*1 ALABAMA, OF et al. GOVERNOR WALLACE, JAFFREE et al. 4, 1985* June 1984 Decided Argued December
No. 83-812. al., appeal et on al. also et Smith 83-929, No. *Together Jaffree court. from same
Stevens, J., Court, Brennan, opinion delivered the in which Marshall, Blackmun, Powell, JJ., joined. Powell, J., and filed post, p. concurring opinion, J., O’Connor, opinion 62. an concur- filed judgment, post, p. J., in post, ring Burger, J., p. 84, White, 67. C. post, p. 90, post, p. Rehnquist, J., 91, dissenting opinions. and filed Baker, Jr.,
John S. in the cause for argued appellants both cases and filed briefs for in Wallace appellant No. 83-812. Thomas O. Kotouc and Thomas F. Parker TV filed briefs for No. 83-929. appellants Deputy Solicitor General Bator the cause for the argued as amicus curiae United him States reversal. With urging Attorney Lee, on the brief were Solicitor General Assistant Reynolds, McConnell, General Michael Brian K. W. and Landsburg.
Ronnie L. Williams the cause and filed a brief for argued † appellees. † Briefs of amici curiae urging reversal were filed for the of Dela State III, Oberly ware et al. Charles M. by Fred Attorney Delaware, General of Silverman, Kirk-Ryan S. H. Barbara Solicitor, Susan Mac State and and
Donald, Corbin, K. Robert Deputy Attorneys General, Attorney General Pearson, Arizona, Linley E. William J. Attorney Indiana, General Guste, Jr., Attorney Turpén, Michael C. Louisiana, Attorney General Baliles, and Gerald L. Oklahoma, Attorney Virginia; General of General of Lieberman, Joseph I. by Attorney General, for State of Connecticut Cohn, Riddle; Henry S. Nardi Attorney General, Clarine Assistant and the Court. the opinion delivered Stevens Justice constitutionality of this litigation, early stage anAt (1) en- 16-1-20, § questioned: statutes was Alabama three of silence period 1-minute which authorized acted (2) 16-1-20.1, § enacted meditation”;1 “for schools all public “for meditation of silence a period which authorized in 1982, (3) enacted §16-1-20.2, voluntary prayer”;2 in a students” “willing to lead teachers authorized which Creator . . . the God to “Almighty prescribed the world.”3 Judge Supreme Rice; E. for Christian Charles by for Judicial Studies
for the Center Ericsson; E. Montgomery D. Forest Samuel Society et al. Legal Whitehead; for the Knicely and John W. James J. the Freedom Council *3 Majority, Crump; for the Moral by David of America Legal Foundation Murren; and for Winston Bentley Philip Ball J. William Inc., by and J. Mainini. Anderson et al. C. Alfred for the American were filed amici curiae urging affirmance Briefs of D, Neubome, Novik, John Sex- Burt Jack et al. Liberties Union Civil Dershowitz; Congress et al. ton, Jewish Z. for the American and Nathan Sinensky; for -Stem, P. Finger, Jeffrey and Justin J. by Marc D. Twardy, A. Weicker, Jr., by Stanley Jr. Lowell P. 1984)reads follows: (Supp. § 16-1-20 Alabama Code through the first day in the class each first “At the commencement the room in which charge in schools, teacher in grades sixth all silence, not to exceed period of that a held shall announce each such class is any meditation, during duration, for shall be minute in observed one engaged in.” no activities period shall be maintained such silence § is unconstitutional. any 16-1-20 claim Appellees have abandoned 2. Appellees Brief for See 1984) provides: (Supp. §16-1-20.1 Alabama Code in all day grades in all of each of the first class commencement “At the held class is in which each in of the room charge teacher public schools the minute duration not to one period exceed may announce that silence any during such voluntary prayer, and meditation or shall be observed engaged in.” shall no other activities period 1984) provides: (Supp. § 16-1-20.2 Code Alabama any public educational henceforth, any professor or teacher “From the Lord God Alabama, recognizing that the state institution within may lead any class, may pray, or one, homeroom beginning preliminary-injunction stage At the of this case, Dis § distinguished trict Court 16-1-20 from the other two stat “nothing wrong” utes. It then held that there was with §§16-1-20.1 §16-1-20.4 but that and 16-1-20.2 were both purpose invalid because the sole of both was “an effort on the part encourage of the State of Alabama to activi ty.”5 After the trial on the the District merits, Court did change interpretation its of these statutes, two but held they opinion, were constitutional in its because, Ala power bama has the to establish a state if it chooses to do so.6 Appeals agreed
The Court of with the District Court’s interpretation § initial of both 16-1-20.1 and §16-1-20.2, and held them both unconstitutional.7 haveWe already Appeals’ holding respect affirmed the Court of §16-l-20.2.8 appellees questioned have not Moreover, § holding ques- that 16-1-20 is valid.9 Thus, the narrow tion for decision is whether §16-1-20.1, which authorizes a period voluntary prayer,” of silence for “meditation or is a willing in prayer, willing students lead the following students prayer to God:
“Almighty God, You alone are acknowledge our God. We You as the Supreme Judge May justice, truth, Creator and of the world. Your Your peace day and Your countrymen, abound this the hearts of our in the government, sanctity counsels of our in the of our homes and in the class- *4 in rooms of our schools the name of our Lord. Amen.” 4 any The court stated that it potential infirmity § did not find in 16-1-20 prescribes nothing because “it is a statute which more than a child in school right shall have the in nothing wrong meditate silence and there is with a James, quietness.” Supp. 727, little meditation and 544 F. 732 Jaffree (SD 1982). Ala. 5Ibid. 6 County, Supp. v. Board School Comm’rs Mobile 554 F. Jaffree (SD 1983). 1104, 1128 Ala. 7 (CA11 1983). 705 F. 2d 1535-1536 8 (1984). Jaffree, Wallace 466 U. S. 1, supra. See n. respecting within the mean- law the establishment of ing of the First Amendment.10
I—I Appellee County, Ishmael Jaffree is a resident of Mobile May complaint 28,1982, Alabama. On he filed a on behalf second-grade three of his minor of them children; two were kindergarten. and the third then in The com- students was plaint County members of the Board, named Mobile School plaintiffs’ various school and the minor officials, three teach- complaint alleged appellees ers as defendants.11 The that declaratory judg- brought “seeking principally the action injunction restraining an ment and the Defendants and each maintaining allowing of them from or the maintenance of regular religious prayer religious services other forms of County in observances the Mobile Public Schools violation applicable of the First Amendment as made to states the Fourteenth Amendment to the United States Constitu- complaint alleged tion.”12 The further that two of the chil- subjected dren had been to various acts of indoctri- beginning year September, nation “from the school daily that the defendant teachers had “on a 1981”;13 basis” led saying prayers their classes certain unison;14that exposed peer minor children were to ostracism from their group they participate;16 class if did not members and that repeatedly unsuccessfully requested Ishmael Jaffree had but stopped. original that the devotional services be plaint com- made no reference to Alabama statute. Amendment, course, long The Establishment Clause of the First has Education, to the States. Everson v. Board applicable
been held U. 15-16 S. 11App. 4-7.
12 Id., at 4. aId., at 7.
14 Ibid.
16 Id., at 8-9. *5 appellees
On June 4, complaint 1982, filed an amended seeking class they certification,16and on June 30, 1982, filed complaint a naming second amended the Governor of Ala- bama and various state officialsas additional defendants. In appellees that challenged amendment the the constitution- ality of three Alabama statutes: §§16-1-20, 16-1-20.1, and 16-1-20.2.17 August
On 2, 1982, the evidentiary District Court held an hearing appellees’ on preliminary injunction. motion for a hearing, At that State Senator Donald G. Holmes testified “prime sponsor” that he was the of the bill that was enacted § explained 1981 as 16-1-20.1.18 He that the bill was an voluntary prayer “effort to public return to our schools it ... beginning step right a and a Apart in the direction.”19 purpose voluntary from the prayer to return to school, unequivocally Senator Holmes testified that he had “no other purpose in hearing, mind.”20 A week after the the District preliminary injunction.21 Court entered a The court held appellees likely prevail were to on the merits because §§ the enactment of 16-1-20.1 and 16-1-20.2 did not reflect a clearly purpose.22 secular
16 Id., at 17.
17 Id., 1, at 21. supra. 3, See nn.
18 App.47-49.
19 Id., at 50.
20 Id., at 52.
James,
(SD
1982).
In its conclusions of the District Court re lengthy law, viewed a number of of this Court opinions interpreting § sponsoring Holmes testified that his 16-1-20.1 was to return voluntary prayer public provide schools. He intended children opportunity sharing spiritual heritage in their of Alabama and of (1981). country. The Fifth this See Alabama Senate Journal 921 Circuit explained ‘prayer primary religious activity has is a in itself. . . .’ (5th 1981). 897, Treen, Karen B. F. 2d Cir. The state employ religious Abington a means its schools. School District v. (1963). Schempp, [374 224] U. S. Since these statutes do not reflect a clearly purpose, remaining two-parts secular no of the consideration necessary. Lemon test is §
“The enactment of Bill 8 an [§ 16-1-20.2] Senate and 16-1-20.1 is effort part encourage religious activity. on the of the State of Alabama to a though permissive form, Even these statutes are it is nevertheless state respecting Vitale, religion. Engel involvement an establishment of [370 Thus, binding precedent U. 430] S. which this Court is under duty plaintiffs prevail to follow indicates the substantial will likelihood on Supp., the merits.” 544 F. at 730-732. 23The District wrote: Court Boyd, early September 16,1981,
“Defendant as led her class at E. R. singing following phrase: Dickson “ great, good, ‘God is God is “ food, ‘Let us thank him for our “ fed, ‘bow our heads we all are “ daily ‘Give us Lord our bread.
“‘Amen!’ phrase daily throughout “The recitation of this continued a on basis year. 1981-82 school Craighead
“Defendant Pixie Alexander her in reciting has led class at the following phrase:
Establishment Clause of First Amendment, and then em barked on a fresh examination of the question whether First Amendment imposes any barrier to the establishment of an official religion by the State of Alabama. After review ing length what it perceived newly discovered historical evidence, District Court concluded that “the establishment clause of the first amendment to the United States Constitution does not prohibit the state from estab lishing religion.”24 In a separate opinion, the District *7 Court dismissed appellees’ to challenge the three Alabama statutes because of a failure to state any claim for which relief could be granted. The court’s of dismissal this challenge was also based on its conclusion that the Establishment Clause did not bar the States from establishing a religion.25
“ great, ‘God is good, God is
‘“Let us thank him our for food.’ “Further, defendant Pixie Alexander had her class recite the following, which is known the Lord’s Prayer: “ Father, ‘Our which are in heaven, be Thy hallowed Thy name. king- Thy dom come. will done on earth as it is in heaven. Give day this us daily our bread and forgive us our forgive debts as we our debtors. And lead us not temptation into but deliver us from evil for kingdom thine is the power the and and glory the forever. Amen.’ “The phrases recitation of these continued daily on a throughout basis the 1981-82 year. school
“Ms. Green admitted that she frequently leads her class in singing the following song: “ ‘For health strength and daily food, and praise Thy we name, Oh Lord.’ “This activity throughout continued the year, school despite the fact that Ms. Green knowledge had that plaintiff did not want exposed his child to the song.” above-mentioned v. Board School Comm’rs Jaffree County, Mobile 554 Supp., F. at 1107-1108. 24 Id.,at 1128. 25 James, (SD F. 1130, 554 Supp. 1983). 1132 Ala. Jaffree The Dis opinion trict Court’s was January on 14, announced 1983. February On 11, 1983, in Powell, Justice capacity his as Circuit Justice for the Elev Circuit, enth stay entered a prevented which effect the District Court Appeals sur the two cases; consolidated The Court Appeals noted that this prisingly, The Court it reversed. argu rejected the had historical considered had Court August entered in injunction that had been dissolving preliminary from proceedings: accurately prior summarized Powell 1982. Justice 1981, Beginning in the fall of situation, briefly, follows: quite is as “The regular in their prayers applicants’ schools conducted in the minor teachers time, Prayer. At the an including of the Lord’s classes, group recitations ‘for period of silence meditation provided a one-minute statute Alabama pub- day’s classes of each voluntary prayer’ at commencement 1982). (Supp. In §16-1-20.1 elementary schools. Code lic Ala. teachers to lead their public school permitting enacted a statute Alabama prayer. Ala. Acts 735. classes schools, filed suit to en- public in the objecting “Applicants, challenge complaint their They amended join later the activities. granted hearing, the District Court After applicable state statutes. (1982). It James, Supp. 544 F. injunction. preliminary Jaffree Court, id., decisions of this recognized that it was bound ‘obligated enjoin the enforcement’ of was decisions it that under those id., statutes, at 733. however, merits, the District on the Court subsequent “In decision its v. Board School Commissioners conclusion. a different reached Jaffree recognized that Supp. again It County, F. Mobile teachers, classes led were issue, given school *8 prayers at as Amendment that Clause First violative of the Establishment by The District Court neverthe- this Court. had been construed Clause Id., at 1128. Supreme erred.’ Court has less ‘that the United States ruled injunction. complaint and dissolved the It therefore dismissed in finding was correct that the District Court “There can be little doubt part program a school is unconstitutional conducting prayers as of that (1962), Engel Vitale, 421 In U. S. under this Court’s decisions. 370 Amendment, Clause of the First made held that the Establishment Court Amendment, prohibits a State applicable to the the Fourteenth States Term, following authorizing prayer in the schools. The from Schempp, Curlett, Abington District v. 374 Murray v. decided School (1963), a school district’s explicitly the Court invalidated rule U. 203 S. open- reading Prayer the Lord’s of a school’s providing part for the exercises, participation in those exercises ing despite the that was fact voluntary. decisions, foregoing they until this reconsiders the “Unless and Court obligated my view, In was this case. the District Court
appear to control ments that the District Court found persuasive, and that District Court had misapplied the doctrine of stare decisis.26 The Court of Appeals then held that the teachers’ activities violated the Establishment Clause of the First Amendment.27 With respect §to 16-1-20.1 § and 16-1-20.2, the Court of Appeals stated that “both statutes advance and encourage religious activities.”28 The Court of Appeals then quoted with approval the District Court’s finding § 16- 1-20.1, and §16-1-20.2, were efforts “‘to encourage a reli gious activity. Even though these statutes are permissive in form, it is nevertheless state involvement respecting an establishment of religion.’”29 Thus, the Court of Appeals concluded that both statutes were “specifically the type which the Supreme Court addressed Engel [v. Vitale, 370 U. 421 (1962)].”30 S. to follow them.” v. Board Jaffree School Comm’rs Mobile County, 459 U. 1314, S. 1315-1316 (1983). 26The Court of Appeals wrote: “The stare decisis doctrine and its exceptions do not apply where a lower court is compelled to apply the precedent of a higher court. See 20 Am. Jur. 2d § Courts (1965).
