(Cite as: 472 U.S. 38, 105 S.Ct. 2479)
George C.
WALLACE, Governor of the State of Alabama, et al., Appellants
v.
Ishmael
JAFFREE et al.
Douglas T.
SMITH, et al., Appellants
v.
Ishmael
JAFFREE et al.
Nos. 83‑812,
83‑929.
Supreme
Court of the United States
Argued Dec.
4, 1984.
Decided
June 4, 1985.
Parent of
three public school children filed complaint against various school officials
and Alabama state officials which, inter alia, challenged constitutionality of
an Alabama school prayer and meditation statute. The United States District Court for the Southern District of
Alabama, William Brevard Hand, Chief Judge, dismissed challenge to the statute,
554 F.Supp. 1104. An appeal was taken. The Court of Appeals, 705 F.2d 1526,
affirmed in part, reversed in part, and remanded with directions. After a suggestion for rehearing en banc was
denied, 713 F.2d 614, appeals were taken.
The Supreme Court, Justice Stevens, held that Alabama statute [Ala.Code
1975, § 16‑1‑20.1] authorizing a daily period of silence in public
schools for meditation or voluntary prayer was an endorsement of religion
lacking any clearly secular purpose, and thus was a law respecting the
establishment of religion in violation of First Amendment.
Judgment
of Court of Appeals affirmed.
Justice
Powell filed concurring opinion.
Justice
O'Connor filed an opinion concurring in the judgment.
Chief
Justice Burger dissented and filed an opinion.
Justice
White dissented and filed an opinion.
Justice
Rehnquist dissented and filed an opinion.
**2480 *38
Syllabus [FN*]
FN* The syllabus constitutes no part of the
opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United
States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.
499.
In
proceedings instituted in Federal District Court, appellees challenged the
constitutionality of, inter alia, a 1981 Alabama Statute (§ 16‑1‑20.1)
authorizing a 1‑minute period of silence in all public schools "for
meditation or voluntary prayer."
Although finding that § 16‑1‑20.1 was an effort to encourage
a religious activity, the District Court ultimately held that the Establishment
Clause of the First Amendment does not prohibit a State from establishing a
religion. The Court of Appeals
reversed.
Held: Section 16‑1‑20.1 is a law
respecting the establishment of religion and thus violates the First Amendment. Pp. 2486‑2493.
(a) The
proposition that the several States have no greater power to restrain the
individual freedoms protected by the First Amendment than does Congress is
firmly embedded in constitutional jurisprudence. The First Amendment was adopted to curtail Congress' power to
interfere with the individual's freedom to believe, to worship, and to express
himself in accordance with the dictates of his own conscience, and the Fourteenth
Amendment imposed the same substantive limitations on the States' power to
legislate. The individual's freedom to
choose his own creed is the counterpart of his right to refrain from accepting
the creed established by the majority.
Moreover, the individual freedom of conscience protected by the First
Amendment embraces the right to select any religious faith or none at all. Pp. 2486‑2489.
(b) One of
the well‑established criteria for determining the constitutionality of a
statute under the Establishment Clause is that the statute must have a secular
legislative purpose. Lemon v. Kurtzman,
403 U.S. 602, 612‑613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745. The First Amendment requires that a statute
must be invalidated if it is entirely motivated by a purpose to advance
religion. Pp. 2489‑2490.
(c) The
record here not only establishes that § 16‑1‑20.1's purpose was to
endorse religion, it also reveals that the enactment of the statute was not
motivated by any clearly secular purpose.
In particular, **2481 the statements of § 16‑1‑20.1's
sponsor in the legislative record and in his *39 testimony before the District
Court indicate that the legislation was solely an "effort to return
voluntary prayer" to the public schools.
Moreover, such unrebutted evidence of legislative intent is confirmed by
a consideration of the relationship between § 16‑1‑20.1 and two
other Alabama statutes‑‑one of which, enacted in 1982 as a sequel
to § 16‑1‑20.1, authorized teachers to lead "willing
students" in a prescribed prayer, and the other of which, enacted in 1978
as § 16‑1‑20.1's predecessor, authorized a period of silence
"for meditation" only. The
State's endorsement, by enactment of § 16‑1‑20.1, of prayer
activities at the beginning of each school day is not consistent with the
established principle that the government must pursue a course of complete
neutrality toward religion. Pp. 2489‑2493.
705 F.2d
1526 (11 Cir.1983) and 713 F.2d 614 (11 Cir.1983), affirmed.
John S.
Baker, Jr., argued the cause for appellants in both cases and filed briefs for
appellant Wallace in No. 83‑812.
Thomas O. Kotouc and Thomas F. Parker IV filed briefs for appellants in
No. 83‑929.
Deputy
Solicitor General Bator argued the cause for the United States as amicus curiae
urging reversal. With him on the brief
were Solicitor General Lee, Assistant Attorney General Reynolds, Michael W.
McConnell, and Brian K. Landsburg.
Ronnie L.
Williams argued the cause and filed a brief for
appellees.<<dagger>>
<<dagger>> Briefs of amici curiae urging reversal were
filed for the State of Delaware et al. by Charles M. Oberly III, Attorney
General of Delaware, Fred S. Silverman, State Solicitor, and Susan H. Kirk‑Ryan
and Barbara MacDonald, Deputy Attorneys General, Robert K. Corbin, Attorney
General of Arizona, Linley E. Pearson, Attorney General of Indiana, William J.
Guste, Jr., Attorney General of Louisiana, Michael C. Turpen, Attorney General
of Oklahoma, and Gerald L. Baliles, Attorney General of Virginia; for the State of Connecticut by Joseph I.
Lieberman, Attorney General, Henry S. Cohn, Assistant Attorney General, and
Clarine Nardi Riddle; for the Center
for Judicial Studies by Charles E. Rice;
for the Christian Legal Society et al. by Forest D. Montgomery and
Samuel E. Ericsson; for the Freedom
Council by James J. Knicely and John W. Whitehead; for the Legal Foundation of America by David Crump; for the Moral
Majority, Inc., by William Bentley Ball and Philip J. Murren; and for Winston
C. Anderson et al. by Alfred J. Mainini.
Briefs of
amici curiae urging affirmance were filed for the American Civil Liberties
Union et al. by Jack D. Novik, Burt Neuborne, John Sexton, and Nathan Z.
Dershowitz; for the American Jewish
Congress et al. by Marc D. Stern, Justin J. Finger, and Jeffrey P. Sinensky; and for Lowell P. Weicker, Jr., by Stanley
A. Twardy, Jr.
*40
Justice STEVENS delivered the opinion of the Court.
At an
early stage of this litigation, the constitutionality of three Alabama statutes
was questioned: (1) § 16‑1‑20,
enacted in 1978, which authorized a 1‑ minute period of silence in all
public schools "for meditation"; [FN1] (2) § 16‑1‑20.1, enacted in 1981, which authorized a
period of silence "for meditation or voluntary prayer"; [FN2] and (3) § 16‑1‑20.2, enacted in
1982, which authorized teachers to lead "willing students" in a
prescribed prayer to "Almighty God ... the Creator and Supreme Judge of
the world." [FN3]
FN1. Alabama Code § 16‑1‑20
(Supp.1984) reads as follows:
"At the commencement of the first class each
day in the first through the sixth grades in all public schools, the teacher in
charge of the room in which each such class is held shall announce that a
period of silence, not to exceed one minute in duration, shall be observed for
meditation, and during any such period silence shall be maintained and no
activities engaged in."
Appellees have abandoned any claim that § 16‑1‑20
is unconstitutional. See Brief for Appellees 2.
FN2. Alabama Code § 16‑1‑20.1
(Supp.1984) provides:
"At the commencement of the first class of
each day in all grades in all public schools the teacher in charge of the room
in which each class is held may announce that a period of silence not to exceed
one minute in duration shall be observed for meditation or voluntary prayer,
and during any such period no other activities shall be engaged in."
FN3. Alabama Code § 16‑1‑20.2
(Supp.1984) provides:
"From henceforth, any teacher or professor in
any public educational institution within the state of Alabama, recognizing
that the Lord God is one, at the beginning of any homeroom or any class, may
pray, may lead willing students in prayer, or may lead the willing students in
the following prayer to God:
"Almighty God, You alone are our God. We acknowledge You as the Creator and
Supreme Judge of the world. May Your
justice, Your truth, and Your peace abound this day in the hearts of our
countrymen, in the counsels of our government, in the sanctity of our homes and
in the classrooms of our schools in the name of our Lord. Amen."
*41 At the
preliminary‑injunction stage of this case, the District Court distinguished
§ 16‑1‑20 from the other two statutes. It then held that there was "nothing wrong" with § 16‑1‑20,
[FN4] but that §§ 16‑1‑20.1 and 16‑1‑20.2 were both
invalid because the sole purpose of both was "an effort on the part of the
State of Alabama to encourage a religious activity." [FN5] After the trial on the merits, the District
Court did not **2482 change its interpretation of these two statutes, but held
that they were constitutional because, in its opinion, Alabama has the power to
establish a state religion if it chooses to do so. [FN6]
FN4. The court stated that it did not find any
potential infirmity in § 16‑1‑20 because "it is a statute
which prescribes nothing more than a child in school shall have the right to
meditate in silence and there is nothing wrong with a little meditation and
quietness." Jaffree v. James, 544
F.Supp. 727, 732 (SD Ala.1982).
FN5. Ibid.
FN6. Jaffree v. Board of School Comm'rs of Mobile
County, 554 F.Supp. 1104, 1128 (SD Ala.1983).
The Court
of Appeals agreed with the District Court's initial interpretation of the
purpose of both § 16‑1‑20.1 and § 16‑1‑20.2, and held
them both unconstitutional. [FN7] We
have already affirmed the Court of Appeals' holding with respect to § 16‑1‑20.2.
[FN8] Moreover, appellees have not
questioned the holding that § 16‑1‑20 is valid. [FN9] Thus, the narrow question for decision is
whether § 16‑1‑20.1, which authorizes a period of silence for
"meditation or voluntary prayer," is a *42 law respecting the
establishment of religion within the meaning of the First Amendment. [FN10]
FN7. 705 F.2d 1526, 1535‑1536 (CA11 1983).
FN8. Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct.
1704, 80 L.Ed.2d 178 (1984).
FN9. See n. 1, supra.
FN10. The Establishment Clause of the First
Amendment, of course, has long been held applicable to the States. Everson v. Board of Education, 330 U.S. 1,
15‑16, 67 S.Ct. 504, 511‑12, 91 L.Ed. 711 (1947).
I
Appellee
Ishmael Jaffree is a resident of Mobile County, Alabama. On May 28, 1982, he filed a complaint on behalf
of three of his minor children; two of
them were second‑grade students and the third was then in
kindergarten. The complaint named
members of the Mobile County School Board, various school officials, and the
minor plaintiffs' three teachers as defendants. [FN11] The complaint alleged that the appellees
brought the action "seeking principally a declaratory judgment and an
injunction restraining the Defendants and each of them from maintaining or
allowing the maintenance of regular religious prayer services or other forms of
religious observances in the Mobile County Public Schools in violation of the
First Amendment as made applicable to states by the Fourteenth Amendment to the
United States Constitution." [FN12]
The complaint further alleged that two of the children had been
subjected to various acts of religious indoctrination "from the beginning
of the school year in September, 1981"; [FN13] that the defendant teachers
had "on a daily basis" led their classes in saying certain prayers in
unison; [FN14] that the minor children were exposed to ostracism from their
peer group class members if they did not participate; [FN15] and that Ishmael
Jaffree had repeatedly but unsuccessfully requested that the devotional
services be stopped. The original
complaint made no reference to any Alabama statute.
FN11. App. 4‑7.
FN12. Id., at 4.
FN13. Id., at 7.
FN14. Ibid.
FN15. Id., at 8‑9.
*43 On
June 4, 1982, appellees filed an amended complaint seeking class certification,
[FN16] and on June 30, 1982, they filed a second amended complaint naming the
Governor of Alabama and various state officials as additional defendants. In that amendment the appellees challenged
the constitutionality of three Alabama statutes: §§ 16‑1‑20, 16‑1‑20.1, and 16‑1‑20.2.
[FN17]
FN16. Id., at 17.
FN17. Id., at 21.
See nn. 1, 2, and 3, supra.
On August
2, 1982, the District Court held an evidentiary hearing on appellees' motion
for a preliminary injunction. At that
hearing, State Senator Donald G. Holmes testified that he was the "prime
sponsor" of the bill that was enacted in 1981 as § 16‑1‑20.1.
[FN18] He explained that the bill was
an "effort to return voluntary prayer to our public schools ... it is a
beginning and a step in the right direction." [**2483 FN19] Apart from the purpose to return voluntary
prayer to public school, Senator Holmes unequivocally testified that he had
"no other purpose in mind." [FN20]
A week after the hearing, the District Court entered a preliminary
injunction. [FN21] The court held that
appellees were likely to prevail on the merits because the enactment of §§ 16‑1‑20.1 and 16‑1‑20.2
did not reflect a clearly secular purpose. [FN22]
FN18. App. 47‑49.
