the dismissal on the somewhat narrow ground that the Permanent
Subcommittee on Investigations did not have the authority to venture
down the path along which its chairman had led it. This, they reasoned,
made the defendant’s First Amendment objections moot. _Ad quod non fuit
responsum._
Williams made no effort to ask the Supreme Court to review the adverse
ruling, and, on September 13th, a consent decree was entered, ending
the case against Dr. Lamont. Just ten days short of three years
since he had refused to answer McCarthy’s twenty-three questions,
the taciturn witness was home free. At long last, the rampage was
officially over. As the _Hartford Times_ editorialized, “It is all
couched in quiet judicial language, of course, but what it really says
is that Senator McCarthy and the Committee were asking questions about
things that were none of their business.”
When it became clear that the Government had no intention of carrying
the case any further, Lamont told the press that “I am very glad
that my court battle has resulted in hammering another nail into the
political coffin of Senator McCarthy.” But the Lamont case had little
to do with what Richard H. Rovere has referred to as the “interior
collapse” which had afflicted Timothy and Bridget McCarthy’s fifth
child after the Army hearings. For the last two and a half years of his
life, he was back where he had been before the Wheeling revelations, a
dispirited jackstraw who began to spend more time in the hospital than
he did on the floor of the Senate.
On April 28, 1957, he entered the Naval Medical Center at Bethesda,
Maryland, with what his wife described as a “knee injury.” Later,
his condition was diagnosed by the Navy doctors as “peripheral
neuritis.” At 6:02 on the evening of May 2nd, he died of “acute
hepatic infection,” which his enemies intimated had been caused by an
overabundance of bourbon. After a funeral in the Senate chamber, he
was flown back home to Appleton where he was buried in the cemetery of
St. Mary’s Church, a rather pretty spot overlooking the meandering Fox
River. The golden years were over.
But if Lamont, as an individual, had no more to do with McCarthy’s
overnight submergence than did Annie Lee Moss, Irving Peress, Ralph
Zwicker, Owen Lattimore, and the others who had to endure his bad
manners, churlishness and downright lunacy, he was very much a part
of the cumulative evidence against the grand inquisitor. Too many
scalps too soon might have been Indian Charlie’s considered verdict.
In the last analysis, it was probably the conservatives who defeated
McCarthy, but it was only when they became frightened at what might be
the logical extension of his maltreatment of those who could hardly be
classed as toilers in their vineyards that they finally closed ranks
and smoked out the Big Bad Wolf from Shawano County. American populism
would have to find some way to get rid of the Lamonts before it found
another champion.
10
_Five Against God_
Steven I. Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and
Lawrence Roth
_versus_
The Board of Union Free School District Number Nine, New Hyde Park, N.
Y.
In the fall of 1951, the Board of Regents of the University of the
State of New York, which included members of the three major religious
faiths, unanimously adopted a twenty-two-word non-denominational prayer
for use in the public schools. “Almighty God,” it read, “we acknowledge
our dependence upon Thee and we beg Thy blessings upon us, our parents,
our teachers and our Country.” In recommending the prayer to local
school districts, the thirteen Regents suggested that it be recited
in conjunction with the pledge of allegiance to the flag. “We are
convinced,” they said, “that this fundamental belief and dependence of
the American--always a religious--people is the best security against
the dangers of these difficult days.”
On July 8, 1958, the five-member Board of Education of the Herricks
Union Free School District in New Hyde Park, a Long Island suburban
community, some twenty miles due east of New York City, by a vote of
four to one, adopted a resolution “that the Regents’ Prayer be said
daily in our schools,” and directed District Principal Lester Peck
“that this be instituted as a daily procedure to follow the Salute
to the Flag.” The board’s action was duly reported in _On Board_,
its official bulletin, which was distributed to all taxpayers in the
district. Lawrence Roth, a plastics manufacturer who had moved to Long
Island from New York City seven years earlier, was one of the issue’s
most interested readers.
