The Catholic Lawyer

Volume 8 Number 4 Volume 8, Autumn 1962, Number 4 Article 4

The Prayer Case - First Amendment Revision

Lawrence X. Cusack

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE PRAYER CASE First Amendment Revisiont

LAWRENCE X. CUSACK*

IAM PRIVILEGED to appear before the Committee as a representative of the Roman Catholic Archdiocese of New York at the request of His Eminence, Francis Cardinal Spellman, Archbishop of New York, whose views are embodied in the following remarks. After careful study, I have come to the conclusion that the recent decision of the United States Supreme Court in Engel v. Vitale, declar- ing unconstitutional the New York Regents' Prayer, was a grave error in judicial judgment, a decision out of line with the conscience and religious heritage of the American people and one which foreshadows an ominous tendency to undermine cherished traditions of this nation. In my opinion, the error is too serious, the danger to our American institutions too immediate, to be left to the evolutionary process of corrective decisions by the Court itself. In my judgment, the indicated solution is an amendment of the Constitution. For reasons later stated, I respectfully submit that any such amendment should be directed to the underlying constitutional fallacy of the Court's decision-a misin- terpretation of the no establishment clause of the first amendment- rather than to the narrow issue of a voluntary, nondenominational prayer. As Archbishop of New York, Cardinal Spellman is directly and im- mediately concerned with the harmful effect of this decision upon the moral and spiritual welfare of the tens of thousands of Catholic chil- dren who attend public schools in the ten counties of the State of New York that comprise the Archdiocese of New York. Although the Arch- diocese maintains and administers a parochial school system, consist- ing of 423 elementary and high schools with more than 216,000 chil- dren in attendance, it is, nevertheless, estimated that there are well in excess of 100,000 Catholic children in attendance at public elementary and high schools within the Archdiocese. The concern of Cardinal

t Statement submitted to the United States Senate Committee on the Judiciary at the Hearings on the New York Regents' Prayer Case. * A.B., LL.B., Fordham University. 8 CATHOLIC LAWYER, AUTUMN 1962

