In this episode, ordinary citizens reveal the rewards — and personal perils — of defending their rights to privacy, freedom of conscience and church-state separation before the Supreme Court.
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MICHAEL HARDWICK: If there’s something wrong with this law, if it infringes on my rights as a human being, then by all means, the Constitution is going to provide a way for me to do something about that. I had no doubt about that in my mind.
GEORGE HOCHFIELD: And he told me as I left, he said, “The world is made up of managers and martyrs. And you, Professor Hochfield, are about to become a martyr.” Well, I guess the Supreme Court proved him wrong.
LAWRENCE ROTH: After the Supreme Court decision I said to myself, “What have I done?” The torrent of abuse, the penalty shall we say, of being an instigator…
BILL MOYERS: In this report, some Americans who stood up for privacy, conscience and freedom of religion in a Constitution for the people.
BILL MOYERS: It is two hundred years old.
MALE VOICE: One country, one Constitution, one destiny.
BILL MOYERS: We have revered and debated it.
MALE VOICE: Like the Bible, it ought to be read again and again.
MALE VOICE: People made the Constitution and the people can unmake it.
BILL MOYERS: We have honored and criticized it.
FEMALE VOICE: My faith in the Constitution is whole. It is complete.
MALE VOICE: The prejudices of the day are called constitutional law.
BILL MOYERS: We even fought a bloody civil war over it.
MALE VOICE: This covenant with death, this agreement with hell, this refuge of lies.
BILL MOYERS: But we have lived with it. We are still living with it today, still debating it, still In Search of the Constitution.
BILL MOYERS: Here in the National Archives are the three most important documents we Americans live by – the Declaration of Independence, the Constitution and the Bill of Rights, the first ten amendments to the constitution. The Declaration announced America’s determination to be a free and independent nation. The Constitution established our government. And the Bill of Rights guaranteed the protection of individual liberties. We believe in democracy, in majority rules. But we also believe in limits to democracy. There are certain things the majority ought not to do, even though it’s democratically elected. The Bill of Rights spells out those limits. The Bill of Rights is for you and me, but only when we dare to make it work.
BILL MOYERS: Have you read these? Have you ever read that before?
MAN [READING]: “Congress shall make no laws representing an establishment of religion…” That’s good!
BILL MOYERS: Did you ever read these? Do they sound familiar to you? Tell me if you’ve heard those before. Let me give you one of these and look at it for me, look
at each one of them.
BILL MOYERS: What are they? Recognize them?
MAN: Yeah, it’s from the Constitution.
BILL MOYERS: What part of the Constitution?
MAN: I don’t know about that.
BILL MOYERS: Can you read this?
GIRL: “Congress shall make no law respecting an establishment of religion…”
BOY: “…or prohibiting the free exercise thereof or abridging the freedom of speech or of the press.”
MAN: “…or abridging the freedom of speech or of the press.”
BILL MOYERS: Do you know what those are from?
MAN: The Bill of Rights, isn’t it?
BILL MOYERS: That’s right.
MAN: These are the Bill of Rights.
BILL MOYERS: Good for you.
MAN: A lot of people think they’re in the Constitution, but they’re not. They’re in the Bill of Rights.
BILL MOYERS: This is the Bill of Rights. Do you know what they do?
GIRLS: Oh yeah, oh yeah. I was going to say it.
BILL MOYERS: What are the Bill of Rights, do you know them?
MAN: Um, it’s not the Ten Commandments.
BILL MOYERS: Have you heard of the Bill of Rights before?
BILL MOYERS: What does it do?
BOY: It gives people their rights of America.
BILL MOYERS: What do you think they’re for? Do you remember from school?
MAN: Oh, what you live by is mostly – a code of conduct, you might say.
BILL MOYERS: What do they use the Bill of Rights for?
CHILD: They use it to buy things in stores, they use it to be allowed to live in certain places.
CHILD: To be able to walk around in the United States.
BILL MOYERS: To be free?
MAN: They establish the rights and freedoms that you have as a citizen of the United States.
MAN: It’s the guarantees for every American citizen.
BILL MOYERS: What kind of guarantees?
MAN: Everything that you can think of – freedom of religion, freedom of speech, so on.
BILL MOYERS: Who’s it for?
MAN: It’s for everybody. Every American citizen.
MAN: Who is it for? It’s actually for minorities, for the people that are not necessarily in agreement with the majority of the people.
BILL MOYERS: So the Bill of Rights protects us from – ?
MAN: It protects us from, well, from oppression, from dictatorship. That’s the main cause of the Bill of Rights.
BILL MOYERS: Who’s it for, the Bill of Rights?
MAN: It’s for the people. It’s for us.
BILL MOYERS: What does this do for us?
MAN: I think it gives us a lot of protection.
BILL MOYERS: Against?
MAN: Well, they protect us from ourselves, from tyranny.
MAN: The Bill of Rights – I don’t know.
BILL MOYERS: Do you think people today are familiar with these or do we take them for granted?
MAN: I think we take them very much for granted, far too much.
BILL MOYERS: Do you think we take them for granted today?
MAN: I think we do. I think a lot of people do who haven’t had exposure to what’s going on in other countries.
MAN: Well, most people aren’t, I don’t think, ever in the situations where really push comes to shove. I mean, if you are you wouldn’t take them for granted.
BILL MOYERS: Have you ever had to exercise it?
MAN: Have I ever had to exercise it? Sure, I exercise it every day.
BILL MOYERS: In what way?
MAN: Well, in my ability to speak about any issue that I want to. Freedom of speech. I think it affects every part of our lives.
BILL MOYERS: Do you feel pretty good about the Bill of Rights today?
MAN: Yes, I do.
BILL MOYERS: What about for her generation?