FN19. Id., at 50.
FN20. Id., at 52.
FN21. Jaffree v. James, 544 F.Supp. 727 (SD
Ala.1982).
FN22. See Lemon v. Kurtzman, 403 U.S. 602, 612‑613,
91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).
Insofar as relevant to the issue now before us, the District Court
explained:
"The injury to plaintiffs from the possible
establishment of a religion by the State of Alabama contrary to the
proscription of the establishment clause outweighs any indirect harm which may
occur to defendants as a result of an injunction. Granting an injunction will merely maintain the status quo
existing prior to the enactment of the statutes.
* * *
"The purpose of Senate Bill 8 [§ 16‑1‑20.2]
as evidenced by its preamble,
is to provide for a prayer that may be given in public schools. Senator Holmes
testified that his purpose in sponsoring § 16‑1‑20.1 was to return
voluntary prayer to the public schools.
He intended to provide children the opportunity of sharing in their
spiritual heritage of Alabama and of this country. See Alabama Senate Journal 921 (1981). The Fifth Circuit has explained that 'prayer is a primary
religious activity in itself....' Karen
B. v. Treen, 653 F.2d 897, 901 (5th Cir.1981).
The state may not employ a religious means in its public schools. Abington School District v. Schempp, [374
U.S. 203, 224, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844] (1963). Since these statutes do not reflect a clearly
secular purpose, no consideration of the remaining two‑parts of the Lemon
test is necessary.
"The enactment of Senate Bill 8 [§ 16‑1‑20.2]
and § 16‑1‑20.1 is an effort on the part of the State of Alabama to
encourage a religious activity. Even
though these statutes are permissive in form, it is nevertheless state
involvement respecting an establishment of religion. Engel v. Vitale, [370 U.S.
421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601] (1962). Thus, binding precedent which this Court is under a duty to
follow indicates the substantial likelihood plaintiffs will prevail on the
merits." 544 F.Supp., at 730‑732.
*44 In
November 1982, the District Court held a 4‑day trial on the merits. The evidence related primarily to the 1981‑1982
academic year‑‑the year after the enactment of § 16‑1‑20.1
and prior to the enactment of § 16‑1‑20.2. The District Court found
that during that academic year each of the minor plaintiffs' teachers had led
classes in prayer activities, even after being informed of appellees'
objections to these activities. [FN23]
FN23. The District Court wrote:
"Defendant Boyd, as early as September 16,
1981, led her class at E.R. Dickson in singing the following phrase:
" 'God is great, God is good,
" 'Let us thank him for our food,
" 'bow our heads we all are fed,
" 'Give us Lord our daily bread.
" 'Amen!'
"The recitation of this phrase continued on a
daily basis throughout the 1981‑82 school year.
* * *
"Defendant Pixie Alexander has led her class
at Craighead in reciting the following phrase:
" 'God is great, God is good, " 'Let us thank him for our food.'
"Further, defendant Pixie Alexander had her
class recite the following, which is known as the Lord's Prayer:
" 'Our Father, which are in heaven, hallowed
be Thy name. Thy kingdom come. Thy will be done on earth as it is in
heaven. Give us this day our daily
bread and forgive us our debts as we forgive our debtors. And lead us not into temptation but deliver
us from evil for thine is the kingdom and the power and the glory forever. Amen.'
"The recitation of these phrases continued on
a daily basis throughout the 1981‑82 school year.
* * *
"Ms. Green admitted that she frequently leads
her class in singing the following song:
" 'For health and strength and daily food, we
praise Thy name, Oh Lord.'
"This activity continued throughout the
school year, despite the fact that Ms. Green had knowledge that plaintiff did
not want his child exposed to the above‑mentioned song." Jaffree v. Board of School Comm'rs of Mobile
County, 554 F.Supp., at 1107‑1108.
In its
lengthy conclusions of law, the District Court reviewed a number of opinions of
this Court interpreting the *45 Establishment Clause of the First Amendment,
and then embarked on a fresh examination of the question whether the First
Amendment **2484 imposes any barrier to the establishment of an official
religion by the State of Alabama. After
reviewing at length what it perceived to be newly discovered historical
evidence, the District Court concluded that "the establishment clause of
the first amendment to the United States Constitution does not prohibit the
state from establishing a religion." [FN24] In a separate opinion, the District Court dismissed appellees'
challenge to the three Alabama statutes because of a failure to state any claim
for which relief could be granted. The
court's dismissal of this challenge was also based on its conclusion that the
Establishment Clause did not bar the States from establishing a religion. [FN25]
FN24. Id., at 1128.
FN25. Jaffree v. James, 554 F.Supp. 1130, 1132 (SD
Ala.1983). The District Court's opinion
was announced on January 14, 1983. On
February 11, 1983, Justice POWELL, in his capacity as Circuit Justice for the
Eleventh Circuit, entered a stay which in effect prevented the District Court
from dissolving the preliminary injunction that had been entered in August
1982. Justice POWELL accurately
summarized the prior proceedings:
"The situation, quite briefly, is as
follows: Beginning in the fall of 1981, teachers in the minor applicants'
schools conducted prayers in their regular classes, including group recitations
of the Lord's Prayer. At the time, an
Alabama statute provided for a one‑minute period of silence 'for
meditation or voluntary prayer' at the commencement of each day's classes in
the public elementary schools. Ala.Code
§ 16‑1‑20.1 (Supp.1982). In
1982, Alabama enacted a statute permitting public school teachers to lead their
classes in prayer. 1982 Ala.Acts 735.
"Applicants, objecting to prayer in the
public schools, filed suit to enjoin the activities. They later amended their complaint to challenge the applicable
state statutes. After a hearing, the
District Court granted a preliminary injunction. Jaffree v. James, 544 F.Supp. 727 (1982). It recognized that it was bound by the
decisions of this Court, id., at 731, and that under those decisions it was
'obligated to enjoin the enforcement' of the statutes, id., at 733.
"In its subsequent decision on the merits,
however, the District Court reached a different conclusion. Jaffree v. Board of School Commissioners of
Mobile County, 554 F.Supp. 1104 (1983).
It again recognized that the prayers at issue, given in public school
classes and led by teachers, were violative of the Establishment Clause of the
First Amendment as that Clause had been construed by this Court. The District Court nevertheless ruled 'that
the United States Supreme Court has
erred.' Id., at 1128. It therefore dismissed the complaint and
dissolved the injunction.
"There can be little doubt that the District
Court was correct in finding that conducting prayers as part of a school
program is unconstitutional under this Court's decisions. In Engel v. Vitale, 370 U.S. 421, 82 S.Ct.
1261, 8 L.Ed.2d 601 (1962), the Court held that the Establishment Clause of the
First Amendment, made applicable to the States by the Fourteenth Amendment,
prohibits a State from authorizing prayer in the public schools. The following Term, in Murray v. Curlett,
decided with Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560,
10 L.Ed.2d 844 (1963), the Court explicitly invalidated a school district's
rule providing for the reading of the Lord's Prayer as part of a school's
opening exercises, despite the fact that participation in those exercises was
voluntary.
"Unless and until this Court reconsiders the
foregoing decisions, they appear to control this case. In my view, the District Court was obligated
to follow them." Jaffree v. Board
of School Comm'rs of Mobile County, 459 U.S. 1314, 1315‑1316, 103 S.Ct.
842, 842‑843, 74 L.Ed.2d 924 (1983).
*46 The
Court of Appeals consolidated the two cases;
not surprisingly, it reversed.
The Court of Appeals noted that this Court had considered and had
rejected the historical arguments *47 that the District Court found persuasive,
and that the District Court had misapplied the doctrine of stare decisis.
[FN26] The Court of Appeals then held
**2485 that the teachers' religious activities violated the Establishment
Clause of the First Amendment. [FN27]
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." [FN28] The Court of Appeals then quoted with
approval the District Court's finding that § 16‑1‑20.1, and § 16‑1‑20.2,
were efforts " 'to encourage a religious activity. Even though these statutes are permissive in
form, it is nevertheless state involvement respecting an establishment of
religion.' " [FN29] Thus, the
Court of Appeals concluded that both statutes were "specifically the type
which the Supreme Court addressed in Engel [v. Vitale, 370 U.S. 421, 82 S.Ct.
1261, 8 L.Ed.2d 601 (1962) ]." [FN30]
FN26. The 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 § 183 (1965).
"Federal district courts and circuit courts
are bound to adhere to the controlling decisions of the Supreme Court. Hutto v. Davis, [454 U.S. 370, 375, 102
S.Ct. 703, 706, 70 L.Ed.2d 556] (1982)....
Justice Rehnquist
emphasized the importance of precedent when he observed that 'unless we wish
anarchy to prevail within the federal judicial system, a precedent of this
Court must be followed by the lower federal courts no matter how misguided the
judges of those courts may think it to be.'
Davis, [454 U.S. at 375, 102 S.Ct., at 706]. See Also, Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
[460 U.S. 533, 535, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260] (1983) (the Supreme
Court, in a per curiam decision, recently stated: 'Needless to say, only this Court may overrule one of its
precedents')." 705 F.2d, at 1532.
FN27. Id., at 1533‑1534. This Court has denied a petition for a writ
of certiorari that presented the question whether the Establishment Clause
prohibited the teachers' religious prayer activities. Board of School Comm'rs of Mobile County v. Jaffree, 466 U.S.
926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984).
FN28. 705 F.2d, at 1535.
FN29. Ibid.
FN30. Ibid.
After noting that the invalidity of § 16‑1‑20.2 was aggravated by "the existence of a
government composed prayer," and that the proponents of the legislation
admitted that that section "amounts to the establishment of a state
religion," the court added this comment on § 16‑1‑20.1:
"The objective of the meditation or prayer
statute (Ala.Code § 16‑1‑ 20.1) was also the advancement of
religion. This fact was recognized by
the district court at the hearing for preliminary relief where it was
established that the intent of the statute was to return prayer to the public
schools. James, 544 F.Supp. at
731. The existence of this fact and the
inclusion of prayer obviously involves the state in religious activities. Beck v. McElrath, 548 F.Supp. 1161 (MD
Tenn.1982). This demonstrates a lack of
secular legislative purpose on the part of the Alabama Legislature. Additionally, the statute has the primary
effect of advancing religion. We do not
imply that simple meditation or silence is barred from the public schools; we hold that the state cannot participate in
the advancement of religious activities through any guise, including teacher‑led
meditation. It is not the activity
itself that concerns us; it is the purpose of the activity that we shall
scrutinize. Thus, the existence of
these elements require that we also hold section 16‑1‑20.1 in
violation of the establishment clause."
Id., at 1535‑1536.
*48 A
suggestion for rehearing en banc was denied over the dissent of four judges who
expressed the opinion that the full court should reconsider the panel decision
insofar as it held § 16‑1‑20.1 unconstitutional. [FN31] When this Court noted probable jurisdiction,
it limited argument to the question that those four judges thought worthy of
reconsideration. The judgment of the
Court of Appeals with respect to the other issues presented by the appeals was
affirmed. Wallace v. Jaffree, 466 U.S.
924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).
FN31. 713 F.2d 614 (CA11 1983) (per curiam ).
II
[1] Our
unanimous affirmance of the Court of Appeals' judgment concerning § 16‑1‑20.2 makes it unnecessary
to comment at length on the District Court's remarkable conclusion that the
Federal Constitution imposes no obstacle to Alabama's establishment of a state
religion. Before analyzing the precise
issue that is presented to us, it is nevertheless appropriate to recall how
firmly embedded in our constitutional jurisprudence is the proposition that the
several States have no greater power to restrain the individual freedoms *49
protected by the First Amendment than does the Congress of the United States.
[2] As is
plain from its text, the First Amendment was adopted to curtail the power of
Congress to interfere with the individual's freedom to believe, to worship, and
to express himself in accordance with the dictates of his own conscience.
[FN32] Until the Fourteenth Amendment
was added to the Constitution, the First Amendment's **2486 restraints on the
exercise of federal power simply did not apply to the States. [FN33] But when the Constitution was amended to
prohibit any State from depriving any person of liberty without due process of
law, that Amendment imposed the same substantive limitations on the States'
power to legislate that the First Amendment had always imposed on the Congress'
power. This Court has confirmed and
endorsed this elementary proposition of law time and time again. [FN34]
FN32. The First Amendment provides:
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances."
FN33. See Permoli v. Municipality No. 1 of the
City of New Orleans, 3 How. 589, 609, 11 L.Ed. 739 (1845).
FN34. See, e.g., Wooley v. Maynard, 430 U.S. 705,
714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977) (right to refuse endorsement of
an offensive state motto); Terminiello
v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894,895, 93 L.Ed. 1131 (1949) (right to
free speech); West Virginia Board of
Education v. Barnette, 319 U.S. 624, 637‑638, 63 S.Ct. 1178, 1185, 87
L.Ed. 1628 (1943) (right to refuse to participate in a ceremony that offends
one's conscience); Cantwell v.
Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940) (right
to proselytize one's religious faith);
Hague v. CIO, 307 U.S. 496, 519, 59 S.Ct. 954, 965, 83 L.Ed. 1423 (1939)
(opinion of Stone, J.) (right to assemble peaceably); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625,
628, 75 L.Ed. 1357 (1931) (right to publish an unpopular newspaper); Whitney v. California, 274 U.S. 357, 373, 47
S.Ct. 641, 647, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) (right to
advocate the cause of Communism);
Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138
(1925) (Holmes, J., dissenting) (right to express an unpopular opinion); cf. Abington School District v. Schempp, 374
U.S. 203, 215, n. 7, 83 S.Ct. 1560, 1567, n. 7, 10 L.Ed.2d 844 (1963), where
the Court approvingly quoted Board of Education v. Minor, 23 Ohio St. 211, 253
(1872), which stated:
"The great bulk of human affairs and human
interests is left by any free
government to individual enterprise and individual action. Religion is eminently one of these
interests, lying outside the true and legitimate province of government."
*50
Writing for a unanimous Court in Cantwell v. Connecticut, 310 U.S. 296, 303, 60
S.Ct. 900, 903, 84 L.Ed. 1213 (1940), Justice Roberts explained:
"... We hold that the statute, as construed
and applied to the appellants, deprives them of their liberty without due
process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied
in that Amendment embraces the liberties guaranteed by the First
Amendment. The First Amendment declares
that Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
The Fourteenth Amendment has rendered the legislatures of the states as
incompetent as Congress to enact such laws.
The constitutional inhibition of legislation on the subject of religion
has a double aspect. On the one hand,
it forestalls compulsion by law of the acceptance of any creed or the practice
of any form of worship. Freedom of
conscience and freedom to adhere to such religious organization or form of worship
as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free
exercise of the chosen form of religion."
Cantwell,
of course, is but one case in which the Court has identified the individual's
freedom of conscience as the central liberty that unifies the various Clauses
in the First Amendment. [FN35]
Enlarging on this theme, THE CHIEF JUSTICE recently wrote:
FN35. For example, in Prince v. Massachusetts, 321
U.S. 158, 164, 64 S.Ct. 438, 441, 88 L.Ed. 645 (1944), the Court wrote:
"If by this position appellant seeks for
freedom of conscience a broader protection than for freedom of the mind, it may
be doubted that any of the great liberties insured by the First Article can be
given higher place than the others. All
have preferred position in our basic scheme.
Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60
S.Ct. 900, 84 L.Ed. 1213. All are
interwoven there together. Differences
there are, in them and in the modes appropriate for their exercise. But they have unity in the charter's prime
place because they have unity in their human sources and functionings."
See also Widmar v. Vincent, 454 U.S. 263, 269, 102
S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) (stating that religious worship and
discussion "are forms of speech and association protected by the First
Amendment").
*51 "We begin with the proposition that the
right of freedom of thought protected by the First Amendment against state
**2487 action includes both the right to speak freely and the right to refrain
from speaking at all. See Board of
Education v. Barnette, 319 U.S. 624, 633‑634 [63 S.Ct. 1178, 1182‑
1183, 87 L.Ed. 1628] (1943); id., at
645 [63 S.Ct., at 1188] (Murphy, J., concurring). A system which secures the right to proselytize religious,
political, and ideological causes must also guarantee the concomitant right to
decline to foster such concepts. The
right to speak and the right to refrain from speaking are complementary
components of the broader concept of 'individual freedom of mind.' Id., at 637 [63 S.Ct., at 1185].
* * *
"The Court in Barnette, supra, was faced with
a state statute which required public school students to participate in daily
public ceremonies by honoring the flag both with words and traditional salute
gestures. In overruling its prior
decision in Minersville District v. Gobitis, 310 U.S. 586 [60 S.Ct. 1010, 84
L.Ed. 1375] (1940), the Court held that 'a ceremony so touching matters of
opinion and political attitude may [not] be imposed upon the individual by
official authority under powers committed to any political organization under
our Constitution.' 319 U.S., at 636 [63
S.Ct., at 1184]. Compelling the
affirmative act of a flag salute involved a more serious infringement upon
personal liberties than the passive act of carrying the state motto on a
license plate, but the difference is essentially one of degree. Here, as in
Barnette, we are faced with a state measure which forces an individual, as part
of his daily life‑‑indeed constantly while his automobile is in
public view‑‑to be an *52 instrument for fostering public adherence
to an ideological point of view he finds unacceptable. In doing so, the State 'invades the sphere
of intellect and spirit which it is the purpose of the First Amendment to our
Constitution to reserve from all official control.' Id., at 642 [63 S.Ct., at
1187]." Wooley v. Maynard, 430
U.S. 705, 714‑ 715, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977).
[3][4]
Just as the right to speak and the right to refrain from speaking are
complementary components of a broader concept of individual freedom of mind, so
also the individual's freedom to choose his own creed is the counterpart of his
right to refrain from accepting the creed established by the majority. At one time it was thought that this right
merely proscribed the preference of one Christian sect over another, but would
not require equal respect for the conscience of the infidel, the atheist, or
the adherent of a non‑Christian faith such as Islam or Judaism.
[FN36] But when the underlying
principle has been examined in the crucible of litigation, the *53 Court has
unambiguously concluded that the individual freedom of conscience protected by
the First Amendment embraces the right to select any religious faith or **2488
none at all. [FN37] This conclusion
derives support not only from the interest in respecting the individual's
freedom of conscience, but also from the conviction that religious beliefs
worthy of respect are the product of free and voluntary choice by the faithful,
[FN38] *54 and from recognition of the fact that the political interest in
forestalling intolerance extends beyond intolerance among Christian sects‑‑or
even intolerance among "religions"‑‑to encompass
intolerance of the disbeliever and the uncertain. [FN39] *55 As Justice **2489 Jackson eloquently
stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63
S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943):
FN36. Thus Joseph Story wrote:
"Probably at the time of the adoption of the
constitution, and of the amendment to it, now under consideration [First
Amendment], the general, if not the universal sentiment in America was, that
christianity ought to receive encouragement from the state, so far as was not
incompatible with the private rights of conscience, and the freedom of
religious worship. An attempt to level
all religions, and to make it a matter of state policy to hold all in utter
indifference, would have created universal disapprobation, if not universal
indignation." 2 J. Story, Commentaries
on the Constitution of the United States § 1874, p. 593 (1851) (footnote omitted).
In the same volume, Story continued:
"The real object of the amendment was, not to
countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by
prostrating christianity; but to exclude all rivalry among christian
sects, and to prevent any national ecclesiastical establishment, which should
give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious
persecution, (the vice and pest of former ages,) and of the subversion of the
rights of conscience in matters of religion, which had been trampled upon
almost from the days of the Apostles to the present age...." Id., § 1877, at 594 (emphasis supplied).
FN37. Thus, in Everson v. Board of Education, 330
U.S., at 15, 67 S.Ct., at 511, the Court stated:
"The 'establishment of religion' clause of
the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another."
Id., at 18, 67 S.Ct., at 513 (the First Amendment
"requires the state to be a neutral in its relations with groups of
religious believers and non‑ believers"); Abington School District v. Schempp, 374 U.S., at 216, 83 S.Ct.,
at 1568 ("this Court has rejected unequivocally the contention that the
Establishment Clause forbids only governmental preference of one religion over
another"); id., at 226, 83 S.Ct.,
at 1573 ("The place of religion in our society is an exalted one, achieved
through a long tradition of reliance
on the home, the church and the inviolable citadel of the individual heart and
mind. We have come to recognize through
bitter experience that it is not within the power of the government to invade
that citadel, whether its purpose or effect be to aid or oppose, to advance or
retard. In the relationship between man
and religion, the State is firmly committed to a position of neutrality"); Torcaso v. Watkins, 367 U.S. 488, 495, 81
S.Ct. 1680, 1683‑84, 6 L.Ed.2d 982 (1961) ("We repeat and again
reaffirm that neither a State nor the Federal Government can constitutionally
force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or
impose requirements which aid all religions as against non‑believers, and
neither can aid those religions based on a belief in the existence of God as
against those religions founded on different beliefs").
FN38. In his "Memorial and Remonstrance
Against Religious Assessments, 1785," James Madison wrote, in part:
"1. Because we hold it for a fundamental and
undeniable truth, 'that Religion or the duty which we owe to our Creator and
the [Manner of discharging it, can be directed only by reason and] conviction,
not by force or violence.' The Religion
then of every man must be left to the conviction and conscience of every
man; and it is the right of every man to exercise it as these may
dictate. This right is in its nature an
unalienable right. It is
unalienable; because the opinions of
men, depending only on the evidence contemplated by their own minds, cannot
follow the dictates of other men: It is
unalienable also; because what is here
a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage,
and such only, as he believes to be acceptable to him.... We maintain therefore that in matters of
Religion, no man's right is abridged by the institution of Civil Society, and
that Religion is wholly exempt from its cognizance.
* * *
"3. Because, it is proper to take alarm at
the first experiment on our liberties.
We hold this prudent jealousy to be the first duty of citizens, and one
of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till
usurped power had strengthened itself by exercise, and entangled the question
in precedents. They saw all the
consequences in the principle, and they avoided the consequences by denying the
principle. We revere this lesson too
much, soon to forget it. Who does not
see that the same authority which can establish Christianity, in exclusion of
all other Religions, may establish with the same ease any particular sect of
Christians, in exclusion of all other Sects?" The Complete Madison 299‑301 (S. Padover ed. 1953). See also Engel v. Vitale, 370 U.S. 421, 435,
82 S.Ct. 1261, 1269, 8 L.Ed.2d 601 (1962) ("It is neither sacrilegious nor
antireligious to say that each separate government in this country should stay
out of the business of writing or sanctioning official prayers and leave that
purely religious function to the people themselves and to those the people
choose to look for religious guidance").
FN39. As the Barnette opinion explained, it is the
teaching of history, rather than any appraisal of the quality of a State's
motive, that supports this duty to respect basic freedoms:
"Struggles to coerce uniformity of sentiment
in support of some end thought essential to their time and country have been
waged by many good as well as by evil men.
Nationalism is a relatively recent phenomenon but at other times and
places the ends havebeen racial or territorial security, support of a dynasty
or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those
bent on its accomplishment must resort to an ever‑increasing
severity. As governmental pressure
toward unity becomes greater, so strife becomes more bitter as to whose unity
it shall be. Probably no deeper
division of our people could proceed from any provocation than from finding it
necessary to choose what doctrine and whose program public educational
officials shall compel youth to unite
in embracing. Ultimate futility of such
attempts to compel coherence is the lesson of every such effort from the Roman
drive to stamp out Christianity as a disturber of its pagan unity, the
Inquisition, as a means to religious and dynastic unity, the Siberian exiles as
a means to Russian unity, down to the fast failing efforts of our present
totalitarian enemies. Those who begin
coercive elimination of dissent soon find themselves exterminating
dissenters. Compulsory unification of
opinion achieves only the unanimity of the graveyard." 319 U.S., at 640‑641, 63 S.Ct., at
1186‑1187.
See also Engel v. Vitale, 370 U.S., at 431, 82
S.Ct., at 1267 ("a union of government and religion tends to destroy
government and to degrade religion").
"If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith
therein."
The State
of Alabama, no less than the Congress of the United States, must respect that
basic truth.
III
[5] When
the Court has been called upon to construe the breadth of the Establishment
Clause, it has examined the criteria developed over a period of many
years. Thus, in Lemon v. Kurtzman, 403
U.S. 602, 612‑613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), we wrote:
"Every analysis in this area must begin with
consideration of the cumulative criteria developed by the Court over many
years. Three such tests may be gleaned
from our cases. First, the statute must
have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243
[88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968);
finally, the statute must not foster 'an excessive *56 government
entanglement with religion.' Walz [v. Tax Comm'n, 397 U.S. 664, 674 [90 S.Ct.
1409, 1414, 25 L.Ed.2d 697] (1970) ]."
It is the
first of these three criteria that is most plainly implicated by this
case. As the District Court correctly
recognized, no consideration of the second or third criteria is necessary if a
statute does not have a clearly secular purpose. [FN40] For even though a statute that is motivated
in part by a religious purpose may satisfy the first criterion, see, e.g.,
Abington School District v. Schempp, 374 U.S. 203, 296‑303, 83 S.Ct.
1560, 1610‑1614, 10 L.Ed.2d 844 (1963) (BRENNAN, J., concurring), the
First Amendment requires that a statute must be invalidated if it is entirely
motivated by a purpose to advance religion. [FN41]
FN40. See n. 22, supra.
FN41. See Lynch v. Donnelly, 465 U.S. 668, 680,
104 S.Ct. 1355, 1362‑ 1363, 79 L.Ed.2d 604 (1984); id., at 690, 104 S.Ct., at 1368 (O'CONNOR,
J., concurring); id., at 697, 104
S.Ct., at 1371‑1372 (BRENNAN, J., joined by MARSHALL, BLACKMUN, and
STEVENS, JJ., dissenting); Mueller v.
Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983); Widmar
v. Vincent, 454 U.S., at 271, 102 S.Ct., at 275; Stone v. Graham, 449 U.S. 39, 40‑41, 101 S.Ct. 192, 193‑194,
66 L.Ed.2d 199 (1980) (per curiam );
Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714
(1977).
[6][7] In
applying the purpose test, it is appropriate to ask "whether government's
actual purpose is to endorse or disapprove of religion." [FN42] In this
case, the answer to that question is dispositive. For the record not only provides us with an unambiguous
affirmative answer, but it also reveals that the enactment of § 16‑1‑20.1
was not motivated **2490 by any clearly secular purpose‑‑indeed,
the statute had no secular purpose.
FN42. Lynch v. Donnelly, 465 U.S., at 690, 104
S.Ct., at 1368 (O'CONNOR, J.,
concurring) ("The purpose prong of the Lemon test asks whether
government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective
of government's actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval.
An affirmative answer to either question should render the challenged
practice invalid").
IV
The
sponsor of the bill that became § 16‑1‑20.1, Senator Donald Holmes,
inserted into the legislative record‑‑apparently *57 without
dissent‑‑a statement indicating that the legislation was an
"effort to return voluntary prayer" to the public schools.
[FN43] Later Senator Holmes confirmed
this purpose before the District Court.
In response to the question whether he had any purpose for the
legislation other than returning voluntary prayer to public schools, he
stated: "No, I did not have no
other purpose in mind." [FN44] The
State did not present evidence of any secular purpose. [FN45]
FN43. The statement indicated, in pertinent part:
"Gentlemen, by passage of this bill by the
Alabama Legislature our children in this state will have the opportunity of
sharing in the spiritual heritage of this state and this country. The United States as well as the State of Alabama was founded by people who
believe in God. I believe this effort
to return voluntary prayer to our public schools for its return to us to the
original position of the writers of the Constitution, this local philosophies
and beliefs hundreds of Alabamians have urged my continuous support for
permitting school prayer. Since coming
to the Alabama Senate I have worked hard on this legislation to accomplish the
return of voluntary prayer in our public schools and return to the basic moral
fiber." App. 50 (emphasis added).
FN44. Id., at 52.
The District Court and the Court of Appeals agreed that the purpose of §
16‑1‑20.1 was "an effort on the part of the State of Alabama
to encourage a religious activity."
Jaffree v. James, 544 F.Supp., at 732;
705 F.2d, at 1535. The evidence
presented to the District Court elaborated on the express admission of the
Governor of Alabama (then Fob James) that the enactment of § 16‑1‑20.1
was intended to "clarify [the State's] intent to have prayer as part of
the daily classroom activity," compare Second Amended Complaint ¶ 32(d)
(App. 24‑25) with Governor's Answer to § 32(d) (App. 40); and that the "expressed legislative
purpose in enacting Section 16‑1‑20.1 (1981) was to 'return
voluntary prayer to public schools,' " compare Second Amended Complaint ¶¶
32(b) and (c) (App. 24) with Governor's Answer to ¶¶ 32(b) and (c) (App. 40).
FN45. Appellant Governor George C. Wallace now
argues that § 16‑1‑20.1 "is best understood as a permissible
accommodation of religion" and that viewed even in terms of the Lemon
test, the "statute conforms to acceptable constitutional
criteria." Brief for Appellant
Wallace 5; see also Brief for
Appellants Smith et al. 39 (§ 16‑1‑20.1 "accommodates the free
exercise of the religious beliefs and free exercise of speech and belief of
those affected"); id., at 47. These arguments seem to be based on the
theory that the free exercise of religion of some of the State's citizens was
burdened before the statute was enacted.
The United States, appearing as amicus curiae in support of the
appellants, candidly acknowledges that "it is unlikely that in most
contexts a strong Free Exercise claim could be made that time for personal
prayer must be set aside during the school day." Brief for United States as Amicus Curiae 10. There is no basis for the suggestion that §
16‑1‑20.1 "is a means for accommodating the religious and
meditative needs of students without in any way diminishing the school's own
neutrality or secular atmosphere." Id., at 11. In this case, it is undisputed that at the time of the enactment
of § 16‑1‑20.1 there was no governmental practice impeding students
from silently praying for one minute at the beginning of each schoolday;
thus, there was no need to "accommodate" or to exempt
individuals from any general governmental requirement because of the dictates
of our cases interpreting the Free Exercise Clause. See, e.g., Thomas v. Review Board, Indiana Employment Security
Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct.
1790, 10 L.Ed.2d 965 (1963); see also
Abington School District v. Schempp, 374 U.S., at 226, 83 S.Ct., at 1573
("While the Free Exercise Clause clearly prohibits the use of state action
to deny the rights of free exercise to anyone, it has never meant that a
majority could use the machinery of the State to practice its beliefs"). What was missing in the appellants' eyes at
the time of the enactment of § 16‑1‑20.1‑‑and therefore
what is precisely the aspect that makes the statute unconstitutional‑‑was
the State's endorsement and promotion of religion and a particular religious
practice.
*58 The
unrebutted evidence of legislative intent contained in the legislative record
and in the testimony of the sponsor of § 16‑1‑20.1 is confirmed by
a consideration of the relationship between this statute and the two other
measures that were considered in this case.
The District Court found that the 1981 statute and its 1982 sequel had a
common, nonsecular purpose. The wholly religious character of the later
enactment is plainly evident from its text.
When the differences between § 16‑1‑20.1 **2491 and its 1978
predecessor, § 16‑1‑20, are examined, it is equally clear that the
1981 statute has the same wholly religious character.
There are
only three textual differences between § 16‑1‑20.1 and § 16‑1‑
20: (1) the earlier statute applies
only to grades one through six, whereas § 16‑1‑20.1 applies to all
grades; (2) the earlier statute uses
the word "shall" whereas § 16‑1‑20.1 uses the word
"may"; (3) the earlier
statute refers *59 only to "meditation" whereas § 16‑1‑20.1
refers to "meditation or voluntary prayer." The first difference is of no relevance in this litigation
because the minor appellees were in kindergarten or second grade during the
1981‑1982 academic year. The
second difference would also have no impact on this litigation because the
mandatory language of § 16‑1‑20 continued to apply to grades one
through six. [FN46] Thus, the only
significant textual difference is the addition of the words "or voluntary
prayer."
FN46. See n. 1, supra.
The
legislative intent to return prayer to the public schools is, of course, quite
different from merely protecting every student's right to engage in voluntary
prayer during an appropriate moment of silence during the schoolday. The 1978
statute already protected that right, containing nothing that prevented any
student from engaging in voluntary prayer during a silent minute of meditation.
[FN47] Appellants have not identified
any secular purpose that was not fully served by § 16‑1‑20 before
the enactment of § 16‑1‑20.1. Thus, only two conclusions are
consistent with the text of § 16‑1‑20.1: (1) the statute was enacted to convey a message of state
endorsement and promotion of prayer; or
(2) the statute was enacted for no purpose.
No one suggests that the statute was nothing but a meaningless or
irrational act. [FN48]
FN47. Indeed, for some persons meditation itself may
be a form of prayer. B. Larson, Larson's Book of Cults 62‑65 (1982); C. Whittier, Silent Prayer and Meditation in
World Religions 1‑7 (Congressional Research Service 1982).
FN48. If the conclusion that the statute had no
purpose were tenable, it would remain true that no purpose is not a secular
purpose. But such a conclusion is
inconsistent with the common‑sense presumption that statutes are usually
enacted to change existing law.
Appellants do not even suggest that the State had no purpose in enacting
§ 16‑1‑20.1.
[8] We
must, therefore, conclude that the Alabama Legislature intended to change
existing law [FN49] and that it was motivated *60 by the same purpose that the
Governor's answer to the second amended complaint expressly admitted; that the
statement inserted in the legislative history revealed; and that Senator Holmes' testimony frankly
described. The legislature enacted § 16‑
1‑20.1, despite the existence of § 16‑1‑20 for the sole
purpose of expressing the State's endorsement of prayer activities for one
minute at the beginning of each schoolday.
The addition of "or voluntary prayer" indicates that the State
intended to characterize prayer as a favored practice. Such an endorsement is not consistent with
the established principle that the government must pursue a course of complete
neutrality toward religion. [FN50]
FN49. United States v. Champlin Refining Co., 341
U.S. 290, 297, 71 S.Ct. 715, 719, 95 L.Ed. 949 (1951) (a "statute cannot
be divorced from the circumstances existing at the time it was
passed"); id., at 298, 71 S.Ct.,
at 720 (refusing to attribute pointless purpose to Congress in the absence of
facts to the contrary); United States
v. National City Lines, Inc., 337 U.S. 78, 80‑81, 69 S.Ct. 955, 956‑957,
93 L.Ed.1226 (1949) (rejecting Government's argument that Congress had no
desire to change law when enacting legislation).
FN50. See, e.g., Stone v. Graham, 449 U.S., at 42,
101 S.Ct., at 194 (per curiam ); Committee for Public Education &
Religious Liberty v. Nyquist, 413 U.S. 756, 792‑793, 93 S.Ct. 2955, 2975‑2976,
37 L.Ed.2d 948 (1973) ("A proper respect for both the Free Exercise and
the Establishment Clauses compels the State to pursue a course of 'neutrality'
toward religion"); Epperson v.
Arkansas, 393 U.S. 97, 109, 89 S.Ct. 266, 273, 21 L.Ed.2d 228 (1968); Abington School District v. Schempp, 374
U.S., at 215‑222, 83 S.Ct., at 1567‑71; Engel v. Vitale, 370 U.S., at 430, 82 S.Ct., at 1266
("Neither the fact that the prayer may be denominationally neutral nor the
fact that its observance on the part of the students is voluntary can serve to
free it from the limitations of the Establishment Clause"); Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203, 211‑212, 68 S.Ct. 461, 465‑466
(1948); Everson v. Board of Education,
330 U.S., at 18, 67 S.Ct., at 513.
**2492 The
importance of that principle does not permit us to treat this as an
inconsequential case involving nothing more than a few words of symbolic speech
on behalf of the political majority. [FN51]
For whenever the State itself speaks on a religious *61 subject, one of
the questions that we must ask is "whether the government intends to
convey a message of endorsement or disapproval of religion." [FN52] The well‑supported concurrent findings
of the District Court and the Court of Appeals‑‑that § 16‑1‑20.1
was intended to convey a message of state approval of prayer activities in the
public schools‑‑ make it unnecessary, and indeed inappropriate, to
evaluate the practical significance of the addition of the words "or
voluntary prayer" to the statute.
Keeping in mind, as we must, "both the fundamental place held by
the Establishment Clause in our constitutional scheme and the myriad, subtle ways
in which Establishment Clause values can be eroded," [FN53] we conclude
that § 16‑1‑20.1 violates the First Amendment.
FN51. As this Court stated in Engel v. Vitale, 370
U.S., at 430, 82 S.Ct., at 1267:
"The Establishment Clause, unlike the Free
Exercise Clause, does not depend upon any showing of direct governmental
compulsion and is violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce nonobserving individuals
or not."
Moreover, this Court has noted that "[w]hen
the power, prestige and financial support of government is placed behind a
particular religious belief, the indirect coercive pressure upon religious
minorities to conform to the prevailing officially approved religion is
plain." Id., at 431, 82 S.Ct., at
1262. This comment has special force in
the public‑school context where attendance is mandatory. Justice Frankfurter acknowledged this
reality in Illinois ex rel. McCollum v. Board of Education, 333 U.S., at 227, 68 S.Ct., at 473 (concurring
opinion):
"That a child is offered an alternative may
reduce the constraint; it does not
eliminate the operation of influence by the school in matters sacred to
conscience and outside the school's domain.
The law of imitation operates, and non‑conformity is not an
outstanding characteristic of children."
See also Abington School District v. Schempp, 374
U.S., at 290, 83 S.Ct., at 1607 (BRENNAN, J., concurring); cf. Marsh v. Chambers, 463 U.S. 783, 792,
103 S.Ct. 3330, 3336, 77 L.Ed.2d 1019 (1983) (distinguishing between adults not
susceptible to "religious indoctrination" and children subject to
"peer pressure"). Further,
this Court has observed:
"That [Boards of Education] are educating the
young for citizenship is reason for scrupulous protection of Constitutional
freedoms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as
mere platitudes." West Virginia
Board of Education v. Barnette, 319 U.S., at 637, 63 S.Ct., at 1185.
FN52. Lynch v. Donnelly, 465 U.S., at 690‑691,
104 S.Ct., at 1368 (O'CONNOR, J., concurring) ("The purpose prong of the
Lemon test requires 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 or disapproval of religion").
FN53. Id., at 694, 104 S.Ct., at 1370.
The
judgment of the Court of Appeals is affirmed.
It is so
ordered.
*62
Justice POWELL, concurring.
I concur
in the Court's opinion and judgment that Ala.Code § 16‑1‑20.1 (Supp.1984) violates the Establishment
Clause of the First Amendment. My
concurrence is prompted by Alabama's persistence in attempting to institute
state‑sponsored prayer in the public schools by enacting three successive
statutes. [FN1] I agree fully with
Justice O'CONNOR's assertion that some moment‑of‑silence statutes
may be constitutional, [**2493 FN2] a suggestion set forth in the Court's
opinion as well. Ante, at 2491.