Roth, a slim, bespectacled man in his middle forties, whose sons,
Joseph and Daniel, attended two of the district’s seven schools, was
distressed by the board’s action. Although he had been vaguely aware
that there was some pressure to introduce the Regents’ Prayer into the
district’s schools, he also knew that six previous attempts to do so
had failed. The school board’s sudden about-face caught him completely
by surprise but, being what his lawyers were later euphemistically
to call a “non-believer,” Roth was deeply disturbed by the prayer’s
implications. His two sons, who were ten and thirteen years old, shared
his religious views, and he was concerned with their spiritual and
psychological reaction to the new prayer that was scheduled to start in
September.
Roth began to discuss the problem with a Catholic neighbor who shared
a seat with him on the commuter train to New York City which left the
Long Island Railroad’s Albertson station in Rosalyn Heights at 7:03
each morning. It wasn’t long before the plastics manufacturer realized
that his knowledge of the United States Constitution as it affected
church-state relationships was extremely limited. When his commuter
friend recommended that he contact the New York Civil Liberties Union,
Roth called that organization at once and spoke to George Rundquist,
its energetic director, who suggested that he drop in for a chat at his
earliest convenience.
In early August, Roth, who was now more uneasy than ever about the
Regents’ Prayer, arrived at Rundquist’s ninth-floor office on lower
Fifth Avenue. Although the latter shared Roth’s doubts about the
prayer’s constitutionality, he pointed out that any legal action to
invalidate it would almost certainly subject Roth and other parents
who might join with him to strong community pressures. “You will be
hated and despised by most of your neighbors,” Rundquist told his
caller, “and your children will have to face the scorn of many of
their classmates. But if you are willing to endure all of this, I’ll
query our board of directors.” Roth nodded his head. “I’m willing,” he
replied firmly.
On September 4, Rundquist sent a memorandum to the members of his board
which detailed several items on the proposed agenda for their regular
monthly meeting five days later. Item II read as follows:
Regents’ Prayer For Public Schools
The Situation:
On July 8 the School Board of the Herricks Union Free School
District (Nassau County) voted that the school day shall be opened
by recitation of the following prayer, recommended by the Board
of Regents in November, 1951: “Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon us, our parents,
our teachers and our country.”
At the time that the proposed prayer was released the NYCLU, along
with many civic organizations, expressed its opposition to reciting
this prayer in the public schools through a public statement to the
press and a letter to the New York City Board of Education (December,
1951). We also requested that the matter be considered at a public
meeting so that we might have an opportunity to present our views on
the matter.
Because of public reaction to the Regents’ proposal, the New York City
Board of Education took no action until January 15, 1953. At that
time, it adopted a resolution that students sing the fourth stanza of
“America” each school day, following the Pledge of Allegiance: ‘Our
fathers’ God, to Thee/Author of Liberty/To Thee I sing/Long may our
land be bright/With freedom’s holy light/Protect us by Thy might/Great
God, our King.
The Question:
Should the NYCLU adhere to the policy adopted in 1951? If so, shall
we implement our position by supporting a group of residents in the
Herricks School District who seek to enjoin the School Board from
proceeding with the recitation of the prayer?
The 1951 letter to which Mr. Rundquist referred had been sent to
Maximilian Moss, the President of the New York City Board of Education.
In it, John Paul Jones, then the Union’s chairman, had asked for
a public hearing before the Regents’ Prayer was considered. “Our
opposition,” Jones had written, “is based in law upon the ruling of
the United States Supreme Court that neither a state nor the Federal
government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or proffer one religion over another. The
Union believes that the proposed non-denominational prayer falls within
the ban of the First Amendment as thus interpreted by the Supreme
Court.”
Jones was quick to point out that his organization had no objection
to programs devoted to spiritual teaching, but that, since it was
impossible to present such programs without interpretation, they would
inevitably lead to the expression of sectarian points of view. “Our
opposition to the proposal of the Regents is not opposition to the
teaching of religion,” he concluded. “But it is the belief of the Union
that the teaching of our spiritual heritage, through prayer and special
programs, is the function of religious leaders and of parents and not
the proper function of public school teachers conducting classes in a
public school supported by public funds.”