MAN: Well, I think there’s – I mean, this is from what I see on the media. There seems to be movements in either religious or political areas, where people want to try to change them or amend them or use their own interpretation of the rights in their own way. I think our Founding Fathers were pretty intelligent in what they did in establishing the Bill of Rights. I think in a lot of ways they were ahead of their time. And I think the Bill of Rights as they stand and the basic interpretation should be the way it should be dealt with. I think the new interpretations that seem to be coming out, with different religious leaders, maybe different politicians, whatever, I think they might be threatening the Bill of Rights.
BILL MOYERS: Do you feel those rights are in pretty
good shape today?
MAN: Most of them are.
BILL MOYERS: Where are they not?
MAN: Well, I think some of the freedoms of speech are being threatened in certain areas.
BILL MOYERS: In what way?
MAN: Well, I think that maybe religion is kind of infringing in the freedom of speech with the PAC’s and things, where they’re really influencing the government.
BILL MOYERS: Religion is trying to influence government instead of the other way around.
BILL MOYERS: If someone tried to force you, some government agency tried to force you to pray, would you go to court?
MAN: Well, of course. Course I would. That’s my right to do it or not do it, as I see fit.
BILL MOYERS: Would you go to court if you had to pray in school?
BILL MOYERS: Why?
CHILD: Because some people aren’t religious.
BILL MOYERS: And what does that mean?
CHILD: And that means that it wouldn’t be fair for them to have to pray in school if they didn’t need to.
CHILD: That’s what church is for.
CHILDREN: “Almighty God, we acknowledge our dependence upon you…”
BILL MOYERS: A generation ago it was commonly accepted that children should pray in our public schools. But then a few citizens who believed their rights were being violated took their case to the Supreme Court.
DANIEL ROTH: I remember the prayer to this day. I could recite it at the drop of a hat. Sure. “Almighty God, we acknowledge our dependence upon Thee…”
BILL MOYERS: Daniel Roth was just a kid in 1958, when his father, Lawrence, filed suit in his behalf.
DANIEL ROTH: I can’t remember the words. Something…
LAWRENCE ROTH: …supposed to be 22 words…
DANIEL ROTH: No, our parents, our teachers and our…
LAWRENCE ROTH: Country?
DANIEL ROTH: Country. Amen. That’s what it was. And I remember it. And I do remember, actually, now that you mention it, I do remember being terribly self-conscious about not saying it. I had – it’s true. I felt terribly awkward, you know, like when you go to a dance and you’re convinced you’re the only one with the two left feet. I mean, that’s how I felt. I felt like everybody else is saying this and I’m not. Why not? Why aren’t I saying it and do I want to say it? And why don’t I want to say it?
BILL MOYERS: The Supreme Court ruled in 1962 that school prayer was unconstitutional. A controversy erupted that continues today. And the politicians led the attack.
POLITICIAN: This was not the first tragic decision of the Supreme Court.
But I would say it was the most tragic decision in the history of the United States.
POLITICIAN: They put the Negroes in the schools. Now they put God out of the schools.
POLITICIAN: The Supreme Court decision has dealt a blow to all believers in a Supreme Being and has given aid to the disciples and followers of atheism by whatever name they see fit to call themselves.
BILL MOYERS: This year Lawrence Roth and Daniel returned to their old home on Long Island to recall what happened in those tumultuous days.
LAWRENCE ROTH: There are a lot of memories in this house.
DANIEL ROTH: Yeah, it feels kind of funny being here.
LAWRENCE ROTH: Does it?
DANIEL ROTH: Well, I guess, what was I, twelve years old when we moved here? And I guess I lived here until I went away to college, so, a lot of – six years.
LAWRENCE ROTH: A lot of living in this house. And some of it somewhat painful. But I guess that goes with the territory. But it looks nice.
DANIEL ROTH: This is where the rags were put down.
LAWRENCE ROTH: Right.
DANIEL ROTH: The night that the cross was burned.
BILL MOYERS: As long as a year after the Court’s decision, the Roths were still besieged by people angered at their suit. A cross of burning rags scarred their driveway and their memory.
LAWRENCE ROTH: And if it hadn’t been for my neighbor, John, who knows what would have happened? We might have all gone up in smoke because –
DANIEL ROTH: It was right behind the car.
LAWRENCE ROTH: Yeah, well – but the gasoline-soaked rags were going right up to the gas tank of my car, which could have gone up like that.
DANIEL ROTH: I remember turning the corner over there and seeing fire engines and police cars and many people out in the street and it was really quite a shock.
LAWRENCE ROTH: Memories.
PRESIDENT JOHN F. KENNEDY: It’s important for us, if we’re going to maintain our constitutional principle, that we support Supreme Court decisions, even when we may not agree with them. In addition, we have in this case, a very easy remedy. And that is to pray, ourselves.
BILL MOYERS: It’s been 25 years now since the Supreme Court handed down that decision. Do you still remember the day you heard the news?
LAWRENCE ROTH: Suddenly one day it ended and it began, shall we say.
BILL MOYERS: It ended.
LAWRENCE ROTH: Well, the case ended, but it was the beginning of, I’d say, the widespread notoriety, for lack of a better word.
DANIEL ROTH: It was only when the Supreme Court decision came down and then the thing really exploded.
BILL MOYERS: What happened?
LAWRENCE ROTH: What happened. Well, we began to get mail for one thing, several thousand pieces of mail, well over two thousand, something under three. We began to get threats on the telephone. “Don’t start your car tomorrow morning. It’s going to blow up.” We began to get – well, those kids burnt a cross on our lawn.
DANIEL ROTH: In fact, there were other incidents also.
LAWRENCE ROTH: Oh yes, picketing –
DANIEL ROTH: As I remember, the house was picketed by what was then called the American Nationalist Party.
BILL MOYERS: A cousin of the Nazi Party.
DANIEL ROTH: Yeah, right. It was pretty scary.
LAWRENCE ROTH: That’s the understatement of the day.