Spellman springs also from the apprehen- has said: sion of a patriotic citizen as to the long- When the courts deal, as ours do, with range effects of the Court's decision upon great public questions, the only protection succeeding generations of our country's against unwise decisions, and even judicial children and upon the future general wel- usurpation, is careful scrutiny of their ac- fare of our nation. On the very day that tion and fearless comment upon it. the decision of the Court was announced, Only recently, the President of the Ameri- His Eminence publicly stated that he was can Bar Association reminded American "shocked and frightened" at a decision lawyers that: which, he said, "strikes at the very heart of the Godly tradition in which America's It is the inherent right and the highest children have for so long been raised." duty of the Bar to analyze, criticize, make I am convinced that the Supreme Court's recommendations, and work toward im- provement in both the rulings and the op- decision in the Regents' Prayer Case is eration of courts, from the lowest to the based upon an erroneous interpretation of highest level. our Constitution, but nothing I say is in- Its right flows inevitably from the law- tended either to undermine the Court's yer's status of citizenry, and it is under- status or to impugn the motives of the scored and emphasized by his professional Justices. As a representative of Cardinal standing and his devotion to juridical science. Spellman and as a member of the Bar, I have the greatest respect for the Supreme With regard to this very decision, the Su- Court as an institution. In taking issue preme Court has not been free from the with the Court, I am doing no more than criticism of many eminent constitutional what many Justices of the Court have lawyers, professors and judges of other themselves often done in their dissenting courts. The Chief Justice of one of our opinions and in their extra-judicial state- midwestern states has, for example, de- ments. The Court has never held itself out clared that by this decision the Supreme to be an infallible tribunal and, in fact, Court has played "recklessly with the Con- on many occasions has expressly or im- stitution of this country." pliedly acknowledged its own fallibility by In differing with the decision of the Su- reversing earlier decisions. Indeed, the need preme Court, I am by no means attacking for informed and constructive criticism of the principle of separation of Church and the work of the Court has been frequently State as set forth in the religious freedom stressed by responsible authorities. In clauses of the first amendment. The Catho- 1898, Mr. Justice Brewer stated: lics of this country not only respect that It is a mistake to suppose that the Su- principle and revere it as part of our Con- preme Court is either honored or helped stitution, but they are wholeheartedly in by being spoken of as beyond criticism. favor of it as one of the keystones of our On the contrary, the life and character of its justices should be the objects of con- liberties. Although individual Catholics may stant watchfulness by all, and its judg- differ as to the ultimate ramifications of the ments subject to the freest criticism. Court's action in declaring unconstitutional the New York Regents' Prayer, they do And the late Chief Justice Harlan F. Stone not differ in their respect for and adher- FIRST AMENDMENT REVISION ence to the principle of separation that the in the religious tenets and practices of other Court attempted to apply in rendering its denominations. Catholics would make the decision. Throughout the history of this same objection today to denominational country, spokesmen for the Catholic teaching or services in our public school Church have made it clear time and time system. But this is a far cry from the prac- again that American Catholics are irrevo- tice which the Supreme Court has con- cably dedicated to the constitutional prin- demned in the New York Regents' Prayer ciple of separation of Church and State, Case. There, school children were merely properly interpreted and properly applied. given an opportunity voluntarily to partici- Adherence to that principle was enunciated pate in the saying of a short, simple, non- in the early years of our nation by Arch- denominational declaration of dependence bishop John Carroll, the first Catholic Bis- upon God and request for His blessings. hop of our country. Since then, that ad- This is not denominational religious in- herence has been reaffirmed time after struction. On the contrary, the vast majority time. More than forty years ago, Cardinal of Catholics believe that such a practice in Gibbons wrote that: our public school system is no more than a recognition that our public school system No establishment of religion is being is not designed to make God a stranger in dreamed of here by anyone; but were it to be attempted, it would meet with united the classroom to those children who wish opposition from the Catholic people, to acknowledge Him, and that it is no part priests and prelates. of our national heritage to compel our public officials to turn their backs on the Essentially the same thought was reiterated Supreme Being who, since the days of our in 1948 by Archbishop McNicholas, Chair- Founding Fathers, has guided and watched man of the Administrative Board of the over the destiny of this nation. It is in that National Catholic Welfare Conference, connection and in that spirit that I voice who said: my criticism of the Court's decision. We deny absolutely and without any quali- My disagreement with the decision is fication that the Catholic Bishops of the that the Court has misread history and mis- United States are seeking a union of church conceived and misapplied a great consti- and state by any endeavors whatsoever, tutional principle. In attempting to safe- either proximate or remote. If tomorrow, Catholics constituted a majority in our guard a clause of the Constitution that was country, we would not seek a union of originally intended to prohibit Congress church and state. from creating, or aiding in the creation of, a state religion, the Court passed lightly In 1960, Archbishop Vagnozzi, Apostolic over its own observation that the prayer in Delegate of the Vatican to the United question seemed "relatively insignificant," States, made a public statement to substan- and proceeded to render a decision which, tially the same effect. in the light of American history and the It is a fact of American history that a motivating factor in the establishment of purposes underlying the first amendment, doctrinaire. In the Catholic parochial school system in this was unrealistic, extreme and country was objection to the indoctrina- short, the Court's proper concern with tion in public schools of Catholic children keeping the principle of separation invio- 8 CATHOLIC LAWYER, AUTUMN 1962 late led it to declare a theory of absolutism phrase "under God" in the Pledge of Alle- with regard to the relations between giance to our flag. In the light of these in- Church and State, so that, even if not in- terpretations, the Court's decision seems tended, the Court's decision may have the to forecast a drift toward a Godless so- practical effect of prohibiting even the mer- ciety, toward the enthronement of secular- est mention of God in the public school ism as the American religion. Our public classroom. This was carrying to the ex- schools are already being referred to in treme a constitutional principle which, rea- some quarters as our "secular school sys- sonably interpreted and applied, should be tem." The