“Federal district courts and circuit courts are bound to adhere to the con
trolling decisions of the Supreme Court. Hutto v. Davis, [454 U.
S.
(1982)
375]
....
Justice Rehnquist emphasized the importance of
precedent when he observed that ‘unless we wish anarchy
prevail
within
judicial
federal
system,
precedent
of this Court must be
followed
the lower federal courts no matter
misguided
how
the judges of those
courts
think it to be.’ Davis, [
I—i hH judg- of Appeals’ affirmance of the Court Our unanimous to com- unnecessary makes it § 16-1-20.2 ment concerning conclusion remarkable the District Court’s ment at on length to Ala- no obstacle imposes the Federal Constitution that analyzing Before of a state religion. bama’s establishment it is nevertheless us, to is presented issue precise in our constitu- embedded recall how firmly appropriate several that the States is the proposition jurisprudence tional individual freedoms restrain the power have no greater to the estab- section “amounts legislation admitted that that of the nents § 16-1-20.1: this comment on religion,” the court added of a state lishment (Ala. § 16-1- prayer statute Code meditation or objective “The recognized 20.1) This fact was religion. the advancement was also preliminary relief where it was estab- hearing for the district court at public prayer return to the of the statute was that the lished intent fact and the 731. The existence of this James, Supp. F. schools. religious activities. the state in obviously involves inclusion of 1982). (MD Tenn. This demon- McElrath, Supp. 1161 548 F. Beck part of the Alabama legislative purpose on the lack of strates a secular primary advancing has the effect Additionally, the statute Legislature. from simple or silence is barred meditation imply that religion. We do not the advance- participate cannot the state schools; hold that we any guise, including medi- through teacher-led ment of activities us; it is the concerns activity itself that It is not the tation. Thus, elements the existence these scrutinize. activity we shall establishment violation 16-1-20.1 hold section we also require that Id., at clause.” 1535-1586. curiam). 1983) (CA11 (per F. 2d 614 31 713
49 protected by the First Amendment Congress than does of the United States. plain
As is from its text, the First Amendment was adopted power to curtail the Congress of to interfere with the individual’s freedom to worship, believe, to express and to himself in accordance with the dictates of his own cons cience.32 Until the Fourteenth Amendment was added to the Constitution, the First Amendment’s restraints on the power exercise of simply federal apply did not to the States.33 But when the Constitution was prohibit amended to depriving any State from person liberty proc without due ess of law, that imposed Amendment the same substantive limitations on power legislate States’ that the First always Amendment imposed had Congress’ on the power. This Court has confirmed and endorsed elementary this prop osition of law again.34 time and time
32The First provides: Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the speech, freedom of or of press; or the right of people peaceably to assemble, and to petition the Government for a redress grievances.” 33See Permoli v. Municipality No. 1 the City New Orleans, 3 How. 589, 609 34See, g., e. Wooley Maynard, v. 705, (1977) 430 U. S. 714 (right to refuse endorsement of an offensive motto); state Terminiello v. Chicago, 1, 337 U. (1949) S. 4 (right to speech); free Virginia West Board Educa tion v. Barnette, 319 U. 624, S. (1943) 637-638 (right to refuse partici pate in a ceremony that offends one’s conscience); Cantwell v. Connecticut, 310 296, (1940) U. S. 303 (right to proselytize one’s religious faith); Hague CIO, 307 496, U. S. (1939) (opinion 519 J.) of Stone, (right to assemble peaceably); Near v. Minnesota ex rel. Olson, 283 697, (1931) U. S. 707 (right publish unpopular an newspaper); Whitney v. California, 274 357, (1927) U. S. 373 (Brandeis, J., concurring) (right to advocate the cause of Communism); Gitlow v. New York, 268 U. 652, (1925) S. 672 (Holmes, J., dissenting) (right to express an unpopular opinion); cf. Abington School District v. Schempp, 374 203, U. S. 215, n. (1963), where the Court ap provingly quoted Board Education v. Minor, Ohio St. (1872), which stated: “The great bulk of human affairs and human interests is left any free government to individual enterprise and individual action. Religion is
Writing Connecticut, Cantwell for a unanimous Court (1940), explained: Roberts Justice 310 U. S. as construed statute, . hold that
. We liberty deprives appellants, applied them of their to the *11 process of of law contravention due without concept of The fundamental Fourteenth .Amendment. liberty the lib- in that Amendment embraces embodied by guaranteed Amendment. The First the First erties Congress law shall make no declares that Amendment religion prohibiting respecting of an establishment The Amendment has thereof. Fourteenth free exercise incompetent legislatures as of states as rendered Congress inhi- enact such laws. The constitutional to subject legislation on the of has a double of bition by compulsion aspect. law the one it forestalls hand, On any any practice acceptance form of creed or the of of the worship. freedom to ad- Freedom of conscience and worship religious organization or form of here to such law. choose cannot be restricted the individual safeguards it the free exercise of the hand, the other On religion.” form of chosen is but one case which the Court
Cantwell, course, freedom of conscience as the has identified the individual’s liberty in the First that unifies the various Clauses central Enlarging theme, on this Amendment.35 The Jus Chief recently wrote: tice interests, legitimate eminently lying outside the true and one of these province government.” Massachusetts, (1944), in Prince v. 158, 164 321 U. S. example, For the Court wrote: appellant seeks for freedom of conscience broader position
“If
this
mind, may
it
freedom of the
be doubted
protection than for
given higher place than
by the First Article can be
great
insured
liberties
position in our basic scheme. Schneider preferred
All have
the others.
Connecticut,
State,
296. All are in-
Cantwell
147;
310 U. S.
308 U. S.
are, in
Differences there
them and
the modes
together.
there
terwoven
begin
“We
proposition
with the
right
thought protected
freedom of
by the First Amendment
against state action
right
includes both
speak
to
freely
right
and the
to
speaking
refrain from
at all. See
Board Education v. Barnette,
“The Court in
supra,
Barnette,
was faced with a state
required public
statute which
partici
school students to
pate
daily public
by honoring
ceremonies
flag
both
*12
with words and
gestures.
traditional salute
In overrul
ing
prior
its
decision in Minersville District v. Gobitis,
(1940),
instrument the so, In doing finds unacceptable. he of view cal point it which spirit intellect and of ‘invades the sphere State to our Constitu- Amendment the First is the purpose Id., at 642.” control.’ all official from reserve tion to Maynard, Wooley 705, 714-715 430 U. S. from to refrain the right to speak the right
Just as con of a broader components complementary are speaking the individual’s so also mind, freedom of individual cept his counterpart the own creed choose his to freedom the creed established accepting from refrain to right merely right that this thought it was At one time majority. another, over of one Christian sect the preference proscribed of the for the conscience equal respect not require would but faith a non-Christian the adherent atheist, or infidel, the underlying prin when But or Judaism.36 as Islam such litigation, crucible of examined has been ciple Story Joseph wrote: 36 Thus constitution, adoption of “Probably at the time Amendment], gen- [First it, consideration now under amendment Christianity ought was, America sentiment eral, if the universal not incompatible state, so far as from the was encouragement to receive worship. conscience, freedom of and the rights private with the policy to of state to make it a matter religions, and level all An attempt disapprobation, indifference, have created universal would hold all utter on the Constitu- Story, Commentaries indignation.” J. if not universal omitted). (1851) (footnote 1874, p. § tion of United States Story volume, continued: In the same countenance, much was, less not to amendment object of the “The real *13 Chris- infidelity, by prostrating Judaism, Mahometanism, or advance, or sects, prevent and to among rivalry Christian all tianity; to exclude but hierarchy the establishment, give to a should which national ecclesiastical It cut means government. thus the national exclusive patronage off of (the ages,) and pest vice and religious persecution, of of former of had religion, which matters conscience in rights subversion of of of present Apostles to the days of the from the upon almost trampled been supplied). 1877, (emphasis Id., § age. ...” at Court has unambiguously concluded that the individual free dom of conscience protected by the First Amendment em braces the right to select any religious faith or none at all.37 This conclusion derives not support from only interest respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs of worthy respect are the product of free and voluntary choice by the faithful,38 37Thus, in Everson v. Board Education, S., 330 U. at the Court of stated: “The ‘establishment religion’ of clause of First Amendment means least this: Neither a state nor the Federal Government up can set a church. pass Neither can laws which aid religion, one aid religions, all prefer one religion over another.” (the Id., at 18 First “requires Amendment the state to be a neutral in its relations groups believers and non-believers”); Abington School Schempp, (“this District v. S., 374 U. at 216 rejected Court has un- equivocally the contention that the Establishment Clause only gov- forbids preference ernmental of one religion another”); (“The over id., at 226 place society our one, an exalted through long achieved tradi- tion of home, reliance on the the church and the inviolable citadel individual heart and mind. We have come to recognize through ex- bitter perience that it is not within power government to invade that citadel, whether its or effect be to oppose, aid or to advance or retard. In the relationship between man and religion, the firmly State is position committed to a neutrality”); Torcaso Watkins, 367 U. S. (1961)(“We repeat again reaffirm that neither a State nor the Fed- eral Government can constitutionally person force a profess ‘to a belief or in any religion.’ disbelief Neither can constitutionally pass impose laws or requirements which religions all aid as against non-believers, and neither can religions aid those based on a belief in the existence of God against as religions those beliefs”). founded on different 38In his “Memorial and Against Remonstrance Religious Assessments, 1785,” James wrote, Madison part: “1. Because we hold it for a fundamental truth, undeniable ‘that Re- ligion or the duty which we owe to our Creator [Manner and the of dis- charging it, only can be directed reason conviction, and] force or violence.’ Religion then every man must be left to the conviction and conscience of every man; it right and is the every man to exercise it these right dictate. This is in its nature an right. unalienable It is *14 political recognition the fact that the interest from and beyond among forestalling intolerance intolerance extends among “religions” even intolerance sects—or Christian —to encompass the disbeliever and the uncertain.39 intolerance of men, depending only on the unalienable; opinions of evidence because minds, the dictates of other men: cannot follow contemplated their own men, duty right towards is a also; what is here a unalienable because It is duty every man to render to the Creator It is the the Creator. towards acceptable to him. . . . homage, only, as he believes to be and such such right Religion, no man’s is in matters of maintain therefore that We Religion wholly Society, and that by the institution of Civil abridged exempt cognizance. from its experiment on our lib- Because, proper take alarm at the first it is “3. duty citizens, the first and prudent jealousy to be
erties. We hold this freemen of of the late Revolution. The noblest characteristics [the] one of strengthened by exer- usurped power had itself not wait till America did They question precedents. saw all the conse- cise, entangled the consequences by denying the they avoided the principle, in the quences much, forget it. does lesson too soon to Who principle. revere this We Christianity, authority in exclu- which can establish not see that the same any particular the same ease Religions, establish with sion of all other Complete Madison Christians, in of all other Sects?” sect of exclusion (S. 1953). Padover ed. 299-301 (1962) (“It is neither sacri- Vitale, Engel also 370 U. S. See separate government this coun- legious antireligious say that each nor writing sanctioning prayers or official try stay out of the business of should people to the themselves and to purely religious function and leave that religious guidance”). people for those the choose to look teaching history, rather explained, it is the opinion As the Barnette motive, supports this quality any appraisal than of State’s duty respect freedoms: basic support end uniformity sentiment of some “Struggles to coerce waged by many good country have been thought to their time and essential relatively phenomenon recent but men. Nationalism is a as well as evil security, territorial places the ends have been racial or at other times and plans saving souls. As dynasty regime, particular support of a unity failed, on its attain have those bent and moderate methods to first ever-increasing severity. govern- As accomplishment must resort to an unity greater, so strife more becomes becomes pressure mental toward Probably deeper of our unity no division to whose it shall be. bitter as necessary finding from it proceed provocation from than people could *15 Virginia eloquently in stated Board As Justice Jackson West (1943): Education v. 319 U. Barnette, 624, S. “If star in our constitutional con- there is fixed high petty, pre- it that no or can stellation, official, is politics, nationalism, scribe what shall be orthodox religion, opinion or other matters of or force citizens by confess word or act their faith therein.” Congress of no less than the Alabama, State respect
United must that basic truth. States,
I II upon has been called to construe the When Court Clause, of the Establishment it has examined the breadth developed period many years. Thus, criteria over a (1971), Kurtzman, 602, Lemon v. 403 U. S. 612-613 we wrote:
“Every analysis begin consider- this area must with developed by the cumulative criteria the Court ation of many years. may gleaned over Three such tests statute must have a secular First, from our cases. principal primary legislative purpose; second, its or nor inhibits effect must be one that neither advances religion, Allen, 236, Board Education v. 392 U. S. (1968);finally, ‘an excessive the statute must not foster program public what doctrine and whose educational officials to choose futility of at- compel youth embracing. to unite in Ultimate such shall compel every lesson of such effort from the tempts to coherence is the Christianity pagan unity, stamp out as a disturber of its Roman drive dynastic unity, Inquisition, as a means to Siberian unity, failing our as a means to Russian down to the fast efforts of exiles begin Those who coercive elimination of present totalitarian enemies. exterminating Compulsory uni- find themselves dissenters. dissent soon opinion only unanimity graveyard.” fication of achieves S., at 640-641. U. (“a Vitale, S., Engel government at 431 union of also 370 U.
See destroy degrade religion”). government tends to and to [v. religion.’ Tax entanglement Walz government (1970)].” 397 U. S. Comm’n, impli plainly most that is three criteria these first of It is the recog correctly Court As the District case. this cated nec third criteria of the second no nized, consideration purpose.40 clearly a secular essary not have does if statute part though that is motivated a statute For even g., satisfy e. criterion, see, first religious purpose Schempp, 296-303 374 U. S. Abington District School concurring), (1963) Amendment the First J., (Brennan, entirely if it is must be invalidated requires that a statute *16 religion.41 purpose by to advance motivated appropriate ask purpose it is applying test, the In purpose or dis- endorse government’s is to actual “whether approve to that religion.”42 the answer case, In this of only provides us dispositive. the record not question For reveals it also unambiguous but answer, affirmative an any § was not motivated 16-1-20.1 of enactment that the no had secular purpose clearly statute indeed, secular — purpose.