DANIEL ROTH: You know, the volume of it. It wasn’t just one or two. I mean, our names and addresses and phone numbers appeared in a syndicated newspaper column as an obvious shot. I mean, whoever wrote the column had a serious bone to pick with us and did us the favor of printing names, addresses and phone number. And I don’t know how many columns – I don’t know what the extent of his syndication was, but it was national. And, quite literally, the phone did not stop ringing 24 hours a day for, I don’t know, it seemed like a couple of days, if not a week.
LAWRENCE ROTH: It has always been a very simple situation. Does the state have the right to mandate prayer? Now this doen’t mean that I’m against prayer, let’s say. Or any of this. As a matter of fact, I pray every day. I have my prayers right here.
BILL MOYERS: You do?
LAWRENCE ROTH: I’m not against prayer. I pray all the time.
BILL MOYERS: Do you take a different one of those prayers every day?
LAWRENCE ROTH: Oh, yes sir. These are prayers that I’m connected to. Here’s the prayer that I used to help me stop drinking alcohol.
BILL MOYERS: Read it for me.
LAWRENCE ROTH: Oh. “Dear God, thank you for the strength you have given me so that I stop drinking the insidious poison called alcohol. Alcohol disconnects me from my heritage, my inner voice of Ezra. Blessed is your name.”
BILL MOYERS: What was it Justice Black said in the decision on your case? The prayer of each man must come from his soul and must be his and his alone. That’s the genius of the First Amendment.
LAWRENCE ROTH: That’s exactly my position. This is such a personal matter, such a private matter. One’s relationship to the creative process is not something that can be thrown down on a bunch of unwilling or unsuspecting or unknowing children. It distorts, at least in my view, distorts the meaning of the creative process of which we are a part.
BILL MOYERS: Why did you suddenly decide in the case of your sons to take the stand?
LAWRENCE ROTH: Once they said to pray, you could only pray in the Regent’s Prayer, which was written and sponsored by the Board of Regents.
BILL MOYERS: It was an official prayer.
LAWRENCE ROTH: Oh, official, absolutely. This is the only prayer that could be said.
BILL MOYERS: You remember the prayer?
DANIEL ROTH: Yes.
BILL MOYERS: Even to this moment?
DANIEL ROTH: I remember it absolutely, as well as I remember the Pledge of Allegiance.
BILL MOYERS: What was it?
DANIEL ROTH: “Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.”
BILL MOYERS: What did you think when you prayed that every day?
DANIEL ROTH: Well, I didn’t. I didn’t. I didn’t say anything. I remained silent.
BILL MOYERS: Did any kids say anything to you about not praying?
DANIEL ROTH: Truthfully, I have a stronger recollection of teachers ostracizing me more than my fellow classmates. Two teachers, in particular, who managed to hold me up for ridicule and questioned my patriotism, if you will, and implied that what we were doing was some kind of communist-inspired plot or words to that effect.
BILL MOYERS: A teacher?
DANIEL ROTH: Yeah, absolutely.
BILL MOYERS: In front of the other students?
DANIEL ROTH: Yes, absolutely. Several times. More than once.
BILL MOYERS: Suggested that you were unpatriotic?
DANIEL ROTH: Oh yeah, absolutely.
BILL MOYERS: To the other children?
DANIEL ROTH: Oh, in my civics class, what we called C.E., citizenship education.
BILL MOYERS: What did you think when you heard that?
DANIEL ROTH: It was tough. I mean, it did not make adolescence any easier, I can tell you that.
BILL MOYERS: What did you think of all this hate in the name of religion? All of this abuse because you’d simply done what an American citizen is supposed to do, defend his rights?
LAWRENCE ROTH: I was unprepared for it. There’s just no way I could have imagined that what seemed to me to be such a clear-cut, clean issue, one that our Founding Fathers fought and one that went on in England for umpteen generations, the fight for the separation of church and state. It seems like such a clean-cut issue, it just never occurred to me ever that it would be misinterpreted to be an attack on religion in general or prayer in general.
DANIEL ROTH: You know, it’s ironic because it’s obviously very much alive today. This is anything but a dead issue. The fact that the Supreme Court has ruled on it has only fanned the fires to some extent.
BILL MOYERS: Here’s why you have the reaction. For so long nobody challenged that. The prayers were said week after week, year after year, decade after decade until finally Lawrence Roth and a group of his neighbors out on Long Island decided to challenge that Constitution. And suddenly you were taking on the religious establishment of America. Would you remember what Cardinal Spellman said when the Court handed down its decision? He was shocked and frightened. It strikes at the very heart of America’s godly tradition. Cardinal Mcintyre of Los Angeles said it was shocking and scandalizing and would force America to emulate Krushchev. A Methodist bishop in Georgia said it was like taking a star and stripe out of the American flag.
DANIEL ROTH: Supposing the local Hari Krishnas decided that they were in power and the Christian fundamentalists had to say their prayer. I mean, that’s not what this country was founded on. If the Hari Krishnas dictated a prayer to Jerry Falwell, I’m not so sure that he wouldn’t have done exactly what my father did. And thank God there’s a mechanism in this country that allows for that kind of redress. So, you know, it’s a very dicey thing when everybody gets on a high horse and says, “Well, how could people object to prayer?” If it was somebody else’s prayer that they had to say, I bet they wouldn’t feel so generous.
BILL MOYERS: If that majority wanted a prayer and exempted you from having to pray in it, would that change it?
DANIEL ROTH: The country was founded on the premise of religious freedom. And this is a constitutional issue and it has become so exacerbated because religion, not – the Constitution is not an emotional issue. Religion is an emotional issue. And that’s fine. I have no arguments with that at all. But that’s not what this is about. This is about the Constitution and what this country is founded on.
BILL MOYERS: Millions of people in this country right now, including the President of the United States, want their prayers back. Are they going to get them?
LAWRENCE ROTH: I have a feeling that there will be a long, drawn out struggle, shall we say a political struggle, on every level of political life to determine this issue. I could see my children’s children’s children going on with this issue because it’s not something that’s going to be, I think, decided overnight.