ultimate objective of a well- a doctrine on which all Americans of good- organized, well-financed minority, ready at will, whatever their faith, could agree. the most trifling excuse to provoke litiga- The alarming aspect of the Regents' tion, is to root out of American life all re- Prayer Case is not so much the particular ligious values. If they are successful, they point decided as what the decision por- will create an ideological vacuum which tends in terms of shaping our society. In will be filled by secularism. If this comes legal effect, the decision amounted to no to pass, it will threaten the stability of our more than a declaration that a particular nation for, as our first President said in prayer composed by a particular state body his Farewell Address: could not be officially sponsored for use in Of all the dispositions and habits which the public schools of a particular state. lead to political prosperity, religion and But, in practical effect, it banned all such morality are indispensable supports ... prayers, even though nondenominational Reason and experience both forbid us to and noncompulsory. As a result, the deci- expect that national morality can prevail sion has a significance that goes far beyond in exclusion of religious principle. It is substantially true that virtue or morality the legal issue involved in that case. On is a necessary spring of popular govern- the very day the Court's opinion was re- ment. The rule, indeed, extends with more leased, a leading figure in the fight against or less force to every species of free gov- the nondenominational prayer declared that ernment. Who, that is a sincere friend to the decision it, can look with indifference upon at- tempts to shake the foundation of the makes it clear that all religious practices fabric? in the public schools, such as Bible read- ing, prayer recitation and religious holi- Many students day observances, are unconstitutional. of the Supreme Court have observed that in interpreting our Con- Within a few days others, adopting the stitution the Court keeps attuned to the reasoning of the concurring opinion of Mr. temper of the times and to the manifest will Justice Douglas, were asserting that the and aspirations of the American public. Court's prohibition seems to apply equally This leaves room for hope that, if left to to prayers said at the opening of our courts its own devices, the Supreme Court would and at the daily convening of our legisla- in the course of time find opportunity to tures. It was soon announced by self- reshape its interpretation of the no estab- styled protectors of civil liberties that, on lishment clause so as to bring it once again the strength of the Court's decision, an at- into line with the popular conception that tack would be made on the use of the has prevailed since the early days of this FIRST AMENDMENT REVISION nation. But for the Congress to stand aside Fathers themselves thought they had made and await that possibility would be to leave clear, that our Constitution favors govern- to chance and to the future predilections ment cooperation with religion so long as of a small group of men a matter that is such cooperation is devoid of favored treat- presently vital to our way of life. The eyes ment to any one religion or denomination. of the world are upon this country, looking Such an amendment would do no more to us now for the kind of inspired leader- than restore to the first amendment the in- ship that will preserve our world from the terpretation which the Supreme Court it- aggressions of an alien society that has self gave it in 1952 in Zorach v. Clauson, long since drained religion out of its own the New York released time case, when Godless way of life. I submit that the one Mr. Justice Douglas, whose viewpoint now sure, effective and early solution is an seems so extreme, had himself said: amendment to our Constitution which We are a religious people whose insti- would remedy the result of the Regents' tutions presuppose a Supreme Being.... Prayer Case by correcting the Court's mis- When the state encourages religious in- reading of the no establishment clause. struction or cooperates with religious au- In my opinion, any such amendment thorities by adjusting the schedule of pub- should not be directed merely at the Court's lic events to sectarian needs, it follows the best of our traditions. For then it holding that the State of New York can- respects the religious nature of our people not constitutionally compose a nondenomi- and accommodates the public service to national prayer for use in the public schools their spiritual needs. of that State. It should, rather, be directed at the malady that is at the core of the I respectfully suggest that this Commit- decision-the misreading of the historical tee propose a constitutional amendment intent underlying the adoption of the re- which would restore the original concept ligious protection clauses of the first amend- of the no establishment clause which was, ment. The root of the Court's error was as the learned Thomas Cooley wrote just that it lost sight of the fact that those who before the turn of this century, to prohibit drafted the clauses intended not to prefer "the setting up or recognition of a state irreligion and Godlessness over religion, church, or at least the conferring upon one but to make certain that government, while church of special favors and advantages cooperating with all religions, did not es- which are denied to others." An amend- tablish a state religion or prefer any one re- ment framed along these lines would re- ligion over others. I believe, then, that any vitalize the general sentiment that underlay constitutional amendment should go be- the adoption of the first amendment. That yond a mere declaration that the voluntary sentiment, as Joseph Story, Supreme Court recitation of nondenominational prayer is Justice and Professor of Law, said more constitutionally permissible, thereby avoid- than 125 years ago, was that religion ing the serious risk that such a declaration "ought to receive encouragement from the would be misinterpreted to prohibit by im- state, so far as it was not incompatible plication traditional practices not specifi- with private rights of conscience, and the cally authorized. The amendment should rather make clear what our Founding (Continued on page 343) FIRST AMENDMENT REVISION

AMENDMENT REVISION hibiting the free exercise of religion ... (Continued) An amendment such as this would, in my opinion, strike at the heart of the doc- freedom of religious worship." In this way trinaire and fallacious concept that there the American people can forever protect should be an absolute separation between the no establishment clause from the doc- Church and State. Such conceptual abso- trinaire absolutism of the secularists and lutism is impractical and unrealistic and if restore a proper balance between that permitted to become imbedded in the first clause and the free-exercise-of-religion amendment could lead in the future only clause of the first amendment. One way to to other decisions that would be offensive accomplish this would be to restate the to the religious traditions of the American first amendment so that the religious pro- people and potentially destructive to Amer- tection clauses would read: ican institutions. That concludes my statement. On be- Congress shall make no law respecting the establishment of a state religion or, half of His Eminence, Cardinal Spelman, in encouraging religion, the preferment I thank this Committee for the opportunity of any religion or denomination, or pro- to present these views.