FN1. The three statutes are Ala.Code § 16‑1‑20
(Supp.1984) (moment of silent meditation);
Ala.Code § 16‑1‑20.1 (Supp.1984) (moment of silence for
meditation or prayer); and Ala.Code §
16‑1‑20.2 (Supp.1984) (teachers authorized to lead students in
vocal prayer). These statutes were enacted over a span of four
years. There is some question whether §
16‑1‑20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals'
holding that § 16‑1‑20.2 is invalid. Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178
(1984). Thus, our opinions today
address only the validity of § 16‑ 1‑20.1. See ante, at 2482.
FN2. Justice O'CONNOR is correct in stating that
moment‑of‑silence statutes cannot be treated in the same manner as
those providing for vocal prayer:
"A state‑sponsored moment of silence in
the public schools is different from state‑sponsored vocal prayer or
Bible reading. First, a moment of
silence is not inherently religious.
Silence, unlike prayer or Bible reading, need not be associated with a
religious exercise. Second, a pupil who
participates in a moment of silence need not compromise his or her
beliefs. During a moment of silence, a
student who objects to prayer is left to his or her own thoughts, and is not
compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of
silence statute does not stand or fall under the Establishment Clause according
to how the Court regards vocal prayer or Bible reading. Scholars
and at least one Member of this Court have recognized the distinction and
suggested that a moment of silence in public schools would be
constitutional. See Abington, [374
U.S.,] at 281 [, 83 S.Ct., at 1602] (BRENNAN, J., concurring) ('[T]he
observance of a moment of reverent silence at the opening of class' may serve
'the solely secular purposes of the devotional activities without jeopardizing
either the religious liberties of any members of the community or the proper
degree of separation between the spheres of religion and government'); L. Tribe, American Constitutional Law § 14‑6,
p. 829 (1978); P. Freund, 'The Legal
Issue,' in Religion and the Public Schools 23 (1965); Choper, 47 Minn.L.Rev., at 371;
Kauper, Prayer, Public Schools, and the Supreme Court, 61 Mich.L.Rev.
1031, 1041 (1963). As a general matter,
I agree. It is difficult to discern a serious threat to religious liberty from
a room of silent, thoughtful schoolchildren." Post, at 6‑7 (concurring in judgment).
*63 I
write separately to express additional views and to respond to criticism of the
three‑pronged Lemon test. [FN3]
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),
identifies standards that have proved useful in analyzing case after case both
in our decisions and in those of other courts.
It is the only coherent test a majority of the Court has ever
adopted. Only once since our decision
in Lemon, supra, have we addressed an Establishment Clause issue without resort
to its three‑pronged test. See
Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
[FN4] Lemon, supra, has not been
overruled or its test modified. Yet,
continued criticism of it could encourage other courts to feel free to decide
Establishment Clause cases on an ad hoc basis. [FN5]
FN3. Justice 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 Amendment." Post, at 2496‑ 2497. (concurring in judgment). Justice REHNQUIST would discard the Lemon
test entirely. Post, at 2520
(dissenting).
As I state in the text, the Lemon test has been
applied consistently in Establishment Clause cases since it was adopted in
1971. In a word, it has been the
law. Respect for stare decisis should
require us to follow Lemon. See Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 559, 105 S.Ct.
1005, 1022, 83 L.Ed.2d 1016 (1985) (POWELL, J., dissenting) ("The
stability of judicial decision, and with it respect for the authority of this
Court, are not served by the precipitous overruling of multiple precedents ...").
FN4. In Marsh v. Chambers, we held that the
Nebraska Legislature's practice of opening each day's session with a prayer by
a chaplain paid by the State did not violate the Establishment Clause of the
First Amendment. Our holding was based upon the historical acceptance of the
practice that had become "part of the fabric of our society." 463 U.S., at 792, 103 S.Ct., at 3336.
FN5. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct.
2105, 29 L.Ed.2d 745 (1972), was a carefully considered opinion of THE CHIEF
JUSTICE, in which he was joined by six other Justices. Lemon's three‑pronged test has been
repeatedly followed. In Committee for
Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955,
37 L.Ed.2d 948 (1973), for example, the Court applied the "now well‑defined
three‑part test" of Lemon.
413 U.S., at 772, 91 S.Ct., at 2965.
In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct.
1355, 79 L.Ed.2d 604 (1984), we said that the Court is not "confined to
any single test or criterion in this sensitive area." Id., at 679, 104 S.Ct., at 1362. The
decision in Lynch, like that in Marsh v. Chambers, was based primarily on the long historical
practice of including religious symbols in the celebration of Christmas. Nevertheless, the Court, without any
criticism of Lemon, applied its three‑pronged test to the facts of that
case. It focused on the "question
... whether there is a secular purpose for [the] display of the
creche." 465 U.S., at 681, 104 S.Ct.,
at 1363.
*64 The
first inquiry under Lemon is whether the challenged statute has a "secular
**2494 legislative purpose." Lemon
v. Kurtzman, supra, 403 U.S., at 612, 91 S.Ct., at 2111. As Justice O'CONNOR recognizes, this secular
purpose must be "sincere"; a
law will not pass constitutional muster if the secular purpose articulated by
the legislature is merely a "sham."
Post, at 2501 (concurring in judgment).
In Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)
(per curiam ), for example, we held that a statute requiring the posting of the
Ten Commandments in public schools violated the Establishment Clause, even
though the Kentucky Legislature asserted that its goal was educational. We have not interpreted the first prong of
Lemon, supra, however, as requiring that a statute have "exclusively
secular" objectives. [FN6] Lynch
v. Donnelly, 465 U.S. 668, 681, n. 6, 104 S.Ct. 1355, 1363, n. 6, 79 L.Ed.2d
604 (1984). If such a requirement
existed, much conduct and legislation approved by this Court in the past would
have been invalidated. See, e.g., Walz
v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (New York's
property tax exemption for religious organizations upheld); Everson v. Board of Education, 330 U.S. 1,
67 S.Ct. 504, 91 L.Ed. 711 (1947) (holding that a township may reimburse
parents for the cost of transporting their children to parochial schools).
FN6. The Court's opinion recognizes that "a
statute that is motivated in part by a religious purpose may satisfy the first
criterion." Ante, at 2490. The Court simply holds that "a statute
must be invalidated if it is entirely motivated by a purpose to advance
religion." Ibid. (emphasis added).
*65 The
record before us, however, makes clear that Alabama's purpose was solely
religious in character. Senator Donald
Holmes, the sponsor of the bill that became Alabama Code § 16‑1‑20.1
(Supp.1984), freely acknowledged that the purpose of this statute was "to
return voluntary prayer" to the public schools. See ante, at 2490, n. 43.
I agree with Justice O'CONNOR that a single legislator's statement,
particularly if made following enactment, is not necessarily sufficient to
establish purpose. See post, at 2501
(concurring in judgment). But, as noted
in the Court's opinion, the religious purpose of § 16‑1‑20.1 is
manifested in other evidence, including the sequence and history of the three
Alabama statutes. See ante, at 2491.
I also
consider it of critical importance that neither the District Court nor the
Court of Appeals found a secular purpose, while both agreed that the purpose
was to advance religion. In its first
opinion (enjoining the enforcement of § 16‑1‑20.1 pending a hearing
on the merits), the District Court said that the statute did "not reflect
a clearly secular purpose." Jaffree v. James, 544 F.Supp. 727, 732 (SD
Ala.1982). Instead, the District Court
found that the enactment of the statute was an "effort on the part of the
State of Alabama to encourage a religious activity." [FN7] Ibid.
The Court of Appeals likewise applied the Lemon test and found "a
lack of secular purpose on the part of the Alabama Legislature." *66 705 F.2d 1526, 1535 (CA11 1983). It held that the objective of § 16‑1‑20.1
was the "advancement of religion."
Ibid. When both courts below are
unable to discern an arguably valid secular purpose, this Court normally should
hesitate to find one.
FN7. In its subsequent decision on the merits, the
District Court held that prayer in the public schools‑‑even if led
by the teacher‑‑did not violate the Establishment Clause of the
First Amendment. The District Court recognized that its decision was
inconsistent with Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962), and other decisions of this Court.
The District Court nevertheless ruled that its decision was justified
because "the United States Supreme Court has erred...." Jaffree v. Board of School Comm'rs of Mobile
County, 554 F.Supp. 1104, 1128 (SD Ala.1983).
In my capacity as Circuit Justice, I stayed the
judgment of the District Court pending appeal to the Court of Appeals for the
Eleventh Circuit. Jaffree v. Board of School Comm'rs of Mobile County, 459 U.S.
1314, 103 S.Ct. 842, 74 L.Ed.2d 924 (1983) (in chambers).
I would
vote to uphold the Alabama statute if it also had a clear secular purpose. See Mueller v. Allen, 463 U.S. 388, 394‑395,
103 S.Ct. 3062, 3066‑ 3067, 77 L.Ed.2d **2495 721 (1983) (the Court is
"reluctan[t] to attribute unconstitutional motives to the States,
particularly when a plausible secular purpose for the State's program may be
discerned from the face of the statute").
Nothing in the record before us, however, identifies a clear secular
purpose, and the State also has failed to identify any nonreligious reason for
the statute's enactment. [FN8] Under
these circumstances, the Court is required by our precedents to hold that the
statute fails the first prong of the Lemon test and therefore violates the
Establishment Clause.
FN8. Instead, the State criticizes the Lemon test
and asserts that "the principal problems [with the test] stem from the
purpose prong." See Brief for
Appellant Wallace, p. 9 et seq.
Although
we do not reach the other two prongs of the Lemon test, I note that the
"effect" of a straightforward moment‑of‑silence statute
is unlikely to "advanc[e] or inhibi[t] religion." [FN9] See Board of Education v. Allen, 392 U.S.
236, 243, 89 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968). Nor would such a statute
"foster 'an excessive government entanglement with religion.' " Lemon *67
v. Kurtzman, 403 U.S., at 612‑613, 91 S.Ct., at 2111 quoting Walz
v. Tax Comm'r, 397 U.S., at 674, 90 S.Ct., at 1414.
FN9. If it were necessary to reach the
"effects" prong of Lemon, we would be concerned primarily with the
effect on the minds and feelings of immature pupils. As Justice O'CONNOR notes, during "a moment of silence, a
student who objects to prayer [even where prayer may be the purpose] is left to
his or her own thoughts, and is not compelled to listen to the prayers or
thoughts of others." Post, at 2499
(concurring in judgment). Given
the types of subjects youthful minds are primarily concerned with, it is
unlikely that many children would use a simple "moment of silence" as
a time for religious prayer. There are
too many other subjects on the mind of the typical child. Yet there also is the likelihood that some
children, raised in strongly religious families, properly would use the moment
to reflect on the religion of his or her choice.
I join the
opinion and judgment of the Court.
Justice
O'CONNOR, concurring in the judgment.
Nothing in
the United States Constitution as interpreted by this Court or in the laws of
the State of Alabama prohibits public school students from voluntarily praying
at any time before, during, or after the schoolday. Alabama has facilitated
voluntary silent prayers of students who are so inclined by enacting Ala.Code §
16‑1‑20 (Supp.1984), which provides a moment of silence in
appellees' schools each day. The
parties to these proceedings concede the validity of this enactment. At issue in these appeals is the
constitutional validity of an additional and subsequent Alabama statute,
Ala.Code § 16‑1‑20.1 (Supp.1984), which both the District Court and
the Court of Appeals concluded was enacted solely to officially encourage
prayer during the moment of silence. I
agree with the judgment of the Court that, in light of the findings of the
courts below and the history of its enactment, § 16‑1‑20.1 of the
Alabama Code violates the Establishment Clause of the First Amendment. In my view, there can be little doubt that
the purpose and likely effect of this subsequent enactment is to endorse and
sponsor voluntary prayer in the public schools. I write separately to identify the peculiar features of the
Alabama law that render it invalid, and to explain why moment of silence laws
in other States do not necessarily manifest the same infirmity. I also write to explain why neither history
nor the Free Exercise Clause of the First Amendment validates the Alabama law
struck down by the Court today.
I
The
Religion Clauses of the First Amendment, coupled with the Fourteenth
Amendment's guarantee of ordered liberty, preclude both the Nation and the
States from making any law respecting an establishment of religion or prohibiting
*68 the free exercise thereof. Cantwell
v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213
(1940). Although a distinct
jurisprudence has enveloped each of these **2496 Clauses, their common purpose
is to secure religious liberty. See
Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601
(1962). On these principles the Court
has been and remains unanimous.
As these
cases once again demonstrate, however, "it is far easier to agree on the
purpose that underlies the First Amendment's Establishment and Free Exercise
Clauses than to obtain agreement on the standards that should govern their
application." Walz v. Tax Comm'n,
397 U.S. 664, 694, 90 S.Ct. 1409, 1424, 25 L.Ed.2d 697 (1970) (opinion of
Harlan, J.). It once appeared that the
Court had developed a workable standard by which to identify impermissible
government establishments of religion.
