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ly, and profound Senator from North Carolina, your home State, Senator East, who I think feels the same way I do on this subject.

Senator East, if you will take charge of the hearing, I would appreciate it.

(Senator East assumed the Chair.)

Senator East. Thank you, Mr. Chairman. Congressman, I wish to welcome you this morning. It's always an honor to have a distinguished colleague from the State of North Carolina here with us, and we appreciate your interest in the subject and contribution thereto.

Before I turn to a couple of questions, I wanted to ask you about your proposal here. I think one thing that needs to be clarified in this discussion--and your introductory comments brought it to mind-was what the purpose and intent of the first amendment was. The purpose and intent, I think the record is clear and categorical on this, was to prevent the central National Government from establishing a national church. It says “Congress shall make no law ,” it doesn't say “Congress and the State and local government

So what the framers had in mind-and you were quoting some of the framers—was, to put it concisely, to leave to States and local government a monopoly on handling this issue. It has only been in the 20th century, beginning in 1925, generally with the Bill of Rights, and then 1940 in the Cantwell case, that the Supreme Court has moved beyond the intention of the framers and attempted to apply the first amendment to State and local government.

Again, I think in all this discussion it is imperative to keep in mind, since we all are fond in the American system of quoting the framers, what they had in mind when they put this clause in, that we shall not establish a national religion-Congress shall not do that. And I don't know of anybody in America today that is questioning that proposition.

It is interesting to note that both at the time of the founding when the Bill of Rights was added and on into the 19th century, it was a very common practice for States to have established churches-we had one in North Carolina at the time, the Anglican Church. Other churches were allowed to exist, but the Anglican Church was the established church. There were States like Rhode Island, which had no established church; and States like Massachusetts, which had one church, and where other churches were clearly discouraged. So you had great variety in the Thirteen Colonies and ultimately in the Thirteen Original States.

But my point is that there is a misconception among many people on this issue, believing as they do that some way or the other the framers intended the first amendment to apply to State and local government. They did not. That idea was spun out of whole cloth by the Supreme Court in our time.

Now, as to the Engel v. Vitale case, the 1962 case that, you are rightly noting, is the pivotal case that brings this subject before the House, you are correct, that the State of New York had a State composed prayer, a very innocuous prayer, incidentally that provided simply: “Almighty God, we acknowledge our dependence upon Thee and we begThy blessings upon us, our parents, our teachers, and our country.” It was a very innocuous prayer in the sense that it would not be offensive to any theist, Catholic, Protestant, or Jew; it could conceivably be offensive, of course, to atheists and agnostics.

It is true that the board of regents of the State of New York did write that prayer, that it was a State prayer that the Supreme Court was dealing with in Engel v. Vitale, and that they ruled it unconstitutional. And I would agree with you that in the holding of Engel v. Vitale-they didn't preclude the possibility of voluntary prayer.

The problem we have had since then, though, is what I would call the chilling effect, in which often State and local officials do in fact think that the Court prohibited voluntary prayer. And it seems to me, in your resolution, you would allow only silent meditation, which would by implication mean that spoken prayer is some way or other prohibited, which is interesting, I find, because you have already indicated you don't think voluntary prayer, spoken voluntary prayer, is ruled out by current Supreme Court interpretations of the first amendment. But yet your resolution, would it not, would seem to imply that the only thing permissible would be meditation--no spoken prayer. In short, Congress would be going beyond Engel v. Vitale. Obviously, you are not in favor of compulsory prayer, and few people are—but on the voluntary prayer end of it, you would confine it strictly to silence and meditation, is that correct?

Mr. Neal. Well, Senator, the intent of the resolution would be that the extension of the State, the local school system, could establish periods of silence, but not establish a particular prayer. It does not speak to the question of students voluntarily praying in a classroom or on the playing field, or in some other location. What it attempts to do is to make clear that, as Senator Ervin said, the State cannot require religious exercises and cannot write the prayer. And I referred to the chilling effect that has concerned you and that has concerned me. I think that what has happened because of that decision is that school boards are leery of doing anything. What I think it is clear that schools could do, under the first amendment, and under that ruling, that Supreme Court ruling, is to provide for silence. The great difficulty comes if they go beyond that.