BILL MOYERS: Daniel, would you – you have how many children?
DANIEL ROTH: Two children.
BILL MOYERS: How old are they?
DANIEL ROTH: My son will be 15 tomorrow and my daughter is nine.
BILL MOYERS: Would you put them through the same process in defense of your strong beliefs about the Constitution?
DANIEL ROTH: Well, before I could even answer that, I’d have to wonder if I’d put myself through it, frankly. That would really be a harder question for me to answer, to be perfectly candid. I’m not sure I would want to do it myself. If I decided to do it, then yeah, the answer to your question would be yes. I would hope to impart that conviction to my children, but the first question is whether I would do it.
BILL MOYERS: Do you know the answer to that question?
DANIEL ROTH: Not really. I’d like to think I know it. I’d like to think I would. But I’m really not sure. I’m honestly not sure.
BILL MOYERS: What would you tell him about that, Mr. Roth? Were there moments when your own faith wavered, when you weren’t sure you had done the right thing? This persecution, these slings and arrows.
LAWRENCE ROTH: “That is the question. Whether tis nobler in the mind to suffer the slings and arrows of outrageous fortune or to take arms against a sea of troubles and, by opposing, end them.” The only time I felt I had qualms and I felt somewhat ambivalent was after the Supreme Court decision and I said to myself, “What have I done? The torrent of abuse, the penalty shall we say, of being an instigator, for lack of a better term, he penalty of possibly exposing my children to danger. And that was the only time that I waivered somewhat. And I don’t know how else to describe it. There are just certain things a man’s got to do.
BILL MOYERS: What does it feel like to have the weight and power of the Constitution on your side while so much of the country is on the other side?
LAWRENCE ROTH: Well, when I think about it, it gives a certain amount of security. I feel that I’m connected to its past.
BILL MOYERS: Meaning being part of the founding of the constitution, the making of this nation, not to mention a longer history.
LAWRENCE ROTH: Yeah, not to mention that which went on in England for a long time.
BILL MOYERS: What’s the lesson in this for the rest of us?
LAWRENCE ROTH: The lesson for me and, hopefully, for the American people, is that you can fight city hall, should the need arise.
BILL MOYERS: Would you go to court if somebody tried to make you pray against your will?
MAN: Yes, I would.
BILL MOYERS: Would you go to court if you had to? All the way to the Supreme court?
MAN: Yes, I would.
BILL MOYERS: If you had to pray against your will?
MAN: If I had to pray, I certainly would.
BILL MOYERS: What if you had to sign a loyalty oath? If you had to sign something you didn’t believe, would you go to court?
BILL MOYERS: Why?
CHILDREN: Because it’s not fair, blackmailing –
BILL MOYERS: It’s what?
CHILD: If they make you sign it, it’s blackmailing.
CHILDREN: They can’t force you to sign it…It’s not fair…Cuz you don’t believe it without a fair trial.
BILL MOYERS: There were few fair trials for the accused in the McCarthy hysteria of the 1950’s.
DOROTHY KENYON (GOVERNMENT OFFICIAL): I am not and never have been a communist. I am not and never have been a fellow traveler. I am not and never have been a supporter of, a member of or a sympathizer with any organization known to me to be or suspected by me of being controlled or dominated by communists.
BILL MOYERS: The junior senator from Wisconsin, Joseph McCarthy, used public hearings to attack the loyalty of government officials and private citizens he said were communists or communist sympathizers.
JOSEPH MCCARTHY (R-Wis.): You’re not fooling anyone. I have offered to go before any committee, do anything you ask, if I can just get you to come down here and take the oath so we can get the answers to some questions.
BILL MOYERS: Loyalty oaths were still an issue in universities in the early 1960s. Where they existed the choice was clear. Either sign the oath or lose your job. In 1964 five professors at the State University of New York in Buffalo refused to sign and filed suit to challenge the constitutionality of the oath. George Hochfield and Harry Keyishian, two young members of the English Department, were among them. For Harry Keyishian, it was revenge on the ’50s.
HARRY KEYISHIAN: I had been in college from ’50 to ’54, at Queens College in New York, and a number of my professors had been, in fact, fired under the terms of the Feinberg Law and the House UnAmerican Activities Committee’s sweeps and so forth. And they were people I admired very much. And what struck me at the time, what I still carried as a kind of burden into the ’60’s was a sense of frustration and impotence, to watch these very decent, these intellectually talented and dedicated teachers vanishing from the system and being driven out and not being able to do anything about it. So a decade later when, there we were at the University of Buffalo, there was an opportunity to do something about it.
BILL MOYERS: Do you remember what the oath said?
HARRY KEYISHIAN: I’m glad you asked that. I have my certificate right here.
BILL MOYERS: This is the one you were supposed to sign?
HARRY KEYISHIAN: Right. Yellowing but unsigned.
BILL MOYERS: It is unsigned. Is this the original one presented to you?
HARRY KEYISHIAN: Yes, that’s it.
BILL MOYERS: You’ve kept it all these years.
HARRY KEYISHIAN: Oh yes.
BILL MOYERS: Read it.
HARRY KEYISHIAN: Alright. “Anyone who is a member of the Communist Party or of any organization that advocates the violent overthrow of the government of the United States or of the State of New York or any political division thereof cannot be employed by the State University. Anyone who was previously a member of the Communist Party or of any organization that advocates the violent overthrow of the government of the United States or the State of New York or any political subdivision thereof, is directed to confer with the president before signing this certificate.”
BILL MOYERS: So this is the actual requirement. Now why do you object to that? Why did you object to that?
HARRY KEYISHIAN: Well, it presented a political test. That is, one had to declare oneself to pass the political – a test of political purity.
GEORGE HOCHFIELD: It was, in effect, a test of conformity. And from our point of view, I think, insofar as academic freedom was concerned, that was the key. The issue of academic freedom comes up when you see the certificate as a political test of conformity, as a requirement for entrance into the teaching profession.