IV §16-1-20.1, Senator sponsor the bill that became The legislative appar- into inserted Holmes, Donald record— 40 22, supra. n. See 41 (O’Con id., (1984); at 690 680 Donnelly, 465 U. S. Lynch v. See Marshall, (Brennan, J., joined by id,. 697 concurring); at nor, J., Allen, 463 U. S. dissenting); Mueller v. Stevens, JJ., Blackmun, Graham, Vincent, Stone v. 271; S., U. at 454 Widmar (1983); v. 388, 394 curiam); Walter, (1980) 433 U. (per Wolman v. S. 39, 40-41 449 U. S. (O’Connor, J., concurring) S., at 690 Donnelly, U. 42 Lynch actual government’s Lemon test whether (“The asks prong of the purpose asks prong effect religion. The disapprove or purpose is to endorse under practice purpose, government’s actual whether, irrespective af disapproval. An message of conveys a endorsement review fact challenged practice render the question should to either firmative answer invalid”).
ently without dissent —a statement indicating that the legis lation was an “effort to return voluntary to the prayer” schools.43 Later Senator Holmes confirmed this be purpose fore the District Court. In response to the question whether he had any for the purpose legislation other than returning voluntary prayer to public schools, he stated: I “No, did not have no other purpose mind.”44 The State did not present evidence of secular purpose.45 indicated, pertinent statement part: “Gentlemen, by passage of this bill Legislature Alabama our chil- dren in this will have opportunity state sharing spiritual heri- tage of this state country. and this The United States well as the State of Alabama by people was founded who believe in I God. believe this effort to return voluntary prayer to our public schools for its return to us to the original position of the Constitution, writers of the philosophies this local and beliefs hundreds of urged my Alabamians have support continuous permitting prayer. school coming Since to the Senate I Alabama have worked legislation hard this on accomplish the return voluntary prayer in our public schools and return to the basic App. moral fiber.” added). (emphasis 44 Id.,at 52. The District Court and the Appeals agreed Court of § of 16-1-20.1 was part “an effort on the State Ala bama encourage religious activity.” James, 544 F. Supp., Jaffree 732; 2d, 705 F. at 1535. presented The evidence to the District Court express elaborated on (then admission of the Governor of Alabama Fob *17 James) that §16-1-20.1 enactment of the “clarify was intended to [the prayer State’s] intent to part have daily of the activity,” classroom 32(d) compare 24-25) Complaint ¶ Amended Second (App. with Governor’s 32(d) § 40); Answer to (App. “expressed and that the legislative purpose in (1981) enacting Section 16-1-20.1 voluntary to ‘return was to schools,’” compare ¶¶32(b) Complaint (c) 24) Second Amended (App. and 32(b) (c) 40). ¶¶ Answer Governor’s to (App. and
45 Appellant George Governor argues §16-1-20.1 C. Wallace now that “is best permissible understood as a religion” accommodation of and that viewed even in test, terms of the Lemon the accept conforms “statute to able constitutional criteria.” Appellant 5; Brief for Wallace see also Brief (§ Appellants for et al. Smith 39 16-1-20.1 “accommodates the free exercise of religious the beliefs and free speech exercise of and belief of those af id., fected”); at arguments 47. These seem to theory be on the based that the free of of exercise some of the State’s was citizens burdened in intent contained legislative of evidence unrebutted The of the sponsor testimony of the in and record the legislative relationship the consideration a confirmed is § 16-1-20.1 were that measures two other and the statute this between the found that Court District The this case. considered nonsecular common, had 1982 sequel its 1981 statute enact- later of the character religious wholly The purpose. the differences When text. from its evident plainly ment is are 16-1-20, § 1978 predecessor, and its § 16-1-20.1 between has the 1981 statute that the clear equally is examined, it character. religious wholly same § 16— between differences textual three only are
There to only applies (1) statute the earlier §16-1-20: 1-20.1 to all applies §16-1-20.1 six, whereas through one grades “shall” word whereas uses the (2) statute the earlier grades; refers (3) earlier statute the “may”; word the uses § 16-1-20.1 as amicus States, appearing United was enacted. statute before is un acknowledges “it that candidly appellants, support curiae made be could strong Free Exercise claim contexts likely that most day.” during the school set aside prayer must for personal time for the is no basis Curiae 10. There as Amicus for United States Brief accommodating the means “is a §16-1-20.1 suggestion diminishing way without needs of students and meditative case, Id., 11. this at In atmosphere.” neutrality secular own school’s § there was of 16-1-20.1 the enactment time of that at the undisputed it is one silently praying for from students impeding practice governmental no to need thus, was no sehoolday; there of each beginning minute governmental any general from exempt individuals toor “accommodate” Free interpreting the cases of our the dictates because requirement Employ Board, Indiana v. Review g., Thomas See, e. Exercise Clause. Verner, U. S. (1981); Div., Sherbert Security S. ment U. S., at 226 Schempp, 374 U. District Abington School (1963); see also action use of state clearly prohibits (“While Clause Free Exercise that a meant anyone, it has never exercise deny rights free beliefs”). its practice the State machinery use the majority could of the enactment time eyes at the appellants’ missing in the was What aspect that makes precisely what therefore §16-1-20.1 —and promotion endorsement the State’s unconstitutional —was statute *18 practice. particular only § to “meditation” whereas 16-1-20.1 refers to “medita- voluntary prayer.”
tion or The first difference is of no rele- litigation in this appellees because the minor vance were in kindergarten grade during or second the 1981-1982academic year. The second impact difference would also have no on litigation this mandatory § because the language of 16-1-20 apply continued grades to through to one six.46 Thus, the only significant textual difference is the addition of the words voluntary prayer.” “or legislative prayer intent to return schools quite
is, of course, merely different from protecting every right engage student’s voluntary during ap- an propriate during moment of schoolday. silence The 1978 already protected statute right, containing that nothing that prevented any engaging student from voluntary prayer during a silent minute Appellants of meditation.47 have not purpose identified secular fully that was not served § § 16-1-20 before the enactment of only 16-1-20.1. Thus, two conclusions § are consistent with the text 16—1—20.1: (1) the convey statute was message enacted to of state promotion (2) prayer; endorsement and the statute was purpose. enacted for suggests no No one that the statute nothing meaningless was but a or irrational act.48 must, We therefore, conclude Legisla that the Alabama change ture existing intended to law49 it was moti supra. n. See 47Indeed, persons for some meditation itself may be a form prayer. Larson, B. Larson’s Book of (1982); Cults 62-65 Whittier, C. Prayer Silent and Meditation Religions in World (Congressional 1-7 Research Service 1982). 48If the conclusion the statute had purpose no tenable, were it would remain true that purpose no is not a secular purpose. But such a conclu sion is inconsistent with the common-sense presumption that statutes are usually enacted change existing Appellants law. do not suggest even that the State no § had in enacting 16-1-20.1. 49 United States Champlin Refining Co., (1951) (a S.U. “statute cannot be divorced from the existing circumstances at the time it *19 60 to answer the that Governor’s the same purpose
vated by the that admitted; expressly complaint amended the second revealed; history legislative inserted the statement The leg described. frankly testimony Holmes’ that Senator § 16—of existence the §16-1-20.1, despite enacted islature endorse the State’s of expressing 1-20 for the sole beginning at the one minute activities for of ment prayer voluntary prayer” “or The addition schoolday. of each prayer intended to characterize that the State indicates is not consistent an endorsement Such practice. a favored must pur government the established principle religion.50 neutrality toward of complete sue a course to treat does not us permit of that principle The importance more than nothing case involving this as an inconsequential majori on behalf of political speech of symbolic few words a religious on speaks itself the State For ty.51 whenever purpose to Con- id., pointless (refusing to attribute at 298 passed”); was v. National States United contrary); of facts to gress in the absence (1949) argu- Inc., (rejecting Government’s Lines, City U. 80-81 337 S. legislation). enacting change law when to Congress had no desire ment that curiam); Graham, (“per Committee S., at 50 See, g., 449 U. e. Stone v. Liberty Nyquist, 413 U. Religious v. S. & Public Education and the (1973) (“A Free for both the Exercise proper respect 792-793 ‘neutrality’ pursue a course compels the State Establishment Clauses 97, 109 (1968); Abing Arkansas, 393 U. S. religion”); Epperson v. toward Vitale, 215-222; Engel v. S., Schempp, 374 U. District ton School denominationally (“Neither may be that the S., the fact at 430 U. is volun part of the students on that its observance neuthal nor fact Clause”); Establishment limitations of the free it from the tary can serve to Education, 333 U. S. 203, 211-212 v. Board ex rel. Illinois McCollum Education, S.,U. at 18. (1948); Everson v. Board of Vitale, S., Engel 370 U. at 430: stated As this Court Clause, not de- Clause, the Free Exercise does unlike “The Establishment compulsion and is violated governmental showing direct pend upon any those an official whether establish of laws which the enactment nonobserving not.” directly coerce individuals operate laws prestige and finan- power, “[w]hen noted Moreover, this has Court belief, particular placed government is behind support cial pre- to conform upon religious minorities pressure indirect coercive subject, one of the questions that we must ask is “whether the government intends to convey a message of endorsement or disapproval of religion.”52 The well-supported concurrent findings the District Court and the Court of Appeals —that § 16-1-20.1 was intended to convey a message of state ap proval of prayer activities in the public schools —make it unnecessary, indeed inappropriate, to evaluate the prac *20 tical significance of the addition of the words “or voluntary prayer” to the statute. in Keeping mind, as we must, “both the fundamental place held by Establishment Clause our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,”53 we conclude §16-1-20.1 that violates the First Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered. vailing approved officially religion is plain.” Id., at 431. This comment special has force in public-school context where attendance is manda- tory. Justice Frankfurter acknowledged this Illinois ex rel. reality McCollum v. Board Education, S., 333 U. at 227 (concurring opinion): “That a child is offered an may alternative reduce constraint; it does operation eliminate the by influence the school in matters sacred to conscience and outside the school’s domain. The law of operates, imitation and non-conformity is not an outstanding characteristic of children.” See Abington School District v. Schempp, also S., 374 U. at 290 (Bren nan, J., concurring); cf. Marsh v. Chambers, 463 (1983) S. 783, U. (distinguishing between adults not susceptible to “religious indoctrina tion” and children subject “peer pressure”). Further, this Court has observed: “That [Boards of Education] are educating the young citizenship is rea- son for scrupulous protection of Constitutional freedoms of individual, if we are not strangle the free mind at its source and teach youth to dis- count important principles government of our platitudes.” as mere West Virginia Board Education Barnette, S., 319 U. at 637. 52 Lynch v. Donnelly, S., 465 U. 690-691 J., concurring) (O’Connor, (“The purpose prong of the Lemon requires test that a government activity have a secular purpose. . . . The proper inquiry under the purpose prong of Lemon ... is whether the government intends to convey a message of endorsement disapproval or of religion”). 53 Id., at 694. concurring. Powell,
Justice Ala. and judgment opinion in the Court’s I concur Establishment 1984) violates (Supp. §16-1-20.1 Code is concurrence My Amendment. First Clause to institute attempting persistence Alabama’s prompted by enacting schools in the public state-sponsored with Justice I fully agree statutes.1 successive three statutes some moment-of-silence assertion O’Connor’s Court’s forth set suggestion constitutional,2 Ante, at 59. as well. opinion 1984) (moment of (Supp. § 16-1-20 Ala. Code are The three statutes 1984) (moment silence (Supp. §16-1-20.1 meditation); Ala. Code silent 1984)(teachers (Supp. § 16-1-20.2 Ala. Code prayer);
for meditation enacted These were statutes prayer). in vocal lead students authorized was § 16-1-20 whether question There is some years. span of four over summarily affirmed already has The Court implication. repealed Jaffree, Wallace invalid. § 16-1-20.2 holding that Appeals’ Court validity only the today address (1984). Thus, opinions our S.U. *21 ante, 41-42. at § See of 16-1-20.1. 2 statutes moment-of-silence stating that correct in is O’Connor Justice prayer: for vocal providing as those manner in the same treated cannot be is different public schools in the of silence moment state-sponsored “A First', a moment of reading. Bible prayer or vocal state-sponsored from reading, Silence, prayer or Bible unlike religious. inherently not silence is par- Second, pupil who a exercise. with a associated need not be beliefs. his or her compromise not silence need of in a ticipates moment his or prayer is left objects to who silence, a student of During a moment thoughts prayers to the or compelled listen not and thoughts, her own does statute of reasons, moment silence a simple these For others. of Court according to how the Clause the Establishment under or fall stand Member one and at least reading. Scholars or Bible regards vocal moment suggested that recognized the distinction this Court have of Abington, [374 See constitutional. would be schools of silence (‘[T]he a moment of observance concurring) J., (Brennan, S.,] at 281 U. solely secular ‘the serve of class’ opening at the silence of reverent reli- either jeopardizing activities without devotional purposes degree proper community any members gious liberties Tribe, L. government’); spheres of between separation
63
I write separately to express additional views and to
respond to criticism of the three-pronged Lemon test.3
Lemon v. Kurtzman,
thoughtful Post, schoolchildren.” at 72-73 (concurring in judgment). 3Justice O’Connor asserts that the “standards announced in Lemon should be reexamined and refined in order to make them more useful in achieving the underlying purpose of the First Post, Amendment.” at 68 (concurring judgment). Rehnquist Justice would discard the Lemon test entirely. Post, (dissenting). As I text, state in the the Lemon test has applied been consistently in Establishment Clause cases since it was adopted in 1971. In word, it has been the Respect law. for stare decisis require should us to follow Lemon. See Garcia v. San Antonio Metropolitan Transit Authority, U. S. (1985) (Powell, J., (“The dissenting) judicial stability of decision, and with respect it authority Court, this are not served precip- itous overruling multiple precedents .”). . . 4In Marsh Chambers, we held that the Nebraska Legislature’s prac *22 tice of opening day’s each session awith by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. Our holding upon was based the historical acceptance practice had become “part of the fabric of society.” our S., 463 U. at 792. 5 Lemon Kurtzman, v. 403 U. S. (1971), 602 was a carefully considered opinion of The Justice, Chief in which he was joined by six other Jus- 64 challenged inquiry under Lemon is
The first whether legislative purpose.” Lemon v. Kurtz has a “secular statute recognizes, supra, this man, at 612. As Justice O’Connor pass purpose a will not con “sincere”; must be law secular purpose by if the secular articulated stitutional muster merely (concurring legislature Post, in a “sham.” at 75 (1980) (per judgment). Graham, In v. 449 39 Stone U. S. curiam), example, requiring we held that a statute for posting of the Ten Commandments schools violated though Legis Kentucky even Clause, the Establishment goal lature asserted that its was educational. We have not interpreted prong supra, Lemon, however, the first requiring “exclusively object that a statute have secular” Lynch Donnelly, 465 n. 6 668, 681, ives.6 v. U. S. legislation requirement If such a much conduct and existed, approved by past in this Court would have been g., Comm’n, validated. e. v. Tax 664 See, Walz U. S. (1970) (New exemption property tax York’s for upheld); organizations Education, Everson v. Board (1947) (holding township may par U. S. that a reimburse transporting parochial ents for the cost of schools). their children to tices. Lemon’s three-pronged repeatedly test has been In followed. Religious Liberty Nyquist, Committee Public Education & v. for (1973), example, applied U. S. 756 for Court the “now well-defined test” of Lemon. 413 U. S., three-part at 772. Lynch Donnelly, (1984),
In
65 The record before us, however, makes clear that Ala- purpose solely religious bama’s was in character. Senator sponsor Donald Holmes, of the bill that became Alabama § (Supp. 1984), Code freely 16-1-20.1 acknowledged that the purpose of this statute voluntary was prayer” “to return public schools. ante, See agree at 57, n. 43. I with single legislator’s that a par- statement, Justice O’Connor ticularly following if made necessarily enactment, is not suffi- purpose. cient to post, establish See (concurring at 77 judgment). But, as opinion, noted in the Court’s the reli- gious § purpose of 16-1-20.1 is manifested in other evidence,
including sequence history of the three Alabama stat- utes. ante, See at 58-60.