On September 9, Rundquist reviewed the situation for the Union’s Board
of Directors at their regular luncheon meeting at a midtown hotel.
While several of his listeners thought that it would be wiser to work
through the legislature rather than the courts, the majority voted
to assist Roth and his neighbors with legal help. “It was moved and
passed,” the minutes of the meeting read, “that we re-affirm our 1951
position in opposition to the prayer and, assuming that we have counsel
willing and with time to take over, that we intervene in the case.”
As soon as Rundquist returned to his office, he put in a call to
William J. Butler, a former staff counsel of the American Civil
Liberties Union, who had specialized in corporation law since entering
private practice. Butler, a tall, stocky Harvard graduate in his middle
thirties, whose four grandparents had all migrated to the United States
from Ireland, and two of whose uncles were priests, was married to
the daughter of Arthur Garfield Hays. An ensign in the merchant marine
during World War II, he was a sailing fan who missed no opportunity to
be on or near open water.
Quickly, Rundquist explained that the Union had decided to support
Roth. Was Butler interested in handling such a case? He was. “I
consider this prayer ruling a dangerous threat to freedom of religion”
he told Rundquist. “That is why I will take the case.” Ten minutes
later, the lawyer was talking to Roth. He had only one request to make
of the plastics manufacturer. He would like a group of plaintiffs
who represented a religious cross-section of the community and which
contained no agnostics or atheists. “I’ll do my best, Mr. Butler,” Roth
promised.
As soon as he returned home that evening, Roth placed advertisements in
the _Roslyn News_ and the _Williston Times_, asking for people who were
interested in challenging the Regents’ Prayer to contact him. Within
two weeks, he had assembled the names of fifty Protestants and Jews
as well as one Catholic. But it wasn’t long before his list began to
shrink “We found,” Roth later revealed, “that there was going to be a
substantial amount of pressure and even vilification and hostility. One
couple were 100 per cent with us until they spoke to their minister.
Then they came to me and said, ‘We’re still with you but our minister
said this is a controversial matter and we can’t join you.’” One of the
project’s most enthusiastic supporters quit when his employer warned
him that “it was foolish to get mixed up in controversial cases.”
Finally, after two weeks of intensive effort, Roth was left with only
four willing parents whose children would not graduate before the
impending test case wound its way through the courts.[1]
[1] Seven years earlier, a suit challenging the reading of verses
from the Bible in New Jersey public schools had been dismissed by the
United States Supreme Court because all of the plaintiffs’ children had
graduated before the case reached its docket.
In addition to Roth, the prospective plaintiffs whose names were
given to Butler early in October were composed of three men and one
woman. Steven I. Engel, a big, balding man in his late thirties, whose
seven-year-old son Michael attended the Searington School, was the
international sales manager for a textile firm. A precise speaker,
Engel was a Reform Jew. Forty-five-year-old Daniel Lichtenstein, a
manufacturer’s representative, had three children in the district’s
schools. Like Engel, he was Jewish and had emigrated to Nassau
County from Brooklyn. A deeply tanned, stocky man with an outgoing
personality, he was a handball and bridge expert. Paradoxically, he had
served as campaign manager for Mary Harte, the school trustee who had
moved the adoption of the Regents’ Prayer, when she first ran for the
Board of Education.
Monroe Lerner, an account executive in a Wall Street firm, was an
analytical man who was not one to make any hasty decisions. Tall and
balding, he had one child, seven-year-old Cynthia, who attended the
Searington School. He was a member of the Ethical Culture Society.
Lenore Lyons, whose husband did not share her antipathy toward the
Regents’ Prayer, was a tall, dark-haired woman with three children of
school age. Easily the most attractive member of Roth’s little band,
Mrs. Lyons was the Religious Education Chairman at the Unitarian Church
she and her family attended.