BILL MOYERS: How many members of the faculty were there at the university at this time?
HARRY KEYISHIAN: There were 900.
BILL MOYERS: And how many refused to sign?
GEORGE HOCHFIELD: Five, altogether, refused to sign.
BILL MOYERS: Eight hundred and ninety-five signed?
GEORGE HOCHFIELD: I’m afraid so. The implication of not signing was that you would lose your job. So when people thought about it, and they thought about the possible costs to them because it was – one of the things that one heard was if one wants to fight this, it’s going to cost a lot of money. And so the people who fight it will have to put up money. With considerations like that in mind, a lot of faculty simply decided it wasn’t worth the trouble. It wasn’t worth the danger.
BILL MOYERS: The faculties of the medical school and the law school, in particular, as I understand it, signed without complaint. Is that true?
HARRY KEYISHIAN: They did, yes.
BILL MOYERS: The law school?
HARRY KEYISHIAN: Oh yes.
BILL MOYERS: The future interpreters of the Constitution?
HARRY KEYISHIAN: Oh yes, I know.
BILL MOYERS: Of the First Amendment.
HARRY KEYISHIAN: One of my favorite documents that I keep around the house is a report from the law school which assured the faculty that there was absolutely no chance that this case could be won in the courts, that the Feinberg Law was solid. I take it out every so often just to demonstrate to myself the folly of my –
GEORGE HOCHFIELD: The Supreme Court had ruled on the Feinberg Law in 1952 and they found it constitutional.
BILL MOYERS: They upheld it?
GEORGE HOCHFIELD: Oh yes. So that the case that we were bringing didn’t – well, there was reason to think that it wasn’t very hopeful.
BILL MOYERS: What was the hardest thing in all this?
HARRY KEYISHIAN: For me it wasn’t any of these administrators or colleagues or anything of that sort. It really was my family. And my mother and father, specifically, trying to make them understand what was going on. They were both Armenian immigrants who’d come to the country and they’d suffered in 1915 through all that. And my father was a very patriotic individual, a rug wholesaler and my mother was a very pious evangelical Protestant. And they were both really – it was very difficult for me to try to get them to understand what this was about. I had a very touching letter, which was really heartbreaking, from my father at one point when I was in Buffalo, saying that he hoped I would never do anything that would harm this wonderful country that had given him so much and to which he was so grateful. All the rest of it one could handle.
BILL MOYERS: What did he think or do you know what he thought when the decision came down from the Court and you had won?
HARRY KEYISHIAN: Well, he was glad I won. I mean, at least I
BILL MOYERS: What was the significance of that to you? That it only was declared unconstitutional by one solitary vote?
HARRY KEYISHIAN: I worried in that I thought perhaps that would make it vulnerable the next time around or to some other sort of challenge. But I think William Brennan, who wrote the decision, his decisions have apparently been so well drawn and so well crafted that they’ve held up in very hostile environments in that Court and I hope they’ll continue to do so.
BILL MOYERS: One of his sentences in that opinion rang out like a bell. “Academic freedom is of special concern to the First Amendment,” he said, “It does not tolerate laws that cast a pall of orthodoxy over the classroom.”
GEORGE HOCHFIELD: From the point of view of that decision, we won a lot. From the point of view of establishing academic freedom as a real solid, legal thing that could be defended in the courts, it was only ten years before that that academic freedom was first mentioned by the Supreme Court. So by the time that language like this was used in our decision, well, one felt, really, we had made a great deal of progress.
BILL MOYERS: The Court used it, you use it, academic freedom is such an abstract word. Also, it’s almost a cliché now. What is it to you? What was at stake in this?
GEORGE HOCHFIELD: Well, I’ll tell you what it means to me. It means that when I teach my class, I never have to have second thoughts about whether I ought to say something or ought not to say something. That is, second thoughts related to the possible political implications. When I discuss pieces of writing with my class, I never have to think of the possible political dangers that might arise from my discussion of certain documents with them. Or from the attitudes that I express or the ideas that I let them hear. One simply feels that one is free to do one’s job as well as one can, you know? And not have to think about possible dangers arising.
HARRY KEYISHIAN: If we don’t get that across, if we don’t teach our students and, through them the wider community, that that is vital and as vital as the blood in their veins, then we’re not doing our job.
BILL MOYERS: You said in something you wrote back then I read before we met, something about “we owe it to the community to be the best possible university that we can for their sake.”
HARRY KEYISHIAN: There’s no other way. I mean, the stifling bureaucracies in other countries over there, one sees it. Why the lesson isn’t learned over here I don’t know. Sometimes I think some of these people who came after us from the community would have made great communists. Wonderful communists. They had the mentality down pat.
BILL MOYERS: You said at the time that you just didn’t think the state had the right to inquire into my political beliefs, your political beliefs. But often when a case goes to the Supreme Court, aren’t there two rights in conflict, your right to teach in this case, academic freedom as you say, but the state’s right to preserve itself? Justice Clark, I think it was, who wrote a dissenting opinion at the time, said the state has a right to preserve itself. And that’s what’s at issue here.
GEORGE HOCHFIELD: Although the state has a right under certain circumstances, one wants to keep those rights, that right as circumscribed as possible. If I’m actually laying plots to overthrow the United States government, well let them arrest me. But let them not come to ask me beforehand whether I’m a member of this group or that group. That’s what I object to. Of course, if I’m doing something criminal, I ought to be arrested. I won’t protest their doing that.
BILL MOYERS: You were doing something criminal. You were refusing to sign that affidavit.
GEORGE HOCHFIELD: Well, I was convinced, however, that I was not criminal and that I would be vindicated by the Constitution. And I was.
HARRY KEYISHIAN: And a lot of civil rights marchers were doing just exactly that sort of thing. That is, contravening the law of the land in the name of something which they felt to be a higher and more significant moral truth.