I importance also consider it of critical that neither the Dis- trict Appeals nor Court the Court of purpose, found a secular agreed while both purpose that the religion. was to advance opinion In its first (enjoining § the enforcement of 16-1-20.1 pending hearing merits), a on the the District Court said that the statute clearly did “not reflect purpose.” secular (SD Supp. 1982). v. James, 544 F. 727, 732 Ala. In- Jaffree stead, the District Court found that the enactment of the statute part was an “effort on the of the State of Alabama encourage religious activity.”7 Ibid. The Court of Appeals applied likewise Lemon test and found “a lack part of secular on Legislature.” of the Alabama 7In subsequent its decision on merits, the District Court held that in the schools —even if led the teacher —did violate Establishment Clause First Amendment. The District recog Court nized that its decision was Engel Vitale, inconsistent 421 U. S. (1962), and other decisions of this Court. District Court nevertheless ruled that its justified decision was because “the United Supreme States Court has erred . . .”. Board School Comm’rs Mobile Jaffree County, (SD 554 F. Supp. 1983). Ala.
In my capacity as
Justice,
stayed
Circuit
I
the judgment of the District
appeal
Court pending
to the
Appeals
Court of
for the Eleventh Circuit.
v. Board
School
County,
Comm’rs Mobile
I vote would S. Allen, 463 purpose. v. U. Mueller See a clear secular (the (1983) “reluctan[t] attribute to is Court 394-395 particularly a when States, to the motives unconstitutional may program dis- plausible for the State’s secular statute”). Nothing in the record from the face cerned purpose, and clear secular identifies a however, us, before nonreligious identify any reason failed to also has the State circumstances, these Under enactment.8 the statute’s for precedents required to hold that our is the Court prong and therefore Lemon test the first statute fails Clause. Establishment violates the prongs
Although the other reach two do not we straightforward of a the “effect” I note that test, Lemon unlikely “advanc[e] in- or statute moment-of-silence Allen, religion.”9 Education hibi[t] Board See ‘an such a “foster Nor would statute U. S. ” religion.’ entanglement government Lemon excessive princi that “the the Lemon test and asserts Instead, criticizes the State purpose prong.” See Brief for from the test] stem pal problems [with seq. 9 et Appellant Wallace Lemon, would be prong of we the “effects” necessary to reach If it were feelings of immature the minds and the effect on primarily with concerned silence, a stu notes, during “a moment pupils. As Justice O’Connor is left purpose] be the objects prayer [even where who dent prayers compelled to listen thoughts, and is own to his or her Post, (concurring judgment). in Given at 72 thoughts of others.” with, it is un are concerned youthful primarily minds subjects types time of silence” simple “moment use a many children would likely that subjects the mind of many on too other are religious prayer. There children, raised that some also is the likelihood Yet there typical child. on the to reflect use the moment families, properly would strongly religious her his or choice. religion of quoting Kurtzman, S., 403 U. at 612-613, Walz v. Tax
Comm’n, 397 S.,U. at 674. join opinion
I judgment of the Court.
Justice O’Connor, concurring the judgment.
Nothing in the interpreted United States Constitution as by this Court or in prohibits the laws of the State of Alabama voluntarily school praying students from time during, schoolday. before, or after the Alabama has facili- voluntary prayers tated silent of students who are so inclined by enacting § (Supp. 1984), provides Ala. Code 16-1-20 which appellees’ day. moment par- of silence schools each proceedings ties validity to these concede the of this enact- appeals ment. At issue these validity is the constitutional *25 subsequent of an and additional Alabama statute, Ala. Code § (Supp. 1984), 16-1-20.1 which both the District Court and Appeals the solely Court of concluded was enacted to offi- cially encourage prayer during the moment of silence. I agree judgment with light the of the Court that, findings history of the courts below and of its enactment, §16-1-20.1 of the Alabama Code violates the Establishment my Clause of the First Amendment. In view, there can purpose likely little doubt that and effect of this subse- quent sponsor voluntary prayer enactment is to and endorse separately identify schools. I pecu- write liar features of the Alabama law that render it invalid, and to explain why moment of silence laws other States do not necessarily infirmity. manifest the same I also write to explain why history neither nor the Free Exercise Clause of the First Amendment validates the law Alabama struck today. down the Court
I Religion The coupled Clauses of the First Amendment, guarantee with the Fourteenth Amendment’s of ordered lib- erty, preclude both the making and Nation from States respecting law an establishment prohibiting or 68 310 Connecticut, v. thereof. Cantwell free exercise (1940). jurisprudence Although has a distinct 303 296,
U. S. enveloped purpose is common Clauses, their of these each Engel liberty. Vitale, 370 U. S. See to secure (1962). principles and has been the Court On these unanimous. remains again “it is however, demonstrate, cases once
As these agree First underlies the on far easier Clauses and Free Exercise Establishment Amendment’s gov- agreement should the standards that on than to obtain application.” 397 U. S. Comm’n, v. Tax Walz ern their J.). (1970) appeared (opinion that the It once Harlan, developed to iden- standard which a workable Court had religion. government tify impermissible establishments (1971). Under 403 U. S. Kurtzman, Lemon v. See both a secular statutes must have test, familiar Lemon now legislative purpose primary principal that nei- effect and a they religion, must addition nor inhibits ther advances entanglement religion. government not foster excessive Despite promise, the Lemon test its initial at 612-613. Id., required inquiry problematic. proved into “entan- has glement” questioned, Mueller v. see has been modified (1983), in one case we n. 388, 403, 463 U. S. Allen, against upheld an Establishment Clause state action have applying challenge Marsh the Lemon test at all. without Lemon The author of 463 U. S. Chambers, *26 general applicability. apparently questions the test’s himself Lynch Donnelly, 465 U. S. See Justice entirely, today suggests abandon Lemon that we Rehnquist process in limit the reach of the Establishment and government sects and to state discrimination between Clause particular designation as a “state” or “national” of a church at 108-113. Post, one. struggle, ready
Perhaps
I
I
am not
am new to
because
aspects
believe,
I do
of the Lemon test.
to abandon all
in Lemon
announced
should
that the standards
however,
reexamined
refined in
order to make them more useful in
achieving
underlying
the First Amendment.
We must strive to do more than erect a constitutional “sign-
Hunt
v. McNair,
protected the Establishment Clause is infringed when the government makes adherence to religion relevant to a person’s standing political Direct community. gov- ernment action endorsing religion a particular practice is invalid under this approach it because “sends a message to nonadherents they are outsiders, not full members of the political community, and an accompanying message adherents that are they insiders, favored mem- Id., at 688. Under this bers of the political community.” Lemon’s, view, inquiry to the purpose effect of a stat- ute requires courts to examine whether government’s pur- pose to endorse whether the statute actually conveys a message endorsement.
The endorsement test is useful because of the con- analytic tent it to the gives Lemon-mandated into inquiry legislative purpose and effect. In this country, church and state must necessarily operate within the same community. Because of this it coexistence, is inevitable that the secular interests government and the religious interests of various sects and their adherents will frequently intersect, conflict, and com- bine. A statute ostensibly promotes a secular interest *27 help- primary effect of a or even an incidental has often hindering would ensue belief. Chaos ing a sectarian or Establishment under the every invalid were statute if such mur- example, not criminalize could the State For Clause. thereby promote Biblical com- it would for fear der killing. is to sort out the Court against The task for mand practices government whose those statutes liberty protected religious grain go against the effect First Amendment. government preclude from does test The endorsement religion taking in into religion account acknowledging or from government preclude from policy. making It does law religion message convey or attempting a conveying or preferred. an Such religious or particular is favored belief liberty religious infringes of the nonadher- endorsement support of prestige power, and financial “[w]hen the ent, government religious particular belief, placed behind is con- upon pressure minorities indirect coercive plain.” officiallyapproved prevailing form to today is whether supra, Engel 431. At issue Vitale, general, and Alabama’s statutes of silence state moment impermis- embody particular, an statute of silence moment prayer schools. sible endorsement A require public teachers permit school
Twenty-five states in their of silence class- a moment observe have students provide of silence that the moment A few statutes rooms.1 1984): Ariz. Stat. §§ 16-1-20, (Supp. Rev. 16-1-20.1 Ala. Code 1 See (1980); Stat. § 80-1607.1 Conn. Gen. Ann. (1984); § Ark. Stat. Ann. 15-522 (1981) (as interpreted 14, § 4101 Ann., Tit. (1983); Del. Code §10-16a (1983); §233.062 Ga. Code (1979)); Fla. Stat. Atty. Op. Gen. 79-1011 Del. (1983); 122, ¶ 771 Code Stat., Ind. (1982); Rev. ch. Ill. § 20-2-1050 Ann. (1980); La. Rev. Stat. § (1982); Ann. 72.5308a Stat. § 20-10.1-7-11 Kan. 20-A, § 4805 Ann., Tit. § 17:2115(A) (West 1982); Me. Rev. Stat. Ann. Ann., (1985); Laws ch. § Mass. Gen. 7-104 (1983); Ann. Md. Educ. Code 1984-1985); (Supp. § 380.1565 (West Comp. Laws Ann. 1982); § 1A Mich. *28 is for the purpose meditation alone. See Ariz. Rev. Stat. § Ann. 15-522 (1984); Conn. § Gen. Stat. 10-16a (1983); R. I. Gen. § (1981). Laws 16 — 12—3.1 The typical statute, how ever, calls for a moment of silence at the of the beginning schoolday which during students may meditate, pray, or re g., flect on the activities of the day. See, e. Ark. Stat. Ann.
§ 80-1607.1 (1980);
§ 20-2-1050
Ga. Code Ann.
(1982); Ill.
Rev.
ch.
Stat.,
¶ 771
122,
(1983); Ind.
§ 20-10.1-7-11
Code
(1982); Kan. Stat. Ann. § 72-5308a (1980); Pa. Stat. Ann., Tit.
(Purdon
§ 15-1516.1
1984-1985).
Supp.
Federal
trial
courts have divided
on
constitutionality
of these mo
ment of silence laws. Compare
Gaines
Anderson,
v.
421
(Mass.
F. Supp.
May
1976)
(upholding statute), with
v.
Cooperman,
(NJ
572 F.
1983)
Supp.
(striking down stat
Duffy
v. Las Cruces Public Schools,
The are decisions not dispositive on the constitutionality of moment of silence laws. In those (West § N. J. Stat. Ann. 18A:36-4 Supp. 1984-1985); N. M. Stat. Ann. § (1981); 22-5-4.1 N. Y. § Educ. Law (McKinney 3029-a 1981); N. D. Cent. §15-47-30.1 Code (1981); Ohio §3313.60.1 Rev. Ann. (1980); Code Pa. Ann., (Purdon 24, § Stat. Tit. 15.1516.1 Supp. 1984-1985); R. I. Gen. Laws § 16-12-3.1 (1981); § 49-6-1004 Tenn. Code Ann. (1983); §22.1- Va. Code (1980); Const., W. Va. Ill, §15-a. Art. For comparison a useful provisions of the many statutes, of these Note, see Daily Moments of Silence in Public Schools: A Analysis, Constitutional 58 N. Y. U. L. Rev. 407-408 led their classes and students school teachers cases, public re- York statute Engel, In a New exercises. devotional The in vocal prayer. lead their classes teachers quired of govern- is no business part concluded that "it Court the Ameri- any group official prayers to compose ment carried on a religious program recite as part people can Abington, In S., at 425. 370 U. government.” statutes Maryland Pennsylvania addressed Court schools. readings morning Bible authorized statutes, con- and effect of the purpose Court reviewed *29 exercises, and therefore they religious that required cluded S., Clause. 374 U. violate the Establishment them to found student who did statutes, these a all of at 223-224. Under the course of the expressed the religious not share beliefs thereby the choice of participating, left with was exercise beliefs, withdrawing, or the nonadherent’s compromising nonconformity. or her attention to his calling thereby under the statu- implicit the coercion acknowledged decisions they expressly at but Engel, supra, see tory schemes, was government sponsoring the fact only on turned exercise. religious a manifestly in the schools of silence
A moment state-sponsored or read- vocal Bible prayer from state-sponsored is different is not inherently religious. moment silence First, a of ing. not associ- Bible reading, unlike or need Silence, prayer a who Second, pupil partici- exercise. ated a religious her need not his or of silence compromise a moment pates silence, objects a who a moment of student During beliefs. is not com- her own thoughts, is left to his or to prayer of others. For thoughts to listen to prayers pelled statute does reasons, a moment silence these simple according under the Establishment Clause or fall stand Schol- reading. vocal or Bible regards how the Court recognized this have Court ars and at least one Member in pub- that a moment of silence suggested the distinction and Abington, supra, See lic would be constitutional. schools (“[T]he a mo- observance J., concurring) (Brennan, ment of opening reverent may silence at the of class” serve solely purposes “the secular of the devotional activities with jeopardizing out religious either liberties of members community proper degree separation or the between spheres goverment”); L. Tribe, American p. (1978); Constitutional Law § 14-6, P. Freund, The Legal Religion Issue, (1965); and the Public Schools 23 Choper, 47 Kauper, Minn. L. Prayer, Rev., at 371; Public Supreme Schools, and the Court, 61 Mich. L. Rev. 1031, 1041 general agree. As a I matter, It is difficult to dis cern a liberty serious threat to from a room of silent, thoughtful schoolchildren.