Before resorting to the courts, the prospective plaintiffs were
required by law to submit a formal request to the school board asking
it to rescind its July resolution adopting the Regents’ Prayer. On
December 4, a letter signed by all five parents was mailed to the
school district’s Administration Building in New Hyde Park. “We, and
each of us,” it stated bluntly, “hereby demand that you discontinue, or
cause to be discontinued, the practice instituted for the first time at
the beginning of the current school year of having a prayer said daily
following the Salute to the Flag in all the schools of the district,
and particularly the schools which our children attend.” The prayer,
the letter continued, was “a violation of the Constitution of the
United States and of the State of New York.”
On January 6, 1959, Florence Alnwick, the clerk of the Board of
Education, wrote to Butler. “As you are probably aware,” she said, “the
Education Law confers certain authority upon the Board of Education
and pursuant thereto the Board of Education on July 8, 1958, adopted
a resolution authorizing and directing the daily use of the Regents’
recommended prayer, to which you refer, in the schools within the
district.” Accordingly, she had been directed by the Board of Education
to advise the lawyer that no further action on the subject of the
prayer was contemplated.
While he had been waiting for the Board’s reply, Butler had not been
idle. Anticipating a negative response, he had began preparing a
petition to the Nassau County Supreme Court shortly after his five
plaintiffs had been selected. By year’s end, he had, with the aid
of his partner, Stanley Geller, whose resemblance to Gregory Peck
was startling, finished his labors and, two days before receipt of
the board’s letter, the petition was verified by Roth and his fellow
plaintiffs. Addressed to William J. Vitale, Jr., Philip J. Fried, Mary
Harte, Anne Birch and Richard Saunders, the members of the Board of
Education, it asked the court to direct them “to discontinue or cause
to be discontinued in the schools of said district the saying of the
prayer designated as the Regents’ Prayer.”
In the main, the plaintiffs claimed that “the saying of said prayer and
the manner and setting in which it is said,” violated both the Federal
and State Constitutions. According to them, District Superintendent
Peck had established a daily ritual for saying the Regents Prayer.
“Each morning at the commencement of each day in each school following
the salute to the Flag,” their petition read, “the said prayer is said
aloud. The prayer is led by the teacher or by a student selected by the
teacher with the other students joining therein. The prayer is said
with the hands clasped together in front of the body, fingers extended
and pointed upwards in the manner of a suppliant. During the saying of
the prayer, no student is permitted to leave the classroom.”
On February 18, the school board served its answering papers on
Butler. Represented by handsome, dark-haired Bertram B. Daiker of the
Port Washington law firm of Gunn, Neier & Daiker, it denied that the
saying of the Regents’ Prayer violated either the United States or the
New York Constitutions. Moreover, it claimed that, not only did the
petitioners lack the power “to interfere with the saying of the prayer
by the children of others under the color of judicial process or
otherwise,” but that their lawsuit, if successful, would be tantamount
to an interference with freedom of religion.
An affidavit by William J. Vitale, Jr., the dapper president of the
school board, accompanied the latter’s answer. Vitale pointed out
that, since the beginning of the school year, only one parent had
requested that his child be excused from the saying of the prayer. In
addition, no child had asked to leave the room during the prayer. As
for the petitioners’ claim that children had been forced or shown how
to pray, this was simply not the case. “On the contrary,” he said, “the
principals and teachers in the School District have been directed and
are following the directions that under no circumstances shall a pupil
in any way be made or encouraged to join in the prayer and no teacher
has instructed the pupils how they are to hold their hands or otherwise
conduct themselves during the saying of the prayer.”
Both as a school board member and a father, Vitale felt that the prayer
was beneficial. “I am fully conscious of the need for instilling in the
youth of today some recognition of the moral and spiritual values which
are part of the heritage of this country and of this state,” he argued.
“The brief moment of prayer, by those who join in it at the opening of
school each day, cannot help but remind those children, in the words of
our State Constitution, that by acknowledging their dependence on God,
they may ‘secure’ the blessings of Freedom granted by Almighty God.”