BILL MOYERS: Were you disappointed that so many others didn’t stand with you?
HARRY KEYISHIAN: Yes. I wanted, among other things, for the academic community to show its strength. That is to say, we are not just purveyors of knowledge, but we have a kind of moral strength that underlies the job of being in that position of university professor, of teacher and so forth. And if we couldn’t stand behind beliefs, especially since our colleagues had no use for these oaths, could not defend them intellectually. If we had stood 900 to nothing against this oath it wouldn’t even have gone to the Court, I suspect.
GEORGE HOCHFIELD: We had a marvelous opportunity to say no. And it was a bitter disappointment that so few of us did.
BILL MOYERS: What’s the lesson of that then? That freedom usually depends upon the one or two, the few who will stand?
GEORGE HOCHFIELD: Well, I guess it often does. And I suppose in this case it did. And the vindication was very sweet. And it’s been sweet ever since, you know. One feels good about it for the rest of one’s life. But it still is a disappointment that there weren’t more. If there were more, we would have all been safe. The state could never have fired 50 or 100 professors at once. Never. But it could have fired five. And it did fire Harry.
BILL MOYERS: Do you remember the day you heard the news that you had won?
HARRY KEYISHIAN: Oh yes. I got a call from a friend who happened to work at the Times and I was asleep. So he woke me up. That’s why I awakened to discover we’d won. That was very nice.
BILL MOYERS: What about you?
GEORGE HOCHFIELD: I heard it on the radio, I think it was in the morning. And I dashed out and got a copy of The New York Times. And there was the whole decision all over a page. And I remember going to the department office, which was then in that little temporary building. Do you remember on the old campus? And dancing down the hall as I saw my colleagues who knew precisely why I was dancing.
BILL MOYERS: So few of us get a chance to express dramatically our civic faith. We can vote. We can write our congressman, occasionally get a letter published to the editor of a newspaper. Maybe, maybe get on television once or twice to speak out. Is there some satisfaction in knowing that you might have blown this and you didn’t?
HARRY KEYISHIAN: Oh yes. Oh, I just – the very thought that I might have walked away from this just really horrifies me. It’s sweet. They say revenge is sweet. If this is a form of revenge on the ’50s maybe, it was awfully sweet.
GEORGE HOCHFIELD: I thought that the Bill of Rights was superbly vindicated in this case and that its appropriateness to unforeseen conditions of modern life had been demonstrated.
BILL MOYERS: But what about the case that others have made to me that the Supreme Court only comes riding to the rescue of the aggrieved at the end of the siege. That in ’52, at the height of the paranoia and the suspicion, the hatred and the vilification, the Court upheld these laws. And it was only when the furies had been spent and the passions had been tamed and the times had changed that the Supreme Court said, “Okay, Bill of Rights applies.” It was popular to do so at that time.
GEORGE HOCHFIELD: Well, it’s hard for me to hold that against the court. But I don’t know of any other country that has an instrument so effective, finally, to make the law prevail. And I think, after all, that with all its defects, it’s something to be immensely grateful for.
HARRY KEYISHIAN: What’s remarkable about the Constitution is that it tends to, even if we’re thoughtless about it as a civilization, it tends to pull us back to certain standards. It’s as if it’s the magnet from which we won’t stray too far. And to me, one of the remarkable things about that document is that the words do mean something. And they do carry resonance in society. In the Nixon years it did and, obviously, crucial times in our history and so forth. And other times as well. We may stray, as with the internment of the Japanese in World War II and so forth. We may stray, but there’s a home to which we return.
BILL MOYERS: It says something, doesn’t it, that the framers in Philadelphia 200 years ago had you two in mind?
GEORGE HOCHFIELD: One is grateful to them.
BILL MOYERS: What if the police intruded in your bedroom? Would you go to court?
MAN: Yes, sir, I would.
BILL MOYERS: What if, as actually happened in a case I’ve covered, what if the police knock on the door and come into your bedroom? What would you do?
MAN: If they just barged right in? Find out why they’re there. I would feel that would be an infringement.
BILL MOYERS: You might go to court over that.
MAN: Breaking into your bedroom is only one possibility. I mean, if you let that go by they can do anything really. I mean, if you’re willing to accept it, it may happen. So I think that’s what they’re doing.
BILL MOYERS: Privacy in the bedroom was the issue in 1986 when the Supreme Court decided a case involving homosexuality in Georgia.
LAWRENCE TRIBE (ATTORNEY): What is at stake here is the general question of how sweeping a power government has to control the intimate details of every life in every bedroom in this country.
MICHAEL HOBBS (ATTORNEY): The issue in this case is whether or not there is a fundamental right under the Constitution to engage in this conduct, which is protected by the Constitution and from governmental interference. That is the crux. The crux of this case is whether or not that right exists.
BILL MOYERS: The Court upheld the Georgia law, making sodomy a crime. Gay communities responded angrily.
BROADCASTER: Police estimate the crowd at 1,000 strong, noisy and angry.
MAN: This is an asinine decision and it’s an idiotic decision. And, more than that, it threatens everyone’s rights.
MAN: They were incensed at Justice O’Connor for voting to uphold Georgia’s sodomy law in the Supreme Court ruling two weeks ago.
MICHAEL HARDWICK: I just cried. I just couldn’t believe that in this day and age they would make a decision that would turn me into a second-class citizen in the country that I’ve been raised in. And it was very bad.
BILL MOYERS: Michael Hardwick was living in Atlanta when the case began in 1982. Because he made no effort to conceal his homosexuality, he was known to police there as a practicing gay. He said this made him a target for harassment. He and a companion were in Hardwick’s bedroom early one morning when a policeman arrived to serve a summons and came into the room unannounced.
MICHAEL HARDWICK: When he cam into my bedroom the door was partially opened and he pushed it open. I saw the door open. I looked up, but I didn’t see him. And about 35 seconds went by and I looked up again and all of a sudden there was a police officer standing in my bedroom doorway.