By mandating a moment of silence, a State
not nec-
does
essarily
any activity
might
endorse
during
occur
period. Cf. Widmar v. Vincent,
The relevant issue history, implementa- legislative quainted text, perceive it as a state endorsement statute, of the would tion Corp. Bose v. Consumers schools. Cf. Inc., n. States, 485, 517-518, 466 U. S. United Union of (1984) (noting questions dissenting) J., (Rehnquist, average “likely provoke fighting are words whether person v. New 394 U. S. retaliation,” York, Street appeals (1969), allegedly material obscene and whether “prurient Miller v. 413 U. S. interests,” California, properly (1973), questions that are mixed of law and fact are review). appellate subject A moment of silence to de novo clearly implemented permit drafted and so as to that is law prayer, prescribed meditation, and reflection within endorsing period, others, one alternative over the without pass test. should this
B analysis suggests that moment of silence laws above pass scrutiny many Establishment Clause States should they pray dur- do not favor the child who chooses to because ing the child who chooses to medi- a moment of silence over § tate reflect. 1984) Alabama (Supp. Code 16-1-20.1 does n not stand footing. on the same deferentially However one legislative examines its text history, objectively however message one views the attempted conveyed to be to the public, the conclusion is unavoidable that the *33 prayer statute is public to endorse accordingly I schools. agree with Appeals, the Court of 705 F. (1983), 2d 1526, 1535 that the Alabama purpose statute ahas which inis violation of the Establishment upheld. Clause, and cannot be finding
In purpose § that the of 16-1-20.1 is to endorse vol- untary prayer during a moment of silence, the Court relies on testimony elicited from State Senator Donald G. Holmes dur- ing preliminary injunction hearing. Ante, at 56-57. Sena- tor Holmes purpose that testified the sole of the statute was to voluntary prayer return public to the schools. For the expressed reasons give I above, any, weight would little, if to legislative sort this of of evidence intent. Nevertheless, the text light of the statute of legislative its official history leaves purpose little doubt that the of this statute corre- sponds purpose expressed to the by Senator at Holmes the preliminary injunction hearing.
First, it is already notable that Alabama had a moment of § silence statute before it enacted 16-1-20.1. See Ala. Code § (Supp. 1984), quoted 16-1-20 Appellees ante, at 40, n. 1. challenge do not they this indeed, concede its valid- statute — ity. Appellees See Brief only significant 2. The addition §by made specify 16-1-20.1 is to expressly voluntary that prayer is one of the during authorized activities a moment of Any silence. legislative doubt as to the purpose of that addi- tion is legislative removed history. official The sole purpose history reflected in the official is “to return volun- tary prayer App. our schools.” any- 50. Nor does thing legislative history contradict an intent to encour- age prayer children to choose over other during alternatives the moment of legislative silence. Given history, this it is surprising that the State of Alabama conceded to make purpose was the statute that the below courts activity, Dis- both the daily and that part prayer classroom law’s Appeals that the concluded and the Court trict Court activity. ante, encourage See towas history find- legislative and the light In n. 44. that agree the Court I ings below, the courts message convey § 16-1-20.1 to intended State state-prescribed mo- activity during the the endorsed was unnecessary also it is therefore silence.5 While ment of Lynch, atS., 465 U. statute, effect of determine message likely opinion), (concurring it also seems §16-1-20.1 objective conveyed actually observers prayer over other alterna- approval selects child who during of silence. a moment tives requires tous record, candor in the this evidence
Given convey a intended to was statute Alabama that this admit encouragement reli and endorsement message of state *34 S., 669, at the Court Comm’n, U. Tax gion. In Walz are Religion Amendment of the First Clauses that the stated with enough “permit to exist exercise flexible Alabama Code sponsorship and interference.” without out 1984) permit (Supp. than §16-1-20.1 more does It during “without interference.” a moment silence occur em consequence Court’s that Justice suggests one The Chief predecessor statute § 16-1-20.1 its difference between on the phasis Con unconstitutional because Allegiance Pledge of the might to render Post, I at 88. “under God.” add the words it in 1954 to amended gress Pledge, at in as codified God” the view, words “under my disagree. In legiti acknowledgment religion with “the 172, an § serve as C. U. S. occasions, expressing solemnizing public [and] purposes of mate secular (1984) Donnelly, 465 U. S. Lynch future.” in the confidence (concurring opinion). suggestion that Court’s with The Chief Justice’s I also disagree the word includes silence statute that moment opinion invalidates speci- supra, if a Post, statute “[e]ven noted at 85. As “prayer.” moment, during quiet silently a pray choose
fies that student specified alternatives.” encouraged prayer over other thereby has State pray during endorses the decision to a moment of silence, and accordingly sponsors religious exercise. For that I reason, judgment in concur of the Court.
HHHH dissenting opinion, In his post, at 91-106, JUSTICE Rehn- history reviews the text and of the First Amendment QUIST Religion opinion suggests long Clauses. His that a line of this Court’s decisions are inconsistent with the intent of the Rights. urges drafters of the Bill of He to correct Court past embracing historical inaccuracies its decisions interpretation a far more restricted of the Establishment interpretation presumably Clause, an permit would vocal group prayer public generally Sepa- schools. See R. Cord, ration of Church and State suggests States, United an amicus brief, a less
sweeping principles. modification of Establishment Clause In the state-sponsored Federal Government’s view, a mo- merely ment of silence is an “accommodation”of the desire of practice some by pray- school children to their ing silently. contemplated by Such an accommodationis guarantee First Amendment’s that the Government will not prohibit religion. the free exercise of Because the moment implicates of silence free exercise values, United States suggests inquiry the Lemon-mandated into and effect should be modified. Brief for United States as Amicus Curiae 22. analysis
There is helpful an element of truth and much suggestions. Particularly each of these when we are inter- *35 preting page history the Constitution, “a of is worth a volume logic.” of (1921). York New Trust v. Eisner, Co. 256 U. S. 349 345, provision
Whatever the of the Constitution is at “fidelity issue, I continue to believe that to the notion of con- opposed purely judicial govern- stitutional —as on —limits requires impose heavy mental action us to a on burden those practices accepted provision] [the who claim that when was 80 impermissible.” constitutionally Tennessee
adopted now are (1985) opinion). (dissenting The 261, 471 U. S. Garner, v. legislative upholding history in properly looked Court (1983),property 463 U. S. Chambers, v. prayer, Marsh Comm’n, worship, Tax v.Walz exemptions houses of for tax Maryland, 366 closing Sunday v. laws, McGowan supra, and “[i]f a (1961). observed, once Holmes As Justice U. S. years common practised hundred for two thing been has Amend strong the Fourteenth case for it will need consent, S. 260 U. Co., v. Rosenbaum it.” Jackman toment affect (1922). 22, however, assert, does Rehnquist Justice preference expressed for Amendment of the First
drafters prayer pub- practice of public schools, or that government uninterrupted endorsement enjoyed lic schools Rights Bill of enactment simple time of from the public education free is that truth present The era. century. See 18th virtually in the late nonexistent was J., concur- n. Abington, 238, atS., 374 U. (Brennan, schools, government-run few ring). existed then there Since First Amend- persons unlikely drafted the who that the it is anticipated legislators it, ratified who or the state ment, public in the and state church problems of of interaction Congress, Sky, Clause, the Establishment The schools. Perspective, L. Rev. 52 Va. An Historical the Schools: (1966). adoption the Four- time of Even at 1403-1404 still was States Southern education Amendment, teenth primarily free toward movement private and the hands, general not taken had supported taxation public schools 483, 489-490 347 U. Education, S. Board hold. Brown of the Framers uncertainty to the intent This history ignore Rights we should not mean does Bill religion in education. guidance on the role g., ex rel. McCollum e. Illinois See, so. not done has Court (Frank- (1948) U. S. Education, 333 Board
81
concurring).
furter, J.,
When the intent of the Framers is
I
employ
unclear,
history
believe we must
both
in
reason
analysis.
primary
our
issue raised
Justice
Rehn-
dissent is whether the historical fact that our Presi-
quist’s
long
public
dents
prayers
have
called for
of Thanks should
dispositive
constitutionality
on the
prayer
I
very
schools.6 think not. At the
least, Presidential Proc-
distinguishable
lamations are
they
from school
in that
setting
are received
a
primarily
noncoercive
and are
di-
presumably
rected at
readily
adults, who
susceptible
are not
unwilling religious
to
indoctrination. This Court’s decisions
recognized
have
a
government-sponsored
distinction when
re-
ligious
impressionable
exercises are directed at
children who
required
are
government
to attend school, for then
endorse-
likely
ment is much more
to
result
coerced
supra,
be-
g.,
liefs. See, e.
Marsh v. Chambers,
at 792; Tilton
v. Richardson, 403
Although
U.
history provides
S., at 686.
problems,
touchstone for constitutional
the Establishment
religious liberty
Clause concern
dispositive
for
here.
The element of truth in
arguments,
the United States’
I
suggestion
believe, lies
that Establishment Clause
analysis
comport
must
with the mandate of the Free Exer
government
cise Clause that
prohibiting
make no law
the free
religion.
exercise
interpreted
cases
Our
have
the Free
compel
Exercise
government
Clause to
exempt
per
to
generally
sons
applicable
from
government
some
require
permit
persons
ments so freely
those
their
exercise
religion.
g.,
See, e.
Thomas v. Review Board
the Indiana
Employment Security
(1981);
Division,
U. S. 707
Wis
(1972);
consin Yoder, 406 U. S. 205
Sherbert v. Verner, assuming
Even
taxpayer
could
standing
challenge
establish
such a
practice,
see Valley Forge
College
Christian
v. Americans United Separation
Church
State, Inc.,
U.
(1982),
S. 464
these Presi
dential Proclamations
probably
would
withstand Establishment Clause
scrutiny given
long history.
their
v. Chambers,
Marsh
See
It
that either
is obvious
logical
expanded
tend to clash with
extreme,
to a
would
long
has
at 668-669. The Court
Walz,
S.,
other.”
397 U.
by calling
government “neutral-
conflict
for
exacerbated the
religion.
g.,
ity”
Public Edu-
e.
See,
Committee
toward
(1973);
Religious Liberty Nyquist,
The solution to the Religion conflict between the Clauses “neutrality,” lies identifying but rather in lim- workable government’s its to the promote license to the free exercise of religion. The text of speaks the Free Exercise Clause of laws prohibit religion. free exercise of On its face, the government Clause directed at interference with free exer- cise. Given that plausibly concern, one can gov- assert that pursues ernment Free Exercise Clause values when it lifts a government-imposed burden on the religion. free exercise of If a statute category, falls within this then the standard *38 Establishment Clause test accordingly. should be modified disingenuous It is purely to look for a secular when objective the manifest of a is statute to facilitate free the religion by lifting exercise of government-imposed burden. Instead, the simply Court acknowledge should that the re- ligious purpose legitimated of such a by statute is the Free go Exercise I Clause. would assessing also further. In the effect of such a determining statute —that is, in whether the conveys message statute the religion of endorsement of or a particular religious belief—courts should assume that the “ob- jective supra, acquainted observer,” at 76, is with the Free Exercise promotes. and the Clause values it Thus individual perceptions, religious or resentment that a observer is ex- empted particular government from a requirement, would be weight entitled to little if the Free strongly Exercise Clause supported exemption. the
While analysis this help “accommodation” would reconcile our Free Exercise and Establishment Clause standards, it not would save Alabama’s moment of silence law. If we religious activity assume that the that Alabama seeks to protect prayer, is silent then it is difficult to discern state- imposed activity by burden on that that is lifted Alabama (Supp. Code prevents §16-1-20.1 1984). No law a student who praying is so silently inclined from schools. of silence provided already a moment law state Moreover, Code §16-1-20.1. Ala. See irrespective of appellees these argue might 1984). State course, the Of (Supp. § 16-1-20 group prayer, rather but protects silent § not 16-1-20.1 that in these Phrased sponsorship. state under silent imposed not one is statute the lifted the burden terms, in- Clause by the Establishment Alabama, but State beyond my it is view, Abington. In Engel and terpreted in burdens remove of Alabama authority State Ala- that I conclude itself. by the Constitution imposed on state-imposed burden today no lifts issue statute bama properly accordingly cannot religion, and free exercise statute. accommodation as an viewed I—IHH I—I Clause Establishment that the hold does Court from afford- precludes the States it hostile so prayer. voluntary silent opportunity for an
ing schoolchildren many statutes silence contrary, moment To we standard satisfy Clause Establishment should States has only Alabama holds applied. The Court here have intentionally creating quiet mo- line between crossed the may pray, affirma- during inclined so those which ment prayer. practice particular endorsing tively *39 the precedents and our one, but a fine be line This In it. liberty require draw we that principles of Appeals must judgment Court of the my the view, affirmed. dissenting. Burger, Justice
CHIEF will cases opinions in these read trouble who Some day very we on perhaps even bizarre—that find it ironic— opened session Court’s cases, arguments in the heard park a protection. Across Divine for an invocation Representatives and away, yards House hundred few regularly open Senate each prayer. session awith These legislative prayers just are not one minute in duration, but are thoughtful extended, prayers invocations and for Divine guidance. They given, they are as have been since 1789, by clergy appointed chaplains paid official from the Treasury of the Congress United States. provided has also chapels Capitol, expense, where Members may pause prayer, others for meditation—or a moment of silence.
