On August 14, 1956, the three judges on the appellate court affirmed

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.”

... and justice for all · 第 19 / 21 段