BILL MOYERS: In uniform?
MICHAEL HARDWICK: In uniform. And I came up with a very logical question: “What are you doing in my bedroom?” And he said that I was under arrest. And I asked him –
BILL MOYERS: For?
MICHAEL HARDWICK: For sodomy.
BILL MOYERS: Did anybody ever tell you when you were there that sodomy was a crime in Georgia?
MICHAEL HARDWICK: No. I didn’t even understand what sodomy was.
BILL MOYERS: You didn’t?
MICHAEL HARDWICK: No.
BILL MOYERS: Nobody’d ever explained to you.
MICHAEL HARDWICK: No.
BILL MOYERS: Read the dictionary to you.
MICHAEL HARDWICK: No. Or the law.
BILL MOYERS: Do you think that if the other person in bed with you had been a woman when that policeman showed up, that you would have been arrested?
MICHAEL HARDWICK: No, probably it would have been a knock on the door and, “Excuse me, Mr. Hardwick” type of a situation. But because of what it was he kind of took it and ran with it.
BILL MOYERS: The policeman?
MICHAEL HARDWICK: Yeah. When they brought me to jail they made sure that they told everyone in the holding cells that I was in there for sodomy and that I should be able to find what I was looking for in there. There was somebody to get me out of jail there in an hour and it took 12 hours for them to get me out. And in the meantime they would change me from floor to floor, telling different guards in the jail that I was in there for sodomy and then they would, in turn, tell whoever they would put me in the holding cells with. And they told me that they were going to have fun with me in the pit.
BILL MOYERS: Who told you that?
MICHAEL HARDWICK: The guards. They said they were going to put me in the pit, which is where they put people that – they’re detoxifying them. And a few who are really, really drunk. And they put them in there until they sober up enough to deal with them. And they were talking about putting me in there and how much fun that was going to be. Every place that they put me, every cell they put me in, they had to tell the people that they were putting me in there with that I was in there for sodomy. It was a nightmare.
BILL MOYERS: What did the other prisoners do?
MICHAEL HARDWICK: They harassed me a lot.
BILL MOYERS: Verbally?
MICHAEL HARDWICK: Verbally and physically. And pushing me around and stuff. But, fortunately, I wasn’t raped or anything like that.
BILL MOYERS: Did any of the guards tell you, did any lawyer tell you, did any of the inmates tell you what sodomy was?
MICHAEL HARDWICK: By then I had a pretty good idea of what it was. By then I definitely knew. I mean, I had heard of sodomy before, but I always thought of sodomy as something like along the lines of bestiality or something, you know, an archaic law. I didn’t realize that in this day and age, you know, that there was laws against oral sex.
BILL MOYERS: Why did you decide to take this case to the Supreme Court?
MICHAEL HARDWICK: Because the whole experience itself was a nightmare and when I finally digested the whole situation, which took several days, a committee had reached me and asked me if I would be interested in doing –
BILL MOYERS: A team of lawyers?
MICHAEL HARDWICK: Yeah.
BILL MOYERS: From?
MICHAEL HARDWICK: From Atlanta, independent. And so he asked me just to think about it. I asked him what was involved and, you know, what risks I’d be taking. And my mother was there. And they told him that I was taking a chance of going to jail for 20 years if the judge decided to make an example of me.
BILL MOYERS: Did you talk to your mother about it?
MICHAEL HARDWICK: Yeah.
BILL MOYERS: What did she say?
MICHAEL HARDWICK: She said that she would be dead before she saw me outside of bars again if this thing went the wrong way. And –
BILL MOYERS: Did she want you to become a test case?
MICHAEL HARDWICK: No.
BILL MOYERS: She didn’t. She was afraid that you’d lose and –
MICHAEL HARDWICK: Yeah, she just heard the 20 years and that’s all that stuck in her head. And then after we talked about it a while, about two days went by and I called her and I said that I had decided to be a test case. And she said that she knew I was going to do it anyway. So after that she was very supportive.
BILL MOYERS: The state rarely enforced this law. It was so seldom that anybody was arrested or taken to court on it.
MICHAEL HARDWICK: There’s an average of ten arrests a month just in Atlanta on sodomy.
BILL MOYERS: Under the sodomy charge?
MICHAEL HARDWICK: Most of them are prostitution and public sex acts. But there is about ten arrests a month on the cause. And the thing is that as long as the law is on the books, a law enforcement authority can come into your room and say, “This is the law on the books.” And even though we don’t normally enforce it, if the law is on the books they can enforce it whenever they choose.
BILL MOYERS: You concede the right of the state, the right of the court, the right of the Constitution to be concerned about acts in public.
MICHAEL HARDWICK: Right.
BILL MOYERS: But you’re talking about something –
MICHAEL HARDWICK: I don’t want to see sexual acts in public myself. I don’t want to see, you know, a man and a woman, a man and a man, a woman and a woman. I don’t want to see them having sex. You know, I don’t think that people should be able to have sex. But in the privacy of your own bedroom in your own house, I think you should be able to do whatever you want, you know.
BILL MOYERS: There’s no other victim.
MICHAEL HARDWICK: There’s no other victim.
BILL MOYERS: Society is not offended except when there is a majority that finds, for religious reasons or other reasons, what you are doing an assault on its sensibilities.
MICHAEL HARDWICK: Yes, but then they understand that I’m not trying to assault their sensibilities. I’m simply trying to fulfill my purpose. I’m simply saying, “Leave me alone to live my life the way I feel I need to fulfill myself.” That’s all I’m asking. I’m not trying to offend anyone.
BILL MOYERS: So, Mr. Tribe, your lawyer. And before the Court he didn’t talk about homosexuality, he talked about privacy, the right to privacy.