Inevitably wag some say is bound to that the Court’s hold- ing today reflects a belief that practice the historic Congress justified and this Court is because members of the Judiciary Congress are inmore guidance need Divine than are schoolchildren. say Still others will that all this controversy is “much ado nothing,” about power since no on including this Congress Court and stop any earth — —can opening teacher from schoolday with a moment of silence pupils for plan day meditate, to their pray they if —or voluntarily elect to do so. I points make several today’s about holding. curious (a) It say makes no sense to that Alabama has “endorsed prayer” by merely enacting a specify new statute “to ex- pressly voluntary prayer that is one of the authorized activi- during ties a moment of silence,” ante, at 77 (O’Connor, J., concurring judgment) added). (emphasis suggest To a moment-of-silence statute that “prayer” includes the word unconstitutionally religion, endorses simply while one that provides for a moment of silence does not, manifests not neu- trality hostility but religion. toward opin- For decades our ions have hostility stated religion toward or toward religions all is as much forbidden the Constitution as is an official religion. establishment Legislature The Alabama has no more “endorsed” than a Congress state or the provides does when it legislative chaplains, or than this opens Court does when it each session with an invocation to *40 Justice observations Today’s recalls the decision God. Goldberg: neutrality concept can the to
“[UJntutored devotion partake approval which results or invocation to lead noninvolvement and simply noninterference of that not commands, but the Constitution which the the secular pervasive brooding dedication aof religious. hostility the active, passive, even or and a compelled only the Constitu not not are results Such Abing prohibited it.” me, are it but, seems tion, (1963) Schempp, 203, 306 374 U. S. District ton School (concurring opinion). foregoing opinions, how- aspect (b) inexplicable of the The holding con- support the they for advance is what
ever, cerning Legislature. Rather purpose Alabama the the of the purpose the face determining legislative from than rely opinions factors three on the whole,1 as a statute concluding “wholly reli- Legislature a had Alabama that the Ala. enacting review, under statute purpose gious” for (i) 1984): statute’s (Supp. of the § statements 16-1-20.1 Code sponsor, to the (ii) answer James’ in Governor admissions (iii) between complaint, the difference amended second predecessor § statute. its 16-1-20.1 of the that all mention opinions not do Curiously, the upon including the statement relied sponsor’s statements — leg- made Journal —were the Senate into “inserted” after testimony that passed indeed, statute; had islature year given after a over well was finds critical the Court appellees concede, see even the As enacted. was statute of evidence Appellees shred there for Brief pur ignore the statement completely likewise opinions foregoing legisla throughout bill moment-of-silence accompanied pose to be observed of silence period permit “To process: tive first class at the commencement voluntary prayer of meditation added). (emphasis J. Ala. Senate public schools.” day in all each 410, 535, 150, 307, 967. id., at also See *41 legislature sponsor’s as a whole shared the motive or that majority
a in either house sponsor’s was even aware of the view of the passed. bill when it was The sole relevance of sponsor’s statements, they therefore, is that reflect the personal, subjective single motives legislator. of a No case 195-year in the history supports of this Court the disconcert- ing postenactment idea that legis- statements individual lators are determining relevant in the constitutionality of legislation.
Even if legislator’s an individual after-the-fact statements rationally could opinions considered relevant, all of the fail sponsor to mention that the also testified pur- that one of his poses drafting sponsoring and the moment-of-silence bill up widespread was to clear a misunderstanding that a school- legally prohibited child is engaging from in silent, individual steps once he inside a building. school See App. 53-54. testimony That important is at least as as the upon, statements the Court surely relies testimony permissible purpose. manifests
The Court also on relies the admissions of Governor James’ answer to the complaint. second amended Strangely, how- neglects ever, the Court to mention that there was no trial bearing constitutionality on the of the Alabama statutes; trial unnecessary became when the District Court held that the Establishment apply Clause does to the states.2 The absence of a trial on the issue of the constitutionality of §16-1-20.1 significant is because the answer filed Superintendent State Board and of Education did not make the same admissions that the Governor’s answer made. See 1 Record 187. The Court cannot know whether, if these cases been had tried, those state officials would have offered evidence to appellees’ allegations contravene concerning legislative purpose. completely Thus, it is inappropriate to accord relevance to the admissions in the Governor’s answer. days The four of trial to which the Court refers concerned only the
alleged practices
vocal,
group prayer in the classroom.
principal
opinions
preceding
conclude
several
predecessor
§
statute
its
16-1-20.1
between
difference
inclusion
behind
the sole
proves that
§
to endorse
voluntary prayer”
16-1-20.1 was
phrase “or
way
simply
reasoning
subtle
prayer. This
promote
component
exclusively
focusing
on
Such
examining
a whole.
the statute
than
rather
statute
*42
hold,
to
the Court
lead
that —would
logic
be called
it can
—if
provides
may
that
statute
example,
enact
a state
that
for
parents of all
transportation
the
to
for bus
reimbursement
parochial
parents
school
of
not add
but
schoolchildren,
for
existing
providing reimbursement
program
anto
students
Congress
the
amended
students.
parents
school
of
ago
years
Allegiance
the words
add
statutory Pledge
31
L.
68 Stat.
1954, Pub.
Act of June
God.”
“under
judgment
support
opinions
the
Do the several
249.
would be
That
Pledge unconstitutional?
today render the
focusing
difference
on the
consequence
method
of their
predecessor
rather than
§
statute
its
16-1-20.1
between
holding
Any
would
§
such
examining
a whole.3
16-1-20.1 as
decisionmaking in
mockery
Estab-
of our
amake
of course
method
the Court’s
And even were
cases.
Clause
lishment
voluntary prayer” in
“or
of the words
the inclusion
correct,
clearly permissible
wholly
§
is
consistent
16-1-20.1
voluntary prayer
not
is
clarifying
silent,
that
purpose building.4
public school
in the
forbidden
states that
Pledge
amending the
legislation
Report on
The House
people
“our
principle
that
to affirm
was
amendment
of the
of the
moral directions
upon the
dependent]
[are
Government
and our
(1954).
this
Sess., 2
If
Cong., 2d
1693, 83d
Rep. No.
R.H.
Creator.”
ante, at
“endorsement,”
religion, see
“acknowledgment,”
simply
is
far too
is
the distinction
judgment),
J., concurring
(O’Connor,
78, n. grasp.
for me
infinitesimal
may survive
statutes
similar
suggest
that other
several, opinions
J., concurring);
59; ante, at 62
ante, at
(Powell,
See
today’s decision.
true,
If this
judgment).
J., concurring
ante,
(O’Connor,
78, n. 5
that
the Court
given
comprehensible,
even less
opinions become
these
(c) The Court’s extended treatment of the “test” of Lemon
(1971),
suggests
Kurtzman,
U. S. 602
pre-
a naive
occupation
easy, bright-line approach
with an
addressing
for
repeatedly
constitutional issues. We have
cautioned that
rigid
Lemon
caliper
did not
capable
establish a
resolving
every Establishment
sought only
Clause issue, but that it
provide “signposts.”
[Establishment
“In
Clause]
each
case,
inquiry
line-drawing;
calls
per
no fixed,
se rule can
Lynch Donnelly,
be framed.”
(d) The notion step Alabama statute is a toward creating an established church if on, borders it does not tres- pass into, the ridiculous. remotely The statute does not *43 religious liberty; threaten affirmatively it the furthers values religious freedom and that tolerance the Establishment designed protect. Clause was to pressuring Without those pray, who do not simply wish to the oppor- statute an creates tunity plan, pray to think, to or Congress to if one wishes—as by providing chaplains does chapels. and It accommodates purely private, voluntary religious choices of the individ- pupils pray ual who wish creating while at the same time nonreligious time for reflection for those who do not choose to pray. provides The meaningful statute opportunity also appreciate for schoolchildren to the absolute constitutional right of each worship individual to and believe as the indi- vidual only wishes. The statute “endorses” the view that religious observances of others should be and, tolerated holds statute this invalid when there legitimate is no “imper- evidence of purpose; missible” there hardly could be less evidence “impermissible” purpose than was shown in these cases. government not If the possible, accommodated. where wholly in a so religious it does when needs accommodate neutrality” the “benevolent manner, noncoercive and neutral stand- constitutional long the correct considered have that we indifference” “callous quickly into translate ard will Clause consistently the Establishment held has Court require. does not ignored ofJustice today admonition the wise has
The Court adjudication is Goldberg of constitutional measure that “the distinguish real threat willingness between ability Schempp, Abington District School shadow.” mere opinion). (concurring The innocuous stat- atS., 374 U. rise to not even does down strikes the Court ute that paradoxically shadow.” “mere O’Connor level of Justice threat a serious acknowledges: to discern difficult “It thoughtful school- liberty silent, a room from they if that, “even add to I would at 73.5 Ante, children.” pray.” choose to brought a mouse.6 forth have labored
The mountains dissenting. White, Justice opinion The Chief agreeing part with the the most
For invalidating judgment Court’s from the I dissent Justice, 1984). ap- I it is (Supp. § do, Because 16-1-20.1 Ala. Code pro- my Amendment First does parent view many (1) authorizing requiring in so or statutes either scribe (2) begin a stat- or classes silence before moment of words a initially passed, a moment provides, it when is ute that opin- filed prayer. I read As meditation silence for wouldn’t probably “T has stated: in this plaintiff action principal *44 .... statute prayer or meditation the silent just on brought the suit have concern, un me much have caused existed, that wouldn’t that If that’s all preferred was the suggested way in a that implemented it less was 62, (Apr. 1 col. A. J. Relief, A. B. 71 Malone, Prayers for activity.’” Jaffree). 1985) (quoting Ishmael (Ars Poética), 139. line Ill Horace, Epistles, bk. majority
ions, approve the Court would statutes that provided for a moment of silence prayer. but did not mention if But a student pray asked whether during he could it moment, is difficult to believe that the teacher could not answer the affirmative. If that is the I case, would not invalidate a statute provided that at the legisla- outset question tive answer “May pray?” I This sois even if the Alabama statute is infirm, which I do not believe it is, peculiar legislative because of its history. appreciate
I explication Rehnquist’s Justice of the history Religion Clauses of the First Amendment. Against history, quite it would be if understandable we undertook to particularly dealing reassess our cases with these Clauses, dealing
those with the Establishment Clause. Of I course, step have many been out of with of the Court’s dealing subject decisions with this and it matter, is thus not surprising support I that would a basic reconsideration of precedents. our
Justice Rehnquist, dissenting.