With the issue clearly joined, interest in the pending case began
to develop rapidly. On February 24, sixteen residents of the school
district applied for the right to intervene in support of the Regents’
Prayer. Speaking through their attorney, tall and articulate Porter
R. Chandler, a former president of the Guild of Catholic Lawyers,
they maintained that they had sufficient interest in the retention
of the prayer to be allowed to participate. Although Butler objected
strenuously to their motion, it was swiftly granted by Judge Bernard
S. Meyer. The intervenors’ participation, however, was limited to the
merits of the constitutional questions raised by the petitioners.
While they were waiting for their case to be argued, the plaintiffs had
good cause to recall Rundquist’s warning to Roth in September. From the
time their suit became known, all five were harrassed by threatening
letters and telephone calls. One caller told Roth that an organization
known as the Union Street Benevolent Society was preparing to bomb his
home. On many nights, the plastics manufacturer was forced to take his
telephone receiver off the hook in order to sleep. “We’re going to blow
up your car,” one gruff voice said. “Keep your eyes on your children,”
another warned.
On February 24, the contentions of all the parties were argued before
Judge Meyer in the spacious county courthouse on Mineola’s Old Country
Road. It took the tall, youthful-appearing judge exactly six months
to reach his decision. In a sixty-six-page opinion, he came to the
conclusion the school board’s resolution did not violate the federal or
state constitutions. In particular, he stressed that “the recognition
of prayer is an integral part of our national heritage [and] that
prayer in the schools is permissible, not as a means of teaching
‘spiritual values,’ but because ... at the time of the adoption of the
First and Fourteenth Amendments this was the accepted practice.”
However, he did find fault with the board’s resolution of July 8, 1958,
which directed “that the Regents’ prayer be said daily in our schools.”
Because the resolution was couched in what he called “mandatory terms,”
Meyer ordered Vitale and his fellow board members to modify it so as
“to establish a procedure whereby the parents of each child are advised
of the adoption of the resolution calling for the saying of prayer, of
the wording of the prayer and of the procedure to be followed when it
is said and requested to indicate whether the child shall or shall not
participate in the exercise.” The case was “remanded to the Board of
Education for further proceedings not inconsistent with this opinion.”
At the end of his long opinion, the judge thanked all the lawyers
involved “for the excellent presentation, not only in oral argument,
but in the original and supplemental briefs.” In closing, he referred
to an 1837 opinion of the Superintendent of Common Schools of the State
of New York. “Written one hundred and twenty years ago,” he said, “the
following statement, in the Court’s view, most completely conforms to
the requirements of both constitutional law and reason: ‘The simple
rule, so to exercise your own rights as not to infringe on those of
others, will preserve equal justice among all, promote harmony, and
insure success to our schools.’”
Ten days after Judge Meyer’s decision, the school board took steps
to comply with the latter part of his order. In a brief regulation,
teachers were directed to refrain from commenting “on participation or
non-participation in the exercise.” In addition, children whose parents
had submitted written requests to the principals of their schools were
“to be excused from participating or from the room during the prayer
exercise.” Five days later, each parent in the district received a
letter from District Principal Peck. After setting forth the prayer,
Mr. Peck informed his addressees that “any parent or guardian who does
not wish his child to say the prayer is requested to write a letter to
the principal of the school his child attends, indicating whether he
wants his child excused from the room or to remain silent while the
prayer is being said.”
In October, Butler appealed to the Appellate Division of the Supreme
Court. During the year that intervened before the case was finally
argued before the five-judge court, the school board asked Judge Meyer
to dismiss the proceeding on the merits. According to Philip J. Fried,
who, on July 1, had succeeded Vitale as the board’s president, Peck’s
letter to the district’s parents fully complied with Meyer’s decision
and there was no longer any reason for delaying the inevitable. Meyer
bowed to Fried’s inescapable logic. On March 17, 1961, he stated: “It
appearing to the court that respondent has complied with the directions
contained in the opinion of this court in this proceeding dated August
24, 1959, it is ordered that this proceeding be and is dismissed on the
merits.”