I don't think that it ought to be up to the school system as to how students fill these periods of silence. I think that should be left to the parents and the other religious teachers of the child. If the child wants to pray during that period of time, or meditate or contemplate or introspect or think or whatever-my point is that it seems to me perfectly within the spirit of the first amendment of the Constitution, and consistent with the Supreme Court ruling, that the school system set aside periods of silence. If the school itself goes beyond that, in trying to write a prayer or establish a prayer, I think that is where we encounter the danger.

Senator East. More precisely, though, your resolution says that the Constitution of the United States does not preclude periods of silence to be used solely at the discretion of the individual student in public schools, for quiet and private prayer, meditation, contemplation, or introspection, even if these moments are supervised by a school official.

All of that-maybe I make too much of your language here, and I will have to move on because time is running short, but it strikes me, just as an initial thought on your resolution, that it would preclude anything of a spoken nature. And that goes beyond Engel v. Vitale, which certainly did not, as you have already indicated, preclude spoken voluntary prayer. All your resolution provides for is unspoken voluntary meditation. So some way or other we lose the idea that you could have spoken voluntary prayer. I don't wish to belabor the point too much, but you say you are trying to clarify Engel v. Vitale. I suggest you go further than Engel v. Vitale.

Engel v. Vitale did not rule out voluntary spoken prayer; your resolution omits mention of spoken prayer and confines the constitutional protection to meditation, contemplation, introspection, and periods of silence.

Mr. NEAL. Prayer-prayer is mentioned very specifically in the resolution.

What I am trying to say-let me see what I can do to clarify my intent. It is certainly not the intent to go beyond. What I am trying to deal with is that chilling effect that you referred to, which has resulted in local school boards thinking that voluntary prayer is not allowable. That has been the problem, I think, and that is what I am trying, by this resolution, to help resolve. I am trying to address what the school system can do, what the local school board can be required to do. What it says is that they can provide these periods of silence; it doesn't say-as I am concerned that the constitutional amendment that is proposed and that you are considering might say—that the local school boards can somehow write a prayer that will then be the prayer used by the students, and then in effect forced on students; that some particular arm of the Government will be prescribing a particular prayer. I am not addressing what an individual student or group of students can do. Certainly I would find it offensive if individual students couldn't get together and pray, or if an individual student couldn't pray verbally-I guess there would be a problem with that, if it was disrupting the classroom or something. But what I am trying to address is the question of what the school can do, and my feeling is that the schools, though certainly prohibited from writing and enforcing prayers, certainly could set aside periods of silence.

Senator East. I don't think that is the issue, though, Congressman. I think the issue is this question of clarifying with constitutional authority that any voluntary prayer is not precluded in the classrooms of the United States.

Would you accept a change in the language of your resolution, simply using the language of the proposed amendment here? Your resolution would simply state that it is the sense of the Congress of the United States that nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. That would be a direct use of the language of the amendment in your resolution.

I find your language vague enough that it might preclude the idea of spoken voluntary prayer, and what we are trying to do through the amendment is clarify, not further confuse, an area that is already horribly muddled.

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Mr. NEAL. It may be that the substance of your approach is better than this. May I ask you a question? Would you argue that the substance of your amendment, the language of your amendment, would be constitutional now, or do you think that an amendment to the Constitution is required? I think I would argue that probably as long as the State doesn't impose the prayer and doesn't write the prayer and doesn't lead the prayer, if it's truly voluntary, that what you suggest would be allowable now. And if that is the case, then I would say we don't need a constitutional amendment; we could pass a joint resolution or a concurrent resolution of the Congress and clear up this situation.

Senator East. I would like to point out this chilling effect, though, that just this past week the Federal district court issued an injunction against the Alabama prayer law, which permitted voluntary prayer. I am submitting that not only has Engel v. Vitale had a chilling effect on local authorities who don't understand constitutional law; now you have lower Federal district courts involved in this area as well. And it seems an appropriate time to begin to resist this tide of doing what I think is totally contrary to the first amendment, namely, establishing State-enforced secularism which would be tantamount to establishment of a national religion. Otherwise we will have come full circle, establishing State-enforced secularism, a religion, which, like other religions, is a way of looking at the nature of man, and of determining whence we have come and whither we go.