See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745
(1971). Under the now familiar Lemon
test, statutes must have both a secular legislative purpose and a principal or
primary effect that neither advances nor inhibits religion, and in addition
they must not foster excessive government entanglement with religion. Id., at 612‑613, 91 S.Ct., at
2111. Despite its initial promise, the
Lemon test has proved problematic. The
required inquiry into "entanglement" has been modified and questioned,
see Mueller v. Allen, 463 U.S. 388, 403, n. 11, 103 S.Ct. 3062, 3071, n. 11, 77
L.Ed.2d 721 (1983), and in one case we have upheld state action against an
Establishment Clause challenge without applying the Lemon test at all. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct.
3330, 77 L.Ed.2d 1019 (1983). The
author of Lemon himself apparently questions the test's general
applicability. See Lynch v. Donnelly,
465 U.S. 668, 679, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984). Justice REHNQUIST today suggests that we
abandon Lemon entirely, and in the process limit the reach of the Establishment
Clause to state discrimination between sects and government designation of a
particular church as a "state" or "national" one. Post, at ‑‑‑‑.
Perhaps
because I am new to the struggle, I am not ready to abandon all aspects of the
Lemon test. I do believe, however, that
the standards announced in Lemon should be *69 reexamined and refined in order
to make them more useful in achieving the underlying purpose of the First
Amendment. We must strive to do more than erect a constitutional
"signpost," Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873,
37 L.Ed.2d 923 (1973), to be followed or ignored in a particular case as our
predilections may dictate. Instead, our goal should be "to frame a
principle for constitutional adjudication that is not only grounded in the
history and language of the first amendment, but one that is also capable of
consistent application to the relevant problems." Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47
Minn.L.Rev. 329, 332‑333 (1963) (footnotes omitted). Last Term, I proposed a refinement of the
Lemon test with this goal in mind.
Lynch v. Donnelly, 465 U.S., at 687‑689, 104 S.Ct., at 1366‑
1367 (concurring opinion).
The Lynch
concurrence suggested that the religious liberty protected by the Establishment
Clause is infringed when the government makes adherence to religion relevant to
a person's standing in the political community. Direct government action endorsing religion or a particular
religious practice is invalid under this approach because it "sends a
message to nonadherents that they are outsiders, not full members of the
political community, and an accompanying message to adherents that they are
insiders, favored members of the political community." Id., at 688, 104 S.Ct., at 1367. Under this view, Lemon's inquiry as to the
purpose and effect of a statute requires courts to examine whether government's
purpose is to endorse religion and whether the statute actually conveys a message
of endorsement.
The
endorsement test is useful because of the analytic content it gives to the
Lemon‑mandated inquiry into legislative purpose and effect. In this country, church and state must
necessarily operate within the same community. Because of this coexistence, it
is inevitable that the secular **2497 interests of government and the religious
interests of various sects and their adherents will frequently intersect,
conflict, and combine. A statute that
ostensibly promotes a secular interest *70 often has an incidental or even a
primary effect of helping or hindering a sectarian belief. Chaos would ensue if every such statute were
invalid under the Establishment Clause.
For example, the State could not criminalize murder for fear that it
would thereby promote the Biblical command against killing. The task for the Court is to sort out those
statutes and government practices whose purpose and effect go against the grain
of religious liberty protected by the First Amendment.
The
endorsement test does not preclude government from acknowledging religion or
from taking religion into account in making law and policy. It does preclude government from conveying
or attempting to convey a message that religion or a particular religious
belief is favored or preferred. Such an
endorsement infringes the religious liberty of the nonadherent, for
"[w]hen the power, prestige and financial support of government is placed
behind a particular religious belief, the indirect coercive pressure upon
religious minorities to conform to the prevailing officially approved religion
is plain." Engel v. Vitale, supra,
370 U.S., at 431, 82 S.Ct., at 1267. At
issue today is whether state moment of silence statutes in general, and
Alabama's moment of silence statute in particular, embody an impermissible
endorsement of prayer in public schools.
A
Twenty‑five
states permit or require public school teachers to have students observe a
moment of silence in their classrooms. [FN1]
A few statutes provide that the moment of silence *71 is for the purpose
of meditation alone. See Ariz.Rev.Stat.Ann. § 15‑522 (1984); Conn.Gen.Stat. § 10‑16a (1983);
R.I.Gen.Laws § 16‑12‑3.1 (1981).
The typical statute, however, calls for a moment of silence at the
beginning of the schoolday during which students may meditate, pray, or reflect
on the activities of the day. See,
e.g., Ark.Stat.Ann. § 80‑1607.1 (1980);
Ga.Code Ann. § 20‑2‑1050 (1982); Ill.Rev.Stat., ch. 122, ¶
771 (1983); Ind.Code § 20‑10.1‑7‑11
(1982); Kan.Stat.Ann. § 72‑5308a (1980);
Pa.Stat.Ann., Tit. 24, § 15‑1516.1 (Purdon Supp.1984‑1985). Federal trial courts have divided on the
constitutionality of these moment of silence laws. Compare Gaines v. Anderson, 421 F.Supp. 337 (Mass.1976)
(upholding statute), with May v. Cooperman, 572 F.Supp. 1561 (N.J.1983)
(striking down statute); Duffy v. Las
Cruces Public Schools, 557 F.Supp. 1013 (N.M.1983) (same); and Beck v. McElrath, 548 F.Supp. 1161
(M.D.Tenn.1982) (same). See also Walter
v. West Virginia Board of Education, 610 F.Supp. 1169 (S.D.W.Va.1985) (striking
down state constitutional amendment).
Relying on this Court's decisions disapproving vocal prayer and Bible
reading in the public schools, see Abington School District v. Schempp, 374
U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962), the courts that have struck down the moment of silence statutes **2498
generally conclude that their purpose and effect are to encourage prayer in
public schools.
FN1. See Ala.Code §§ 16‑1‑20, 16‑1‑20.1
(Supp.1984); Ariz.Rev.Stat.Ann. § 15‑522 (1984); Ark.Stat.Ann. § 80‑1607.1 (1980); Conn.Gen.Stat. § 10‑16a (1983); Del.Code Ann., Tit. 14, § 4101 (1981) (as
interpreted in Del.Op.Atty.Gen. 79‑1011 (1979)); Fla.Stat. § 233.062
(1983); Ga.Code Ann. § 20‑2‑1050
(1982); Ill.Rev.Stat., ch. 122, ¶ 771 (1983);
Ind.Code § 20‑10.1‑7‑11 (1982); Kan.Stat.Ann. § 72.5308a (1980); La.Rev.Stat.Ann. § 17:2115(A) (West
1982); Me.Rev.Stat.Ann., Tit. 20‑A,
§ 4805 (1983); Md.Educ.Code Ann. § 7‑104 (1985); Mass.Gen.Laws Ann., ch. 71, § 1A (West
1982); Mich.Comp.Laws Ann. § 380.1565
(Supp.1984‑1985); N.J.Stat.Ann. § 18A:36‑4 (West Supp.1984‑1985); N.M.Stat.Ann. § 22‑ 5‑4.1
(1981); N.Y.Educ.Law § 3029‑a
(McKinney 1981); N.D.Cent.Code § 15‑47‑30.1 (1981); Ohio Rev.Code Ann. § 3313.60.1 (1980); Pa.Stat.Ann., Tit. 24, § 15.1516.1 (Purdon
Supp.1984‑1985); R.I.Gen.Laws § 16‑12‑3.1 (1981); Tenn.Code Ann. § 49‑6‑1004
(1983); Va.Code § 22.1‑203
(1980); W.Va. Const., Art. III, § 15‑
a. For a useful comparison of the
provisions of many of these statutes,
see Note, Daily Moments of Silence in Public Schools: A Constitutional Analysis, 58 N.Y.U.L.Rev. 364, 407‑408
(1983).
The Engel
and Abington decisions are not dispositive on the constitutionality of moment
of silence laws. In those *72 cases,
public school teachers and students led their classes in devotional
exercises. In Engel, a New York statute
required teachers to lead their classes in a vocal prayer. The Court concluded that "it is no part
of the business of government to compose official prayers for any group of the
American people to recite as part of a religious program carried on by the
government." 370 U.S., at 425, 82
S.Ct., at 1264. In Abington, the Court
addressed Pennsylvania and Maryland statutes that authorized morning Bible
readings in public schools. The Court reviewed the purpose and effect of the
statutes, concluded that they required religious exercises, and therefore found
them to violate the Establishment Clause.
374 U.S., at 223‑224, 83 S.Ct., at 1572. Under all of these statutes, a student who did not share the
religious beliefs expressed in the course of the exercise was left with the
choice of participating, thereby compromising the nonadherent's beliefs, or
withdrawing, thereby calling attention to his or her nonconformity. The decisions acknowledged the coercion
implicit under the statutory schemes, see Engel, supra, at 431, 82 S.Ct., at
1267, but they expressly turned only on the fact that the government was
sponsoring a manifestly religious exercise.
A state‑sponsored
moment of silence in the public schools is different from state‑sponsored
vocal prayer or Bible reading. First, a
moment of silence is not inherently religious.
Silence, unlike prayer or Bible reading, need not be associated with a
religious exercise. Second, a pupil who
participates in a moment of silence need not compromise his or her
beliefs. During a moment of silence, a
student who objects to prayer is left to his or her own thoughts, and is not
compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of
silence statute does not stand or fall under the Establishment Clause according
to how the Court regards vocal prayer or Bible reading. Scholars and at least one Member of this
Court have recognized the distinction and suggested that a moment of silence in
public schools would be constitutional.
See Abington, supra, 374 U.S., at 281, 83 S.Ct., at 1602 (BRENNAN, J.,
concurring) ("[T]he observance of a moment *73 of reverent silence at the
opening of class" may serve "the solely secular purposes of the
devotional activities without jeopardizing either the religious liberties of
any members of the community or the proper degree of separation between the
spheres of religion and government");
L. Tribe, American Constitutional Law § 14‑6, p. 829 (1978); P. Freund, The Legal Issue, in Religion and
the Public Schools 23 (1965); Choper,
47 Minn.L.Rev., at 371; Kauper, Prayer, Public Schools, and the Supreme Court, 61
Mich.L.Rev. 1031, 1041 (1963). As a general matter, I agree. It is difficult to discern a serious threat
to religious liberty from a room of silent, thoughtful schoolchildren.
By
mandating a moment of silence, a State does not necessarily endorse any
activity that might occur during the period.
Cf. Widmar v. Vincent, 454 U.S. 263, 272, n. 11, 102 S.Ct. 269, 275, n.
11, 70 L.Ed.2d 440 (1981) ("[B]y creating a forum the [State] does not
thereby endorse or promote any of the particular ideas aired there"). Even if a statute specifies that a student
may choose to pray silently during a quiet moment, the State has not thereby
encouraged prayer over other specified alternatives. Nonetheless, it is also possible that a moment of silence
statute, either as drafted or as actually implemented, could effectively favor
the child who prays over the child who does not. For example, the message of endorsement would seem inescapable if
the teacher exhorts children to use the designated time to pray. Similarly, the face of the statute or its
legislative history may clearly establish that it seeks to encourage or promote
voluntary prayer over other alternatives, rather than merely **2499 provide a
quiet moment that may be dedicated to prayer by those so inclined. The crucial question is whether the State
has conveyed or attempted to convey the message that children should use the
moment of silence for prayer. [FN2] *74
This question cannot be answered in the abstract, but instead requires courts
to examine the history, language, and administration of a particular statute to
determine whether it operates as an endorsement of religion. Lynch, 465 U.S., at 694, 104 S.Ct., at 1370
(concurring opinion) ("Every government practice must be judged in its
unique circumstances to determine whether it constitutes an endorsement or
disapproval of religion").
FN2. Appellants argue that Zorach v. Clauson, 343
U.S. 306, 313‑314, 72 S.Ct. 679, 683‑684, 96 L.Ed. 954 (1952),
suggests there is no constitutional infirmity in a State's encouraging a child
to pray during a moment of silence. The
cited dicta from Zorach, however, is inapposite. There the Court stated that "[w]hen the state encourages
religious instruction ... by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions." Ibid. (emphasis added). When the State provides a moment of silence
during which prayer may occur at the election of the student, it can be said to
be adjusting the schedule of public events to sectarian needs. But when the State also encourages the
student to pray during a moment of silence, it converts an otherwise
inoffensive moment of silence into an effort by the majority to use the machinery of the State to encourage the
minority to participate in a religious exercise. See Abington School District v. Schempp, 374 U.S. 203, 226, 83
S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963).
Before
reviewing Alabama's moment of silence law to determine whether it endorses
prayer, some general observations on the proper scope of the inquiry are in
order. First, the inquiry into the
purpose of the legislature in enacting a moment of silence law should be
deferential and limited. See Everson v.
Board of Education, 330 U.S. 1, 6, 67 S.Ct. 504, 507, 91 L.Ed. 711 (1947)
(courts must exercise "the most extreme caution" in assessing whether
a state statute has a proper public purpose).