Thirty-eight years ago this Court, in Everson v. Board of (1947), Education, U. 1,S. exegesis summarized its Establishment Clause doctrine thus:
“In the against words of Jefferson, the clause establish- religion ment of law was intended to erect ‘a wall separation between church Reynolds and State.’ (1879)].” [98 United States, U. S. language Reynolds,
This from involving a case the Free Ex- ercise Clause the First Amendment rather than the Estab- quoted lishment Clause, from Thomas Jefferson’s letter Danbury Baptist phrase contemplate Association the “I sovereign reverence that act of the whole American people legislature which declared that their should ‘make no respecting law religion, an prohibiting establishment the free building thereof,’ exercise separation thus a wall of *45 92 Writings Jefferson Thomas of and State.” church
between 1861).1 (H. Washington ed. upon doctrine constitutional sound impossible to build It is history, un- but understanding constitutional of mistaken a fortunately expressly been has Clause Establishment the nearly 40 metaphor for misleading freighted Jefferson’s time the in France of course was Jefferson years. Thomas Rights ofBill as the known Amendments the constitutional His by the States. ratified Congress passed were note short awas Baptist Danbury Association the letter were Amendments years the after courtesy, written of ob- detached seem would Congress. He passed history contemporary of source ideal than as a less server First the of Religion Clauses meaning the of the as to Amendment. he whom Madison, with Virginian, James fellow Jefferson’s Virginia the of the enactment for battle joined in the was part large a play Liberty as did Religious of of Statute had two Rights. He drafting Bill the of anyone in the present regard: he was in this advantages Jefferson over leading of the Member a he and was States, United in the pro- of the record the turn to we when Congress. But First ceedings adoption leading up to the Congress First including Constitution, Clause Establishment of the far dif- see thereto, we significant contributions Madison’s simplified “wall highly than picture its ferent and State.” church separation between ratifica- over Colonies Thirteen in the During debates frequently arguments one of Constitution, tion ofBill without was ratification by opponents used general liberty Gov- new individual guaranteeing Rights “wall for precedent as direct authority cited only is Reynolds it inapt; dealt truly Reynolds S., at 16. 330 U. theory.” separation polygamy challenge a federal Clause Exercise Free Mormon’s with a law. ernment potential carried with it a tyranny. typical
response argument to this part on the of those who favored *46 ratification general was that the Government by established only Constitution delegated had powers, and that these delegated powers were so limited that the Government would have no occasion to violate individual liberties. This re- sponse satisfied some, but not others, and of the Colonies which ratified by early Constitution proposed one or another guaranteeing amendments liberty. individual Hampshire, Three—New New Virginia York, and —included in one form or another a religious declaration of freedom. See 3 J. Elliot, Debates on the Federal Constitution 659 (1891);1 id., at 328. Rhode Island and flatly North Carolina ratify refused to the Constitution in the of absence amend- ments in the Rights. nature of a Bill of 1 id., at 334;4 id., at Virginia 244. proposed North Carolina guaran- identical tees of freedom: “[A]ll equal, men have an natural and right unalienable to the free religion, exercise of according to the dictates particular conscience, and ... no religious sect or society ought to be favored or by established, law, in preference to others.” id., at 659; id., at 244.2 On June 8, 1789, James Madison rose in the House of Representatives and “reminded the House that this was the day that he had heretofore bringing named for forward amendments Constitution.” 1 Cong. Annals of 424. subsequent Madison’s urging remarks in adopt House to his proposed drafts of amendments were less those a dedicated advocate of the wisdom of such measures than prudent those of a seeking statesman the enactment of meas- 2The York New and Rhode Island proposals quite were They similar. stated particular that no “religious or society sect ought to be favored or by established preference law in to others.” 1 Elliot’s Debates, 328; id,., at 334. could which citizens his fellow sought a number ures good. He great deal might do a surely harm no do alia: said, inter every is bound House this appears me “It pass over session first let prudence, not to
motive things Legislatures, some proposing the State without render will Constitution, that incorporated into the to be States, United people theof acceptable whole to the as it I majority them. acceptable to a found been it has as something why should among reasons other wish, adoption of friendly to the been had who those done, proving to opportunity of have Constitution this sincerely they as were opposed it to that were who those Republican Government, liberty *47 to devoted adoption wishing of the charged them those who anof lay foundation the to in order Constitution this thing to a desirable despotism. be It will aristocracy or every the com- of member of extinguish the bosom from among those are there apprehensions that any munity, liberty deprive them countrymen wish who his honorably bled. fought valiantly and they for which a nature of such desired amendments if are And there they in- can be Constitution, and injure will doubting part of give satisfaction grafted so as Govern- Federal of the friends fellow-citizens, the our concession and spirit of deference evince will ment Id., distinguished.” they been hitherto have for which 431-432. at ultimately be- proposed for what language Madison was this: Amendment First Religion Clauses
came abridged on account be shall rights none civil “The religion any national worship, shall nor religious or belief rights con- equal full and shall nor established, infringed.” pretext, any manner, on inbe science 434. Id., at day
On the same proposed that Madison them, the amend- ments which formed the Rights basis for Bill were by referred the House to a Committee of the Whole, after delay several weeks’ were then referred to a Select consisting Committee of Madison others. The Com- mittee proposal revised regarding Madison’s the establish- religion ment of to read:
“[N]o shall be established law, nor shall the equal rights infringed.” of conscience be Id., 729. at proposed The Committee’s revisions were debated in the August House on 15, 1789. The entire on debate the Reli- gion Clauses is contained in two full columns of the “Annals,” particularly does not seem illuminating. id., See Representative 729-731. Sylvester Peter of New York ex- pressed his dislike for the might revised version, because it tendency have a religion altogether.” “to abolish Represent- Vining suggested ative John parts that the two of the sen- transposed; Representative tence be Elbridge Gerry thought language changed should be religious to read “that no doctrine shall be Roger established Id., law.” at 729. Sherman of Connecticut had the oppos- traditional reason for provisions ing Rights of Bill Congress had no —that delegated authority to “make establishments”—and opposed adoption therefore he Rep- of the amendment. Maryland resentative Daniel thought Carroll of it desirable to *48 adopt proposed, saying the words “[h]e would not contend gentlemen with phraseology, about object the his to was secure the substance in satisfy a such manner as to the part wishes of the community.” honest of the spoke, Madison then apprehended and said that “he the meaning Congress of the words be, to that should not estab- religion, lish a legal and enforce the observation of it any law, compel nor worship men to contrary inGod manner to their Id., conscience.” at 730. He said that some of the state thought Congress conventions had might rely that on rights infringe Proper the Necessary to Clause and the prevent religion, “to a national toor establish conscience intended, presumed was the amendment he effects these language expressed as nature thought the it as well he Ibid. admit.” would expressed Huntington the Benjamin then
Representative might language in such “be taken the Committee’s that view religion. extremely cause of the hurtful to to be as latitude had been mean what to amendment the He understood might Virginia; but others gentleman from expressed the upon it.” put construction another to find it convenient the that in concerned was Huntington, Connecticut, from religions were state-established England where States, New might exception, courts federal the than the rather rule the obligation upon an based to entertain claims not be able organization to contribute bylaws aof the under worship. place building of a support or the a minister way in such a be made would hoped amendment “the that He exercise of rights and a free conscience, to secure pro- patronise those who rights religion, not to but religion Id., at 730-731. at all.” fessed no “na- of the word responded the insertion that Madison “religion” version in the Committee the word before tional” lan- satisfy had criticized those who minds of should might people sect feared one guage. “He believed together, and estab- pre-eminence, combine or two obtain compel they to conform. others would to which lish it introduced, was ‘national’ thought if the word He object directly it was point the amendment would Representative Samuel prevent.” Id., at 731. intended Madison’s expressed as dissatisfied himself Livermore thought if the better it would be proposed amendment, “Congress read that language altered to were Committee rights infringing religion, touching no make laws shall Ibid. of conscience.” opposition Gerry spoke use of the to the
Representative during expressed feelings strong because “national” word *49 the ratification debates that a government, federal not a government, national was created the Constitution. thereby Madison proposal withdrew his but insisted that his reference to a religion” “national only referred to a national establishment and did not mean that the Goverment was a national question one. The was Representative taken on passed Livermore’s motion, which a vote 31of for and 20 against. Ibid. The following week, apparent without debate, the House voted to alter language Religion Clauses to “Congress read shall make no law establishing religion, or to prevent the free exercise thereof, or infringe rights conscience.” Id., at 766. The floor debates the Senate were secret, and reported therefore not in the Annals. The September Senate on 3, 1789, considered several different Religion forms of the reported Amendment, and this lan- guage back to the House: “Congress shall make no establishing law articles of faith or a worship, mode of or prohibiting the free exercise of religion.” C. Downey, Antieau, A. & E. Roberts, Free- dom From Federal Establishment 130 The House accept refused to changes Senate’s in the Rights Bill of and asked for a conference; the version which emerged from the conference was that which ultimately way found its into the part Constitution as a of the First Amendment.
“Congress shall make no respecting law an estab- religion, lishment of or prohibiting the free exercise thereof.” The House and accepted Senate both language this on days, successive and proposed Amendment was in this
form.
On the basis of the record of proceedings these in the House of Representatives, James Madison was undoubtedly important the most among architect the Members of the *50 Rights, Bill the of became which Amendments of the House speaking of as advocate sensible an Madison it James but was incorporating compromise, of an advocate legislative not as Liberty Religious into the United Virginia of Statute the During in the debate the ratification Constitution. States opposed actually idea the Virginia had Madison Convention, in sponsorship Amendments Rights. of the any Bill His of of obviously in the believer of a zealous not that the House was necessity might Religion felt it of one who Clauses, but the of satisfy who good, those harm, and would could do no do some Congress on the condition the Constitution had ratified original language Rights.3 “nor shall propose His a Bill of obviously religion con- does not any be established” national separation” and State church between “wall of form to the latter-day to him. ascribed commentators have idea which meaning language— his explanation the of the on floor His religion, and enforce Congress not establish should “that by ilk. legal of the same When it law” is the observation proposal Huntington replied in the debate over to he House, he Committee from Select came which urged by religion language established “no shall be that the inserting by in “national” word be amended law” should “religion.” front of word glimpses indisputable of Madison’s these from
It seems in thinking, floor of the House actions on the reflected as prohibit designed the Amendment that he saw prevent perhaps religion, national of a establishment requiring among see it as He did not sects. discrimination government part neutrality between on opinion cor- irreligión. in Everson—while Thus the Court’s together in their bracketing and Jefferson Madison rect leading the enactment their home exertions in State he did France, stated that Madison he sent to Jefferson In a letter support it planned to Rights he Bill of but importance in a not see much use, might it [and] . . . “anxiously others desired it because was Writings of James of disservice.” could not be executed properly if 1904). (G. Hunt ed. Madison
Virginia
Religious
Statute of
Liberty
totally
incorrect
—is
suggesting that Madison carried these views onto the floor
of the United States
Representatives
House of
when he
proposed
language
which
ultimately
would
become the
Rights.
Bill of
repetition
of this error
opinion
in the Court’s
in Illi
nois ex rel. McCollum v. Board Education,
None the other Congress Members spoke of who during August expressed 15th debate slightest indication they thought that language before them from the Select Committee, or the evil to be require aimed at, would that the Government absolutely neutral as religion between irreligión. The evil to be aimed at, so far spoke as those who were appears concerned, been have the establishment of a national perhaps preference church, and religious of one sect over another; it definitely but was not concerned about whether the might Government religions aid all evenhand- edly. If one were to followthe advice of Justice Brennan, concurring Abington School Schempp, District v. supra, at 236, and construe the light Amendment in the par- of what 4State prevalent establishments were throughout the late 18th early Const, 19th centuries. Const, See Mass. 1780, of 1, Part Ill; Art. N. H. 1784, of VI; Art. Md. Declaration Rights of Art. XXXIII; R. I. Charter of (superseded 1842). consequences challenged “practices threaten those . . . ticular they deeply whether, short, feared; the Framers which interdependence type reli- promote between that tend to designed to gion was First Amendment which the and state say prevent,” the First Amendment have to one would broadly than read no more should be Clause Establishment prevent a national the establishment to governmental preference over another. one sect Congress, reenacted the which the First The actions of governance of the Northwest Northwest Ordinance Congress Territory did not the view confirm reli- neutral between should be mean that the Government up Representatives irreligión. gion took The House of day intro- as Madison on the same the Northwest Ordinance proposed the Bill of which became amendments duced his Rights; was of the Federal Government at that time while to the Constitution draft amendments course not bound by Congress, say nothing yet proposed been which had highly unlikely that the House States, it seems ratified simultaneously proposed Representatives consider would important piece and enact an the Constitution amendments to *52 legislation the intent of conflicted with which of territorial proposals. re- Ordinance, Stat. The Northwest those provided of 1787and the Northwest Ordinance enacted “[r]eligion, morality, necessary good knowledge, being to and happiness government the mankind, schools and and the encouraged.” Id., at forever be means of education shall (a). grants in Northwest Terri- for schools the n. Land tory It was not until 1845 not limited to schools. were Congress grants in and Ter- land the new States limited Antieau, C. 788; schools. Stat. ritories to nonsectarian Downey, Estab- Freedom From Federal Roberts, A. & E. (1964). lishment 163 Representatives day voted to House of the after the
On Religion adopt Amendment Clauses the form of the First Representative ultimately proposed ratified, and which was proposed Elias Boudinot asking a resolution President George Washington to Thanksgiving issue Day Proclama- tion. Boudinot said he letting “couldnot think the session pass offering over without opportunity an all to the citizens of the United joining States of with returning one voice, to Almighty God their sincere many thanks for the blessings he poured had upon down them.” 1 Cong. Annals of Representative objected Aedanas Burke the resolution be- cause he did not like mimicking “this European customs”; Representative objected Thomas Tucker that whether or not people the had reason be satisfied with the Constitution something was gress, that the States knew better than the Con-
and in event “it is a matter, and, as such, proscribed to us.” Representative Id., at 915. Sherman supported only the resolution “not aas laudable one in itself, by but as precedents warranted Holy number of Writ: for instance, the thanksgivings solemn rejoicings which took place in the time of building Solomon,after temple, the of the point. was a case example, This thought, worthy he Christian present imitation on the occasion . . . .” Ibid.
Boudinot’sresolution was carried the Sep- affirmative on tember 25, 1789. Boudinot and Sherman, who favored the Thanksgiving Proclamation, voted in adoption favor proposed of amendments including Constitution, Religion opposed Clauses; Tucker, who Thanksgiving against Proclamation, adoption voted of the amendments which became Rights. the Bill of
Within two by weeks of this action George the House, Washington responded to the Joint Resolution which now changed had been language to include the that the President people “recommend to day United States a public thanksgiving prayer, to be observed acknowl- edging grateful many hearts signal favors of *53 Almighty especially by God, affording opportunity them an peaceably to government establish a form of safety for their happiness.” and Messages J. Papers Richardson, and of p. The Presidential 1789-1897, Presidents, the in these words: was couched Proclamation assign Thurs- and I recommend therefore, do “Now, be devoted day next, to day, of November 26th the great and of that to the service people States of these the all the author Being beneficent glorious is the who may that we then be; will or that good is, was, humble and rendering sincere Him our unto all unite people of protection of the and kind care for His thanks becoming for the nation; previous country their to this inter- favorable and signal mercies and manifold conclusion providence in course and positions of His tranquillity, degree great for the war; late enjoyed; for have since plenty we which and union, have been in which we manner peaceable rational and government our constitutions to establish enabled one particularly national happiness, safety and and liberty and civil lately instituted; for now have of ac- means we blessed, and arewe with which general, knowledge; diffusing and, quiring useful and hasHe been which great favors various and for all upon pleased us. confer to humbly of- in most unite then we also that
“And great Lord supplications to the prayers fering and our pardon na- our Him to and beseech Nations, and Ruler whether transgressions; all, us enable to other tional and perform and several private our stations, to punctually; render our properly and duties relative people blessing to all the Government National just, and con- constantly being wise, a Government faithfully discreetly and executed and laws, stitutional obeyed; sovereigns and guide nations protect all and us), and to kindness to (especially shown have such peace, concord; governments, and good them with bless practice knowledge of true promote the among them of science the increase virtue, and
103 grant generally, unto all mankind such and, us; temporal prosperity degree to be as He alone knows Ibid. best.” Washington,
George Madison all and James Adams, John Thanksgiving did Proclamations; Thomas Jefferson issued saying: not, enjoin- religious
“Fasting exercises; are religious society Every ing discipline. them an act of right these ex- the times for to determine for itself has a according objects proper them, for and the ercises, right particular never can and this tenets; their own the Constitution hands, in own where safer than their Writings deposited 429 11 of Thomas Jefferson it.” has 1904). (A. Lipscomb ed. 18th into the 19th moved from the States
As the United
again public
appropriated
century, Congress
mon-
time and
eys
support,
carried on
Indian education
of sectarian
Typical
organizations.
was Jefferson’s
of these
provided
treaty
annual
Indians,
Kaskaskia
which
with the
priest
support
Roman Catholic
for the Tribe’s
cash
aid to sectarian edu-
until
when
church.5 It was not
treaty
part:
stated
whereas,
baptized and
have been
“And
greater part
of said Tribe
attached,
church,
they are much
to which
received into the Catholic
to-
annually
years one hundred dollars
give
for seven
States will
United
.
. . . three hundred
priest
religion
[a]nd
of that
. .
support
of a
wards
79.
erection of a church.”
Stat.
dollars,
the said Tribe
to assist
provided a trust en-
Congress had
1823 the United States
From 1789 to
Society
Breth-
12,000
United
up to
acres of land “for
dowment of
g.,
e.
See,
46, 1
ch.
Gospel among the Heathen.”
ren,
propagating the
for
periodically and
was renewed
creating this endowment
490. The Act
Stat.
Adams,
Washington,
and Jefferson.
signed
into law
were
the renewals
limited to Indians.
aid of
were not
Congressional grants for the
including acreage
Company,
provided land to the Ohio
Congress
In 1787
in 1792. See
grant was reauthorized
support
religion.
This
for the
the land
of Ohio to sell
Congress
In
authorized the State
257.