I think the discussion has been useful to this point-we have essentially been focusing on what would be the nature of the language. I guess my concern with your resolution is that it is vague and imprecise; it might have the right effect, but you could consider possibly using the language of the amendment. Then we would be agreed on what we are trying to accomplish. We move on to the next consideration which is: what is the proper vehicle for accomplishing our end of making it clear that voluntary prayer is going to be allowed in the classrooms of the United States.

If I might, because I know your time is precious, too-if I might turn to this question of the proper vehicle for accomplishing what perhaps we may be agreed upon is the common end. I would submit we have basically three routes to achieve this end: One, a sense-of-the-Congress resolution which you have proposed, which frankly I would look upon as being primarily cosmetic, because it couldn't speak with any constitutional authority. Certainly a senseof-the-Senate-and-House resolution would have no force of law since it is simply an expression of our opinion. Such a resolution would really be meaningless, because if the Constitution says what the court has said it does, our opinion on the matter is purely gratuitous and would have no legal impact. Taking this approach, I would submit, might tend to further confuse the problem, indicating that we have done something authoritative and definitive when in fact we have done nothing of the sort, except to use a little cosmetic or two on it. A second route would be a statutory withdrawal from the Supreme Court of its jurisdiction to deal with voluntary school prayer. Now, clearly we have the power under article 3 of the Constitution to remove jurisdiction-Senator Ervin has backed that up very strongly. Whether we choose to exercise it or not, of

course, is open to debate as it is a matter of prudence and judgment, but certainly if we withdrew the jurisdiction of the courts, like the Federal district court in Alabama, to interfere in matters of this sort, that law would have teeth in it. It wouldn't be cosmetic, it would have substance.

And then there exists a third route, passing, finally, a constitutional amendment, a route which the Senate Judiciary Committee is considering, and which is the issue before the House.

I think the latter two approaches have some merit and substance to them: withdraw court jurisdiction or, alternatively, pass a constitutional amendment clearly establishing, categorically, that the voluntary prayer is not precluded.

But as I see it, even if we could agree-I would be interested in your response to this point-even if we could agree upon the language that we wanted in your resolution, actually it has no force of law, does it?

Mr. NEAL. Well, I think it goes back-you probably answered and I didn't hear it clearly-to my question concerning your opinion as to whether or not what is provided for in the language of your constitutional amendment would be constitutional now. Now, I am certainly not a constitutional scholar. It does appear to me, though, that what you are suggesting and what I am suggesting in this resolution might very well both be constitutional now, and that to deal with this chilling effect that we both referred to, that a senseof-the-Congress resolution, a concurrent resolution, even though you are quite correct, it doesn't have the force of law, would serve the purpose of clearing up this misunderstanding that I believe exists.

So I think much of it would depend on whether or not you, and in fact the courts, believe what you have proposed is constitutional now. I think it probably would be constitutional now, and so a constitutional amendment would not be necessary.

I don't think we ought to lightly amend the Constitution.

Senator East. Well, that is a separate proposition. One doesn't lightly amend the Constitution, but you asked me if our constitutional amendment would be constitutional-by definition constitutional amendments, if enacted, are constitutional.

Mr. NEAL. My question is, Would what you suggest in your amendment be constitutional now?

Senator East. Well, it would be constitutional if two-thirds of the Members of the Congress approve it and three-quarters of the States-

Mr. NEAL. No, my question is, Isn't what you suggest in that constitutional amendment in fact allowable now without passing that amendment?

Senator East. Well, we have already indicated that because of the chilling effect it is not clear to many what is constitutional, No. 1; two, we notice already lower Federal district courts are further continuing to crowd into this area, further continuing to blot out any possible reference in schools to religious practice, belief, or activity. I submit personally-I am not suggesting I speak for others-I think we are running the risk here in America today in terms of Supreme Court decisions and certain lower Federal court decisions of ironically and paradoxically going full circle with the

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