In determining whether the government intends a moment of silence
statute to convey a message of endorsement or disapproval of religion, a court
has no license to psychoanalyze the legislators. See McGowan v. Maryland, 366 U.S. 420, 466 (1961) (opinion of
Frankfurter, J.). If a legislature
expresses a plausible secular purpose for a moment of silence statute in either
the text or the legislative history, [FN3] or if the statute disclaims an
intent to encourage prayer over alternatives during a moment of silence, [FN4]
then courts should generally *75 defer to that stated intent. See Committee for Public Education &
Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37
L.Ed.2d 948 (1973); Tilton v. Richardson,
403 U.S. 672, 678‑679, 91 S.Ct. 2091, 2095‑2096, 29 L.Ed.2d 790
(1971). It is particularly troublesome
to denigrate an expressed secular purpose due to postenactment testimony by
particular legislators or by interested persons who witnessed the drafting of the
statute. Even if the text and official
history of a statute express no secular purpose, the statute should be held to
have an improper purpose only if it is beyond purview that endorsement of
religion or a religious belief "was and is the law's reason for
existence." Epperson v. Arkansas,
393 U.S. 97, 108, 89 S.Ct. 266, 272, 21 L.Ed.2d 228 (1968). Since there is arguably a secular
pedagogical value to a moment of silence in public schools, courts should find
an improper purpose behind such a statute only if the statute on its face, in
its official legislative history, or in its interpretation by a responsible
administrative agency suggests it has the primary purpose of endorsing prayer.
FN3. See, e.g., Tenn.Code Ann. § 49‑6‑1004
(1983).
FN4. See, e.g., W.Va. Const., Art. III, § 15‑a.
Justice
REHNQUIST suggests that this sort of deferential inquiry into legislative
purpose "means little," because "it only requires the
legislature to express any secular purpose and omit all sectarian
references." Post, at ‑‑‑‑. It is not a trivial matter, however, to
require that the legislature manifest a secular purpose and omit **2500 all
sectarian endorsements from its laws.
That requirement is precisely tailored to the Establishment Clause's
purpose of assuring that government not intentionally endorse religion or a
religious practice. It is of course
possible that a legislature will enunciate a sham secular purpose for a
statute. I have little doubt that our
courts are capable of distinguishing a sham secular purpose from a sincere one,
or that the Lemon inquiry into the effect of an enactment would help decide
those close cases where the validity of an expressed secular purpose is in
doubt. While the secular purpose requirement alone may rarely be determinative
in striking down a statute, it nevertheless serves an important function. It reminds government that *76 when it acts
it should do so without endorsing a particular religious belief or practice
that all citizens do not share. In this
sense the secular purpose requirement is squarely based in the text of the
Establishment Clause it helps to enforce.
Second,
the Lynch concurrence suggested that the effect of a moment of silence law is
not entirely a question of fact:
"[W]hether a government activity communicates
endorsement of religion is not a question of simple historical fact. Although evidentiary submissions may help
answer it, the question is, like the question whether racial or sex‑based
classifications communicate an invidious message, in large part a legal
question to be answered on the basis of judicial interpretation of social
facts." 465 U.S., at 693‑694,
104 S.Ct., at 1370.
The
relevant issue is whether an objective observer, acquainted with the text,
legislative history, and implementation of the statute, would perceive it as a
state endorsement of prayer in public schools.
Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
517‑518, n. 1, 104 S.Ct. 1949, 1969, n. 1, 80 L.Ed.2d 502 (1984)
(REHNQUIST, J., dissenting) (noting that questions whether fighting words are
"likely to provoke the average person to retaliation," Street v. New
York, 394 U.S. 576, 592, 89 S.Ct. 1355, 1365, 22 L.Ed.2d 572 (1969), and
whether allegedly obscene material appeals to "prurient interests,"
Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419
(1973), are mixed questions of law and fact that are properly subject to de
novo appellate review). A moment of
silence law that is clearly drafted and implemented so as to permit prayer,
meditation, and reflection within the prescribed period, without endorsing one
alternative over the others, should pass this test.
B
The
analysis above suggests that moment of silence laws in many States should pass
Establishment Clause scrutiny because they do not favor the child who chooses
to pray during a moment of silence over the child who chooses to meditate *77
or reflect. Alabama Code § 16‑1‑20.1
(Supp.1984) does not stand on the same footing. However deferentially one examines its text and legislative
history, however objectively one views the message attempted to be conveyed to
the public, the conclusion is unavoidable that the purpose of the statute is to
endorse prayer in public schools. I
accordingly agree with the Court of Appeals, 705 F.2d 1526, 1535 (1983), that
the Alabama statute has a purpose which is in violation of the Establishment
Clause, and cannot be upheld.
In finding
that the purpose of § 16‑1‑20.1 is to endorse voluntary prayer
during a moment of silence, the Court relies on testimony elicited from State
Senator Donald G. Holmes during a preliminary injunction hearing. Ante, at ‑‑‑‑. Senator Holmes testified that the sole
purpose of the statute was to return voluntary prayer to the public
schools. For the reasons expressed
above, I would give little, if any, weight to this sort of evidence of
legislative intent. Nevertheless, the
text of the statute in light of its official legislative history leaves little
doubt that the purpose of this statute corresponds to the purpose expressed by
Senator Holmes at the preliminary injunction hearing.
**2501
First, it is notable that Alabama already had a moment of silence statute
before it enacted § 16‑1‑20.1.
See Ala.Code § 16‑1‑20 (Supp.1984), quoted ante, at 2479, n.
1. Appellees do not challenge this
statute‑‑indeed, they concede its validity. See Brief for Appellees 2. The only significant addition made by § 16‑1‑20.1
is to specify expressly that voluntary prayer is one of the authorized
activities during a moment of silence.
Any doubt as to the legislative purpose of that addition is removed by
the official legislative history. The
sole purpose reflected in the official history is "to return voluntary
prayer to our public schools."
App. 50. Nor does anything in
the legislative history contradict an intent to encourage children to choose
prayer over other alternatives during the moment of silence. Given this legislative history, it is not
surprising that the State of Alabama conceded in the *78 courts below that the
purpose of the statute was to make prayer part of daily classroom activity, and
that both the District Court and the Court of Appeals concluded that the law's
purpose was to encourage religious activity.
See ante, at 2490, n. 44. In
light of the legislative history and the findings of the courts below, I agree
with the Court that the State intended § 16‑1‑20.1 to convey a
message that prayer was the endorsed activity during the state‑prescribed
moment of silence. [FN5] While it is therefore unnecessary also to determine
the effect of the statute, Lynch, 465
U.S., at 690, 104 S.Ct., at 1368 (concurring opinion), it also seems likely
that the message actually conveyed to objective observers by § 16‑1‑20.1
is approval of the child who selects prayer over other alternatives during a
moment of silence.
FN5. THE CHIEF JUSTICE suggests that one
consequence of the Court's emphasis on the difference between § 16‑1‑20.1
and its predecessor statute might be to render the Pledge of Allegiance
unconstitutional because Congress amended it in 1954 to add the words
"under God." Post, at ‑‑‑‑. I disagree.
In my view, the words "under God" in the Pledge, as codified
at 36 U.S.C. § 172, serve as an acknowledgment of religion with "the
legitimate secular purposes of solemnizing public occasions, [and] expressing
confidence in the future." Lynch
v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 1369, 79 L.Ed.2d 604 (1984)
(concurring opinion).
I also disagree with THE CHIEF JUSTICE's
suggestion that the Court's opinion invalidates any moment of silence statute
that includes the word "prayer."
Post, at ‑‑‑‑.
As noted supra, at ‑‑‑‑, "[e]ven if a
statute specifies that a student may choose to pray silently during a quiet
moment, the State has not thereby encouraged prayer over other specified alternatives."
Given this
evidence in the record, candor requires us to admit that this Alabama statute
was intended to convey a message of state encouragement and endorsement of
religion. In Walz v. Tax Comm'n, 397
U.S., at 669, 90 S.Ct., at 1411, the Court stated that the Religion Clauses of
the First Amendment are flexible enough to "permit religious exercise to
exist without sponsorship and without interference." Alabama Code § 16‑1‑20.1
(Supp.1984) does more than permit prayer to occur during a moment of silence
"without interference." It
*79 endorses the decision to pray during a moment of silence, and accordingly
sponsors a religious exercise. For that
reason, I concur in the judgment of the Court.
II
In his
dissenting opinion, post, at 2508, Justice REHNQUIST reviews the text and
history of the First Amendment Religion Clauses. His opinion suggests that a long line of this Court's decisions
are inconsistent with the intent of the drafters of the Bill of Rights. He urges the Court to correct the historical
inaccuracies in its past decisions by embracing a far more restricted
interpretation of the Establishment Clause, an interpretation that presumably
would permit vocal group prayer in public schools. See generally R. Cord, Separation of Church and State (1982).
The United
States, in an amicus brief, suggests a less sweeping modification of
Establishment Clause principles. In the
Federal Government's view, a state‑ sponsored moment of silence is merely
an "accommodation" of the desire of some public **2502 school
children to practice their religion by praying silently. Such an accommodation is contemplated by the
First Amendment's guarantee that the Government will not prohibit the free
exercise of religion. Because the moment of silence implicates free exercise
values, the United States suggests that the Lemon ‑mandated inquiry into
purpose and effect should be modified.
Brief for United States as Amicus Curiae 22.
There is
an element of truth and much helpful analysis in each of these
suggestions. Particularly when we are
interpreting the Constitution, "a page of history is worth a volume of
logic." New York Trust Co. v.
Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). Whatever the provision of the Constitution
that is at issue, I continue to believe that "fidelity to the notion of
constitutional ‑‑as opposed to purely judicial‑‑limits
on governmental action requires us to impose a heavy burden on those who claim
that practices accepted when [the provision] was *80 adopted are now
constitutionally impermissible."
Tennessee v. Garner, 471 U.S. 1, 26, 105 S.Ct. 1694, 1709, 85 L.Ed.2d 1
(1985) (dissenting opinion). The Court
properly looked to history in upholding legislative prayer, Marsh v. Chambers,
463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), property tax exemptions
for houses of worship, Walz v. Tax Comm'n, supra, and Sunday closing laws,
McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). As Justice Holmes once observed, "[i]f
a thing has been practised for two hundred years by common consent, it will
need a strong case for the Fourteenth Amendment to affect it." Jackman v. Rosenbaum Co., 260 U.S. 22, 31,
43 S.Ct. 9, 9‑10, 67 L.Ed. 107 (1922).
Justice
REHNQUIST does not assert, however, that the drafters of the First Amendment
expressed a preference for prayer in public schools, or that the practice of
prayer in public schools enjoyed uninterrupted government endorsement from the
time of enactment of the Bill of Rights to the present era. The simple truth is that free public
education was virtually nonexistent in the late 18th century. See Abington, 374 U.S., at 238, and n. 7, 83
S.Ct., at 1580 and n. 7 (BRENNAN, J., concurring). Since there then existed few government‑run schools, it is
unlikely that the persons who drafted the First Amendment, or the state
legislators who ratified it, anticipated the problems of interaction of church
and state in the public schools. Sky,
The Establishment Clause, the Congress, and the Schools: An Historical Perspective, 52 Va.L.Rev.
1395, 1403‑1404 (1966). Even at
the time of adoption of the Fourteenth Amendment, education in Southern States
was still primarily in private hands, and the movement toward free public
schools supported by general taxation had not taken hold. Brown v. Board of Education, 347 U.S. 483,
489‑490, 74 S.Ct. 686, 688‑689, 98 L.Ed. 873 (1954).
This
uncertainty as to the intent of the Framers of the Bill of Rights does not mean
we should ignore history for guidance on the role of religion in public
education. The Court has not done
so. See, e.g., Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203, 212, 68 S.Ct. 461, 466, 92 L.Ed.
649 (1948) (Frankfurter, *81 J., concurring).
When the intent of the Framers is unclear, I believe we must employ both
history and reason in our analysis. The
primary issue raised by Justice REHNQUIST's dissent is whether the historical
fact that our Presidents have long called for public prayers of Thanks should
be dispositive on the constitutionality of prayer in public schools. [FN6] I think not. At the very least, Presidential Proclamations are distinguishable
from school prayer in that they are received in a noncoercive setting and are
primarily directed at adults, who **2503 presumably are not readily susceptible
to unwilling religious indoctrination.
This Court's decisions have recognized a distinction when government‑sponsored
religious exercises are directed at impressionable children who are required to
attend school, for then government endorsement is much more likely to result in
coerced religious beliefs. See, e.g.,
Marsh v. Chambers, supra, at 792, 103 S.Ct., at 3336; Tilton v. Richardson, 403 U.S., at 686, 91 S.Ct., at 2099.
Although history provides a touchstone for constitutional problems, the
Establishment Clause concern for religious liberty is dispositive here.
