?

Mr. KURLAND. Yes. This is a common concept of 19th century political theory that you have to worry about the impetuosity of the democracy. Each of the other branches of the Government is directly subject to the control of the ma jority. Generally speaking, that majority will have its way eventually. The court is a brake in effect, requiring a majority to take the second look from time to time before it does impose its will on a minority. It is the Tocqueville theory as it was, I think, of many of the 19th century political theorists. Mr. EDWARDS. Thank you.

The CHAIRMAN. Mr. McCulloch.

Mr. McCULLOCH. I would like to ask Dr. Kurland if he would be opposed to the use of public school facilities, either before the regular commencement of school or after the end of the regular school hours, for religious instruction.

Mr. KURLAND. If you ask would I be opposed, the answer is certainly not. I think quite clearly it would not be unconstitutional so long as the activities were voluntary.

Mr. MCCULLOCH. Yes; I should have included that in my question.

Mr. KURLAND. I would go further. I say that the public school facilities if they are made available for other activties constitutionally must also be made available on a nondiscriminatory basis for those who would like to use them for religious purposes.

Mr. McCULLOCH. And you are of the opinion that would do no violence to article I of the Bill of Rights?

Mr. KURLAND. That is clearly my opinion, sir.

The CHAIRMAN. Mr. Johnson.

Mr. JOHNSON. You talked about the 19th-century view. I suggest that it was also the 18th-century view expressed by James Madison on the floor of the House at the time when he introduced the Bill of Rights. Do you recall Madison saying "the independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be bulwark against every assumption of power in the legislative or executive"?

Mr. KURLAND. Mr. Johnson, you make me older than I am. I recall reading that. Mr. JOHNSON. In that same speech, didn't Madison also warn against the tyranny of majorities-what he called "the abuse of the community body of the people operating by the majority against the minority"?

in the

Mr. KURLAND. That is true. I think when you talk about the 19th-century concept it was the concept of the people who wrote the Constitution as well and derived from 18th-century English writers. I hope it is also a 20th-century concept.

The CHAIRMAN. Mr. Corman.

Mr. CORMAN. Professor, whatever this line is that set the bounds to what public school authorities can do, would it not be safe to say under any set of circumstances that if the activity is religious worship and devotion and if it is done under the authority of the schoolteacher, that then they are in violation of the constitutional prohibition?

Mr. KURLAND. I answer again, yes; any religious ceremony done under the authorization of a governmental authority would be a violation.

Mr. CORMAN. For instance, we could distinguish a factual situation where a schoolteacher comes into the room to maintain order and a situation where the room itself is permitted to be utilized by the students without the presence of the teacher.

Mr. KURLAND. Quite clearly.

Mr. CORMAN. Then another problem arises when we get into the business of what constitutes voluntary; when you have a whole group of children all voluntarily saying the same words at the same time with the teacher in the room maintaining order, it seems to me that factually you are getting into the area that is prohibited.

Mr. KURLAND. I think there is a range. We have to take into consideration there might be a different answer on the question of what is voluntary at the grammar school level or where the pressure to conform is fairly great and what is voluntary at the university level where, I take it, there is a great deal of individual freedom. So you may get a difference as to whether prayer ceremonies offered in the grammar school are voluntary simply because you excuse those who do not desire to attend as distinguished from the answer you would get as to whether prayer ceremonies of the voluntary nature of the same sort in a university are involuntary.

The CHAIRMAN. By contrast, with its able coverage of these hearings, the press may have failed to report the decision in the Engel case with sufficient accuracy, as Professor Kurland has suggested. I insert in the record at this point a letter to the chairman from Prof. Chester A. Newland, of North Texas State University, together with excerpts from an article by Professor Newland entitled "Press Coverage of the U.S. Supreme Court."


Denton, Tex., April 23, 1964.


Chairman, House Judiciary Committee,
House Office Building, Washington, D.C.

DEAR MR. CONGRESSMAN CELLER: Because of the hearings before the House Judiciary Committee on proposed amendments designed to counteract the Supreme Court's decision of June 1962, Engel v. Vitale, I am sending to you a

couple of reprints of an article related to the problem. The information in this article on press coverage of the Supreme Court may help to explain some of the massive misunderstanding which exists on this subject.

As a result of extensive study of press coverage of the prayer opinion, I am convinced that much of the criticism of the Court's decision is due to misunderstanding.

As you know, the majority opinion by Mr. Justice Black is quite consistent with our constitutional tradition. Any modification of the first amendment because of misunderstanding either of the Court's majority opinion or of our first amendment freedoms would tragically alter our system of limited government.

For these reasons, I am particularly pleased that you will be the chairman of the committee where hearings will be held. It is essential that our system not be altered as a result of misinformation.

If I may be of any assistance in providing any additional information on this subject, I shall be pleased to attempt to do so.

Respectfully yours,



Whereas Senator Everett M. Dirksen and others have proposed, in Senate Joint Resolution 148, an amendment to the United States Constitution "to permit voluntary participation in prayer in public schools": now, therefore, be it Resolved, That the Common Council of the City of Lafayette, Indiana support this proposal.

Adopted and passed by the Common Council of the City of Lafayette, Indiana, this 11th day of July, 1966.

Presiding Officer.

Presented by me to the Mayor of the City of Lafayette, Indiana, for his ap proval and signature this 12th day of July, 1966.


City Clerk.

Approved and signed by the Mayor of the City of Lafayette, Indiana this 12th day of July, 1966. DONALD W. BLUE,




My name is John Wesley Lord. As a Bishop of The Methodist Church, residing in the Washington area, I am grateful for the opportunity to offer this testimony in opposition to S.J. Res. 148, "Proposing an amendment to the Constitution of the United States to permit voluntary participation in prayer in public schools," introduced on March 22, 1966, by Senator Dirksen and other co-sponsors. As a former teacher and principal in the public schools of New Jersey, Pompton Lakes and Wayne Public School #6, and therefore cognizant with public school teaching and administration; I urge nonsupport of this Res. 148 by the members of this subcommittee. My conviction is that Res. 148 does no good and may do real harm if adopted. Indeed, in the long run of history and experience, it may well violate and destroy the good that Senator Dirksen seeks to conserve. He states that his proposal was designed to eliminate the fears held by many that the "profound legalisms of the courts . . . carried to a logical conclusion" might drive all vestiges of religion and God from our national lives. Let me respectfully suggest to the Senator that God and mature religion need no defense and that the first object of condemnation of mature religion is "bad" religion, which is a totally different thing from irreligion, and can be a very much worse thing. It is a small thing to say Thou are God, if you don't know the meaning of the thou. The very amendment being proposed by the Senator may have the effect of strengthening "bad religion" within our nation and may hasten the day which the Senator, and those who dumped 52,000 letters of protest on his desk a few weeks ago, fear. As a churchman, I fear "bad religion", rather more than I fear the absence of religion. It is my deeply held conviction as a churchman, that too often the exploitation of "religions

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