Stat.
annually,
cation for Indians had reached $500,000
that Con-
gress
appropriating money
decided thereafter to cease
education
sectarian schools. See Act of June 7, 1897, 30
Leupp,
62, 79; Quick
Stat.
(1908);
cf.
Bear v.
210 U.
77-79
S.
*55
Religion
J. O’Neill,
and Education Under the Con-
(1949).
generally
Separation
stitution 118-119
See
R. Cord,
history
of Church and State 61-82
This
shows the
fallacy
any
of the notion found in Everson that
“no tax
religious
amount”
be levied for
activities in
form.
Joseph Story, a Member of this Court from 1811 to during professor and much of that time a at the Harvard Law published by comprehensive School, far the most treatise on the United appeared. States Constitution that had then Story’s Volume 2 of Commentaries on the Constitution of (5th 1891) the United States 630-632 ed. discussed the mean- ing of the Establishment Clause of the First Amendment way: this
“Probably adoption at the time of the of the Constitu- tion, and of the amendment to it now under consider- [First general ation Amendment], the if not the univer- sal Christianity ought sentiment America was, that encouragement receive from the State so far as was not incompatible private rights with the of conscience religious worship. the freedom attempt An to level religions, all policy and to make it a matter of state hold all in utter indifference, would have created univer- disapprobation, sal indignation. if not universal object [First] [A]mendment “The real of the was not to much countenance, less to advance, Mahometanism, or infidelity, by prostrating Christianity; Judaism, but to rivalry among all prevent exclude Christian sects, and to set aside religion proceeds and use the support “for the . . . and for no other use or whatsoever. ...” 4 Stat. 618-619.
any national ecclesiastical establishment which should give hierarchy patronage to a the exclusive of the na- government. tional It thus cut off the means of reli- (the gious persecution pest ages), vice and of former rights of the subversion of the conscience matters of religion, trampled upon which had been almost from the days (Foot- Apostles present age. to the . . .” omitted.) *56 prohibit constitutions contain no which recognition superin- authorities from such solemn of a tending public in Providence transactions and exercises general religious inspires, as the sentiment of mankind proper dependent and as seems meet and in finite and beings. religious Whatever be the shades of belief, acknowledge recognizing all impor- must the fitness of superintending tant human affairs the care and control acknowledg- Great Governor of the Universe, and of ing thanksgiving bowing with his boundless favors, or penalties contrition when visited with the of his broken principle laws. No thanksgiving of constitutional law is violated when days appointed; chaplains
or fast are when designated army navy; legislative are for the and when opened reading sessions are or the of the Scriptures, religious teaching encouraged by or when is general exemption religious worship of the houses of support government. from taxation for the of State Un- doubtedly spirit require, of the Constitution will all these cases, that care be taken to avoid discrimination any religious against or denomination one in favor of or things power does not be- of these to do sect; but susceptibility simply its because of unconstitutional come Id., at *470-*471. . . to abuse.
Cooley added that worship, recognition religious public
“[t]his however, mainly, upon entirely, perhaps not even based Being Supreme himself as of what is due to the sense good all but the same reasons law; of all and of author government policy to aid institu- induce the state which charity of instruction will incline and seminaries tions religious worship institu- it also to foster public valuable, morals and as conservators tions, indispensable, preservation to the if not assistants Id., at *470. order.” that the Establishment seem from this evidence It would well-accepted acquired a the First Amendment had Clause of religion, meaning: of a national it establishment forbade preference among religious sects or denominations. forbade dictionary defined the word “es- the first American Indeed, founding, ratifying establishing, as “the act of tablishment” episcopal religion, ordaining,” “[t]he as in form of such Dictionary England.” 1 Webster, N. American called, so 1828). (1st English Language The Establishment ed. neutrality government require re- did not between Clause prohibit ligion irreligión nor did it the Federal Gov- religion. nondiscriminatory providing aid ernment from *57 proposition simply There no historical foundation for separation” the “wall of that the Framers intended to build in Everson. that was constitutionalized Notwithstanding basis for this of a historical absence might theory rigid separation, well have the wall idea concept, analytical misguided had it served as a useful albeit principled results Establish- to unified and led this Court unfortunately, opposite, has been ment Clause cases.
107 years Everson our Establishment Clause in the 38 since true; principled recent nor unified. Our have been neither cases pluralities,6 many hopelessly opinions, have divided of them separa embarrassing candor conceded that “wall merely barrier,” and variable “blurred, indistinct, a tion” is “dimly per only wholly and can be “is not accurate” which (1971); 614 Kurtzman, 602, Lemon v. 403 U. S. ceived.” (1971); Wol Richardson, 672, 677-678, 403 U. S. Tilton v. (1977);Lynch Donnelly, v. 229, 433 U. S. 236 Walter, man v. (1984). 673 668,
465 U. S. practical support or its due to its lack of historical Whether proved unworkability, has all but useless the Everson “wall” adjudication. guide It illustrates to sound constitutional Benjamin only Cardozo’s observation too well the wisdom of narrowly “[mjetaphors for watched, are to be law they thought, starting end often to liberate as devices enslaving Berkey R. 244 Y. Co., v. Third Avenue N. it.” (1926). N. E. 61 94, 58, 155 84, injury greatest notion is its mischie- of the “wall”
But the
judges
the actual intentions of
from
vous diversion
litigation,”
Rights.
Bill
The “crucible of
drafters
adjudicating
disputes
adapted
on
factual
ante,
is well
testimony presented but no amount of
court,
the basis of
judicial opinions
repetition
make
can
of historical errors
separation
church
The “wall of
between
the errors true.
history, metaphor
metaphor
based on bad
is a
State”
judging.
guide
proved
It should
useless as a
which has
frankly
explicitly abandoned.
6
Pittenger, 421
Meek v.
Richardson 403 U. S.
(1971);
Tilton v.
677
Works,
Maryland
Public
Roemer v.
Bd.
(1975)
426
(partial);
349
U. S.
Walter,
(1977).
Wolman
229
(1976);
v.
433 U. S.
U. S.
have been decided
Many
other Establishment Clause eases
of our
Religious Liberty
Public Education &
majorities. Committee
bare 5-4
Valente, Larson v.
Regan,
The Court has more to add some mor- through three-part tar to Everson’s wall test Lemon v. supra, Kurtzman, at 614-615, which served at first to offer a purposes more useful test for of the Establishment Clause metaphor. Generally than did the “wall” stated, the Lemon proscribes test purpose state action that has a sectarian impermissible governmental effect, or an entangle- causes religion. ment with Lemon cited Board Education v. Allen, U. S. (1968), “purpose” prongs the source of the and “effect” three-part opinion explains, test. The Allen however, purpose
how it inherited the and effect elements from Schempp and Everson, both of which contain the historical errors supra, described above. See Allen, at 243. Thus purpose prongs and effect have the same historical defi- concept they ciencies as the way wall itself: are in no based language on either the or intent of the drafters. purpose prong proved
The secular applica- has mercurial in tion fully because it has never been defined, and we have fully never operate. stated how the purpose test tois If the prong is intended void those aids to sectarian institutions accompanied by legislative purpose a stated religion, aid prong nothing will long legislature condemn so as the purpose utters a gion. says nothing secular aiding about reli- constitutionality Thus may depend of a statute upon legislators put what legislative history into and, importantly, they more what purpose prong leave out. The only requires means little if legislature it express any purpose secular and omit all sectarian references, because legislators might just do legislative that. Faced with a valid purpose, secular properly ignore we purpose could not without a doing factual basis so. Valente, Larson v. (1982) U. S. 228, 262-263 dissenting). J., (White, if However, prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or providing not, then most statutes such as aid, *59 rides for sectarian children,
textbooks or bus school will fail purposes every because one of the behind statute, whether target largesse. stated or is to aid the of its In other not, purpose prong requires if words, an absence of intent expressed, institutions, to aid sectarian whether or not few pass in state laws this area could and we would be test, required religion to void some state aids to which we have already g., upheld. supra. Allen, E. entanglement prong
The of the Lemon test came from v. Tax in- Comm’n, 664, Walz 397 U. S. Walz challenge volved a constitutional to New York’s time-honored practice providing property exemptions state tax to church property worship. opinion in “un- used The Walz refused to objective [of dermine the ultimate constitutional the Estab- by history,” Clause] id., lishment as illuminated upheld exemption. the tax The Court examined the histori- relationship cal between the State and church when church property challenged in issue, was and determined that the exemption entangle tax so the church did not New York with religion. cause an Inter- as to intrusion or interference with arguably ferences with should dealt under be entanglement inquiry Clause, the Free Exercise but the survey in Walz was consistent with that case’s broad relationship religious property. between state taxation and always inquiry
We have not followed reflective into Walz’ entanglement, g., supra, E. at 254. Wolman, however. entanglement prong that, One the difficulties with the logic “in- when it creates an Walz, divorced from paradox” required soluable in school aid cases: have aid we put parochial closely lest it be schools to be watched yet supervision Qlose an sectarian this itself will create use, entanglement. Maryland Works, Public Roemer v. Bd. concurring judg in U. S. (1976) (White, J., 768-769 ment). part example, supra, in in Wolman, For Court nondiscriminatory provision of buses struck the State’s supervision parochial trips, the state school field because trips charge field be too would of sectarian officials certainly self-defeating type result is onerous. This religions. required do not establish ensure that States applied entanglement cases like Wolman also test regulations properly myriad ignores state administrative placed upon curriculum, such as attend- institutions sectarian requirements schools, for sectarian ance, and certification Avoiding entangle- safety regulations for churches. fire and important an consid- church and State ment between entanglement prong if Walz, like but eration a case applied in the and church relations automatic were to all state applied aid cases, it has been to school manner which *60 hardly require anything institu- of church-related State could receipt for of financial assistance. tions as a condition Lemon test has no arise because the These difficulties history grounding in the of the First than more Amendment three-part theory upon does which it rests. the wall represents effort to craft a workable rule test a determined only faulty historically doctrine; from a but the rule can be as attempts three-part sound it to service. The doctrine deciding simply provided adequate standards for test has not slowly as this Court has come cases, Establishment Clause Lemon test has this worse, to realize. Even caused plurality opinions, see Court fracture into unworkable supra, depending upon 6, n. how each of the three factors applies to a certain The results from our school state action. difficulty in services cases show the we have encountered making yield principled the Lemon results. test example, may parochial
For lend to school chil- State geography maps dren textbooks7 contain of the United may maps States, but the State not lend of the United States geography may in A for use class.8 State lend textbooks history, may film on American colonial but it not lend a on Allen, 7 Board Education 392 U. S. 8Meek, S., permissible, A U. 362-366. science book is a science Wolman, S., kit is not. 433 U. at 249. See
George Washington,
projector
or a film
history-
show it
may
A
class.
State
may
lend classroom
but
workbooks,
not
parochial
lend
workbooks which the
school children write,
rendering
thus
may pay
them
A
nonreusable.9
State
for bus
transportation
may
pay
schools10but
not
for bus
transportation
parochial
public
from the
school to the
zoo or
history
natural
trip.11
may pay
museum for a field
A State
diagnostic
for
parochial
services
conducted
school but
therapeutic
given
building;
services must be
ain
different
speech
hearing
“services” conducted
the State inside
Pittenger,
sectarian school are forbidden,
Meek
(1975),
may
U. S.
speech
349, 367, 371
but the State
conduct
hearing diagnostic testing
inside the sectarian school.
Exceptional
parochial
Wolman,
S.,U.
at 241.
school
may
counseling,
students
place
receive
it
but must take
parochial
outside of the
parked
school,12such
inas
a trailer
may give
Id.,
down the street.
at 245. A State
cash to a
parochial
pay
school to
for the administration of state-
reporting
written tests and state-ordered
services,13but it
may
provide
teacher-prepared
not
funds for
tests on secular
subjects.14 Religious
may
given
public
instruction
may
school,15but the
during
school
release students
day
classes elsewhere, and
enforce at
truancy
tendance at those
classes
its
laws.16
*61
historically
principle
These results violate the
sound
“that
governments
the Establishment Clause does not forbid
. . .
[provide] general
to
welfare under which benefits are distrib-
private
many
uted to
though
individuals, even
of those indi-
9 Meek, supra,
354-355,
3, 4,
See
at
nn.
362-366.
Education,
Everson v. Board
(1947).
(1948). Clauson, (1952).
16 Zorach v.
Although
initially provided
the test
helpful assistance,
g.,
e.
Tilton v. Richardson,
(1971),
The true of the Establishment Clause can history. in seen its Walz, See 397 U. atS., 671-673; see also Lynch, supra, Rights, at 673-678. As drafters of Bill our principles today. the Framers inscribed the that control Any perma- deviation from their intentions frustrates the only type nence of that Charter and will lead to the unprincipled decisionmaking plagued that has our Establish- ment Clause cases since Everson. pro-
The Framers intended the Establishment Clause to designation hibit church as a “national” one. The designed stop Clause was also the Federal Government asserting preference from a for one denomination “incorporation” or sect over others. Given the of the Es- against tablishment Clause as the States via the Fourteenth prohibited Amendment States are as well from Everson, establishing religion discriminating a or sects. between As history abundantly nothing in shows, however, its the Estab- requires government strictly lishment Clause to be neutral irreligión, prohibit between nor does that Clause pursuing legitimate Congress or the from secular ends States through nondiscriminatory sectarian means.
The strikes the Alabama statute because the Court down practice.” as a favored State wished to “characterize Ante, a to those who at 60. It would come as much of shock large Rights number of drafted the Bill of as it will a today thoughtful Constitution, to learn that the Americans prohibits Legisla- majority, the Alabama construed George Washington “endorsing” prayer. himself, ture from passed very Congress request Bill of which at the thanksgiving prayer, day “public Rights, proclaimed grateful by acknowledging hearts the to be observed History Almighty many signal must God.” favors of Country judge his the Father of whether it was strayed today, majority from the has which Court meaning Clause. of the Establishment regulating surely interest a secular has State Nothing in are conducted. schools manner which *63 the Establishment Clause of the First properly- Amendment, prohibits any understood, generalized such “endorsement” prayer. I would judgment therefore reverse Appeals. Court of notes Cooley’s legal authority Thomas eminence as a rivaled that Story. Cooley stated his treatise entitled Constitu- particular religious tional Limitations that aid to a sect was prohibited by the United States Constitution, but he went on say: protect, “But while thus careful to establish, equality, defend freedom and the American provisions