MICHAEL HARDWICK: Right. Because that was the issue. It had nothing to do with homosexuality. The law on the books, the way that it’s stated, is any sexual organ to anal or sexual organ to oral or anal sex is sodomy. Period. It doesn’t say homosexual, heterosexual, whether you’re married, not married, a woman in the privacy of her own house with her husband having oral sex is committing a felony punishable to 20 years by the Georgia statute. And it’s still on the books as that. The Court tried to pass it off as a homosexual issue and directed towards homosexuality because they always start with a minority. But the fact is that if they read the law, the law has nothing to do with homosexuals. It has to do with sodomy. And it has to do with privacy. And that’s the issue.
BILL MOYERS: Michael, you say that your behavior, your conduct in the bedroom is a private matter. Nobody should care because you’re not affecting the public good. How does AIDS change that? Because it’s now being said that AIDS is a plague. It’s triggered by homosexual conduct and there is a public interest. The state has a legitimate concern for the public safety and, therefore, it is concerned about what happens in private between two adults.
MICHAEL HARDWICK: This law, this decision, this issue has nothing to do with the spread of AIDS because that is up to the individual. And that’s in heterosexual or homosexual communities, that it doesn’t matter. It’s time that everyone get wise to what the disease is and that there is a plague. And that there is ways of going around it. You know, you don’t have to, like, totally stop having sex and go into celibacy. You simply have to be careful and you simply have to know what is known about the disease. Unfortunately, there’s not enough known about the disease yet. But I think it’s time everybody pay attention to what is known and take responsibility.
BILL MOYERS: Justice Byron White wrote the majority opinion for the Court and he said, “The law is constantly based on notions of morality. And if all laws representing essentially moral choice are to be invalidated under the Constitution, the courts will be very busy indeed.” A question arises. Was homosexuality a choice you made?
MICHAEL HARDWICK: Yeah, it was. I’ve been heterosexual and am now currently homosexual. And the reason for that is simply because that is my needs.
BILL MOYERS: A need – you don’t consider it an immoral act.
MICHAEL HARDWICK: No, it’s not an immoral act. For me to love anyone else is not an immoral act. I mean, if I’m in the privacy of my own bedroom, with a consenting adult, which is what the case was, and we choose to, like, physically relate to each other, even if it’s just touching, it doesn’t matter what we’re doing. It’s nobody else’s business. And as far as the morality goes, my morality says it’s fine.
BILL MOYERS: But the majority, you see, was saying not that we’re telling you what you can or cannot do. We’re only saying that we cannot find in the Constitution the right to sodomy. And, therefore, the state has the right to regulate or not to regulate it, depending on each state. They weren’t saying you can’t do this, only that we can’t find a right to it in the Constitution. In fact, one of the things the Court said was, “We’re not in the business of creating rights not found in the Constitution.”
MICHAEL HARDWICK: I disagree. I disagree. I 100 percent believe that this government, this system, the Constitution, the federal courts, the Supreme Court are all here to protect my rights as an individual. And I believe that the Constitution does protect my rights as an individual and the right to be left alone.
BILL MOYERS: I’m intrigued by one of the statements in Justice Powell’s concurring opinion, in which he said that if you had been sentenced under this law, and you could have gotten up to 20 years under Georgia law, he might have another – take another look at it because he thinks that might constitute “cruel and unusual punishment,” which is forbidden.
MICHAEL HARDWICK: Well, putting me in jail for 12 hours and not allowing me to get out and introducing me to everyone for being in there for sodomy is not “cruel and unusual punishment?” Right.
BILL MOYERS: You’d tell him that it is?
MICHAEL HARDWICK: I would tell him that it was. In fact, I would even go into detail if he chose to – of exactly how cruel it was and is.
BILL MOYERS: What does it say to you that the Constitution can come down to a single vote among nine justices?
MICHAEL HARDWICK: I think it’s a great system. I really do. You can still –
BILL MOYERS: Despite what you’ve – ?
MICHAEL HARDWICK: Despite what happened.
BILL MOYERS: Despite the fact that you lost?
MICHAEL HARDWICK: Yeah. I know that the system works. And when I set out to do this, I never necessarily thought I was going to go to the Supreme Court. And I definitely didn’t think I was going to lose at the Supreme Court. But I always had in the back of my mind that what I was setting out to do was to try to change the law. Not necessarily to change it though. Even if I could just lay a foundation for future change. And I think that has definitely been done.
BILL MOYERS: So when the Preamble of the Constitution says, “We the people,” it includes Michael Hardwick.
MICHAEL HARDWICK: It sure does.
BILL MOYERS: Even though the Court just said –
MICHAEL HARDWICK: And it still does. I am “the people.” You know, I am part of “the people.”
BILL MOYERS: We often forget that democracy is not the gift of the gods. It is hard won by men and women who stand up and say, “Enough! We have our rights too.” The philosopher George Santayana once described such people as “rabid apostles of liberty who want freedom for themselves to be just so.” They’re not always right. They don’t always win. And they’re not always likable. They break the china and rattle the cages of conformity. But what would America be without them? They keep the high and mighty on their toes and the majority on notice. They breathe life into the Constitution and bring us back to fundamentals. Freedom of the press, even for those who don’t own the paper. Freedom of speech, even for those without a microphone. Freedom of religion, even for those whose god is not our own. And freedom of assembly, even for the party of one. They remind us, above all, that Judge Learned Hand was right. “Liberty lies in the hearts of men and women. When it dies there, no Constitution, no law, no court can save it.” I’m Bill Moyers.
HARRY KEYISHIAN: What’s remarkable about the Constitution is that it tends to pull us back to certain standards. It’s as if it’s the magnet from which we won’t stray too far.
MICHAEL HARDWICK: I believe the Constitution does protect my rights as an individual and the right to be left alone.
LAWRENCE ROTH: The state has no right to mandate prayer. The state has no right to do that and the Constitution is on my side.
GEORGE HOCHFIELD: Think of the lesson in the value of being brave, even if you didn’t feel very brave. Still, it did take some courage. That has stuck with me ever since.