FN6. Even assuming a taxpayer could establish
standing to challenge such a practice, see Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102
S.Ct. 752, 70 L.Ed.2d 700 (1982), these Presidential Proclamations would
probably withstand Establishment Clause scrutiny given their long history. See Marsh v. Chambers, 463 U.S. 783, 103
S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
The
element of truth in the United States' arguments, I believe, lies in the
suggestion that Establishment Clause analysis must comport with the mandate of
the Free Exercise Clause that government make no law prohibiting the free
exercise of religion. Our cases have
interpreted the Free Exercise Clause to compel the government to exempt persons
from some generally applicable government requirements so as to permit those
persons to freely exercise their religion.
See, e.g., Thomas v. Review Board of the Indiana Employment Security
Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Wisconsin v.
Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 *82 U.S. 398, 83
S.Ct. 1790, 10 L.Ed.2d 965 (1963). Even
where the Free Exercise Clause does not compel the government to grant an
exemption, the Court has suggested that the government in some circumstances
may voluntarily choose to exempt religious observers without violating the
Establishment Clause. See, e.g.,
Gillette v. United States, 401 U.S. 437, 453, 91 S.Ct. 828, 838, 28 L.Ed.2d 168
(1971); Braunfeld v. Brown, 366 U.S.
599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961).
The challenge posed by the United States' argument is how to define the
proper Establishment Clause limits on voluntary government efforts to
facilitate the free exercise of religion.
On the one hand, a rigid application of the Lemon test would invalidate
legislation exempting religious observers from generally applicable government
obligations. By definition, such
legislation has a religious purpose and effect in promoting the free exercise
of religion. On the other hand,
judicial deference to all legislation that purports to facilitate the free
exercise of religion would completely vitiate the Establishment Clause. Any
statute pertaining to religion can be viewed as an "accommodation" of
free exercise rights. Indeed, the
statute at issue in Lemon, which provided salary supplements, textbooks, and
instructional materials to Pennsylvania parochial schools, can be viewed as an
accommodation of the religious beliefs of parents who choose to send their
children to religious schools.
It is
obvious that either of the two Religion Clauses, "if expanded to a logical
extreme, would tend to clash with the other." Walz, 397 U.S., at 668‑669, 90 S.Ct., at 1411. The Court has long exacerbated the conflict
by calling for government "neutrality" toward religion. See, e.g., Committee for Public Education
& Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948
(1973); Board of Education v. Allen,
392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). It is difficult to square any notion of "complete
neutrality," ante, at ‑‑‑‑, with the mandate of
the Free Exercise Clause that government must sometimes exempt a religious
observer from an otherwise generally applicable obligation. A government that confers a benefit on
anexplicitly religious basis is not *83 neutral toward religion. See Welsh v. United States, 398 U.S. 333,
372, 90 S.Ct. 1792, 1813, 26 L.Ed.2d 308 (1970) (WHITE, J., dissenting).
The
solution to the conflict between the Religion Clauses lies not in "neutrality," but rather in
identifying workable limits to the government's license to promote the free
exercise of religion. The text of the
Free Exercise Clause speaks of laws that prohibit the free exercise of
religion. On its face, the Clause is
directed at government interference with free exercise. Given that concern, one can plausibly assert
that government pursues Free Exercise **2504 Clause values when it lifts a
government‑imposed burden on the free exercise of religion. If a statute falls within this category,
then the standard Establishment Clause test should be modified accordingly. It is disingenuous to look for a purely
secular purpose when the manifest objective of a statute is to facilitate the
free exercise of religion by lifting a government‑imposed burden. Instead, the Court should simply acknowledge
that the religious purpose of such a statute is legitimated by the Free
Exercise Clause. I would also go
further. In assessing the effect of
such a statute‑‑that is, in determining whether the statute conveys
the message of endorsement of religion or a particular religious belief‑‑courts
should assume that the "objective observer," supra, at ‑‑‑‑,
is acquainted with the Free Exercise Clause and the values it promotes. Thus individual perceptions, or resentment
that a religious observer is exempted from a particular government requirement,
would be entitled to little weight if the Free Exercise Clause strongly
supported the exemption.
While this
"accommodation" analysis would help reconcile our Free Exercise and
Establishment Clause standards, it would not save Alabama's moment of silence
law. If we assume that the religious
activity that Alabama seeks to protect is silent prayer, then it is difficult
to discern any state‑imposed burden on that activity that is lifted by
Alabama Code § 16‑1‑20.1 (Supp.1984). No law prevents a student who is so inclined from praying
silently in public schools. *84
Moreover, state law already provided a moment of silence to these appellees
irrespective of § 16‑1‑20.1.
See Ala.Code § 16‑1‑20 (Supp.1984). Of course, the State might argue that § 16‑1‑20.1
protects not silent prayer, but rather group silent prayer under state
sponsorship. Phrased in these terms,
the burden lifted by the statute is not one imposed by the State of Alabama,
but by the Establishment Clause as interpreted in Engel and Abington. In my view, it is beyond the authority of
the State of Alabama to remove burdens imposed by the Constitution itself. I conclude that the Alabama statute at issue
today lifts no state‑imposed burden on the free exercise of religion, and
accordingly cannot properly be viewed as an accommodation statute.
III
The Court
does not hold that the Establishment Clause is so hostile to religion that it
precludes the States from affording schoolchildren an opportunity for voluntary
silent prayer. To the contrary, the
moment of silence statutes of many States should satisfy the Establishment
Clause standard we have here applied.
The Court holds only that Alabama has intentionally crossed the line
between creating a quiet moment during which those so inclined may pray, and
affirmatively endorsing the particular religious practice of prayer. This line may be a fine one, but our
precedents and the principles of religious liberty require that we draw it. In my view, the judgment of the Court of
Appeals must be affirmed.
Chief
Justice BURGER, dissenting.
Some who
trouble to read the opinions in these cases will find it ironic‑‑
perhaps even bizarre‑‑that on the very day we heard arguments in
the cases, the Court's session opened with an invocation for Divine
protection. Across the park a few
hundred yards away, the House of Representatives and *85 the Senate regularly
open each session with a prayer. These
legislative prayers are not just one minute in duration, but are extended,
thoughtful invocations and prayers for Divine guidance. They are given, as they have been since
1789, by clergy appointed as official chaplains and paid from the Treasury of
the United States. Congress has also
provided chapels in the Capitol, at public expense, where Members and others
may pause for prayer, meditation‑‑or a moment of silence.
Inevitably
some wag is bound to say that the Court's holding today reflects a belief that
the historic practice of the Congress **2505 and this Court is justified
because members of the Judiciary and Congress are more in need of Divine
guidance than are schoolchildren. Still
others will say that all this controversy is "much ado about nothing,"
since no power on earth‑‑including this Court and Congress‑‑can
stop any teacher from opening the schoolday with a moment of silence for pupils
to meditate, to plan their day‑‑or to pray if they voluntarily
elect to do so.
I make
several points about today's curious holding.
(a) It
makes no sense to say that Alabama has "endorsed prayer" by merely
enacting a new statute "to specify expressly that voluntary prayer is one
of the authorized activities during a moment of silence," ante, at 2501
(O'CONNOR, J., concurring in judgment) (emphasis added). To suggest that a moment‑of‑silence
statute that includes the word "prayer" unconstitutionally endorses
religion, while one that simply provides for a moment of silence does not,
manifests not neutrality but hostility toward religion. For decades our opinions have stated that
hostility toward any religion or toward all religions is as much forbidden by
the Constitution as is an official establishment of religion. The Alabama Legislature has no more "endorsed"
religion than a state or the Congress does when it provides for legislative
chaplains, or than this Court does when it opens each session with an
invocation to *86 God. Today's decision recalls the observations of Justice
Goldberg:
"[U]ntutored devotion to the concept of
neutrality can lead to invocation or approval of results which partake not
simply of that noninterference and noninvolvement with the religious which the
Constitution commands, but of a brooding and pervasive dedication to the
secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by
the Constitution, but, it seems to me, are prohibited by it."
Abington School District v. Schempp, 374 U.S. 203,
306, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963) (concurring opinion).
(b) The
inexplicable aspect of the foregoing opinions, however, is what they advance as
support for the holding concerning the purpose of the Alabama Legislature. Rather than determining legislative purpose
from the face of the statute as a whole, [FN1] the opinions rely on three
factors in concluding that the Alabama Legislature had a "wholly
religious" purpose for enacting the statute under review, Ala.Code § 16‑1‑20.1
(Supp.1984): (i) statements of the
statute's sponsor, (ii) admissions in Governor James' answer to the second
amended complaint, and (iii) the difference between § 16‑1‑20.1 and
its predecessor statute.
FN1. The foregoing opinions likewise completely
ignore the statement of purpose that accompanied the moment‑of‑silence
bill throughout the legislative process:
"To permit a period of silence to be observed for the purpose of meditation or voluntary prayer
at the commencement of the first class of each day in all public
schools." 1981 Ala. Senate J. 14
(emphasis added). See also id., at 150,
307, 410, 535, 938, 967.
Curiously,
the opinions do not mention that all of the sponsor's statements relied upon‑‑including
the statement "inserted" into the Senate Journal‑‑were
made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given
well over a year after the statute was enacted. As even the appellees concede, see Brief for Appellees 18, there
is not a shred of evidence that *87 the legislature as a whole shared the
sponsor's motive or that a majority in either house was even aware of the
sponsor's view of the bill when it was passed.
The sole relevance of the sponsor's statements, therefore, is that they
reflect the personal, subjective motives of a single legislator. No case in the 195‑year history of
this Court supports the disconcerting idea that post‑enactment statements
by individual legislators are relevant in determining the constitutionality of
legislation.
Even if an
individual legislator's after‑the‑fact statements could rationally
be considered **2506 relevant, all of the opinions fail to mention that the
sponsor also testified that one of his purposes in drafting and sponsoring the
moment‑of‑silence bill was to clear up a widespread
misunderstanding that a schoolchild is legally prohibited from engaging in
silent, individual prayer once he steps inside a public school building. See App. 53‑54. That testimony is at least as important as
the statements the Court relies upon, and surely that testimony manifests a
permissible purpose.
The Court
also relies on the admissions of Governor James' answer to the second amended
complaint. Strangely, however, the
Court neglects to mention that there was no trial bearing on the
constitutionality of the Alabama statutes;
trial became unnecessary when the District Court held that the
Establishment Clause does not apply to the states. [FN2] The absence of a trial on the issue of the
constitutionality of § 16‑1‑20.1 is significant because the answer
filed by the State Board and Superintendent 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 had been tried, those state officials would
have offered evidence to contravene appellees' allegations concerning
legislative purpose. Thus, it is
completely inappropriate to accord any relevance to the admissions in the
Governor's answer.
FN2. The four days of trial to which the Court
refers concerned only the alleged practices of vocal, group prayer in the
classroom.
*88 The
several preceding opinions conclude that the principal difference between § 16‑1‑20.1
and its predecessor statute proves that the sole purpose behind the inclusion
of the phrase "or voluntary prayer" in § 16‑1‑20.1 was to
endorse and promote prayer. This
reasoning is simply a subtle way of focusing exclusively on the religious
component of the statute rather than examining the statute as a whole. Such logic‑‑if it can be called
that‑‑would lead the Court to hold, for example, that a state may
enact a statute that provides reimbursement for bus transportation to the
parents of all schoolchildren, but may not add parents of parochial school
students to an existing program providing reimbursement for parents of public
school students. Congress amended the
statutory Pledge of Allegiance 31 years ago to add the words "under
God." Act of June 14, 1954, Pub.L.
396, 68 Stat. 249. Do the several
opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their
method of focusing on the difference between § 16‑1‑20.1 and its
predecessor statute rather than examining § 16‑1‑20.1 as a whole.
[FN3] Any such holding would of course
make a mockery of our decisionmaking in Establishment Clause cases. And even were the Court's method correct,
the inclusion of the words "or voluntary prayer" in § 16‑1‑20.1
is wholly consistent with the clearly permissible purpose of clarifying that
silent, voluntary prayer is not forbidden in the public school building. [FN4]
FN3. The House Report on the legislation amending
the Pledge states that the purpose of the amendment was to affirm the principle
that "our people and our Government [are dependent] upon the moral
directions of the Creator."
H.R.Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). If this is simply "acknowledgment,"
not "endorsement," of religion, see ante, at 2501, n. 5 (O'CONNOR,
J., concurring in judgment), the distinction is far too infinitesimal for me to
grasp.
FN4. The several opinions suggest that other
similar statutes may survive today's decision.
See ante, at 2491; ante, at 2493‑2494
(POWELL, J., concurring); ante, at
2501, n. 5 (O'CONNOR, J., concurring in judgment). If this is true, these opinions become even less comprehensible,
given that the Court holds this statute invalid when there is no legitimate
evidence of "impermissible" purpose;
there could hardly be less evidence of "impermissible" purpose
than was shown in these cases.
*89 (c)
The Court's extended treatment of the "test" of Lemon v. Kurtzman,
403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), suggests a naive
preoccupation with an easy, bright‑line approach for addressing **2507
constitutional issues. We have
repeatedly cautioned that Lemon did not establish a rigid caliper capable of
resolving every Establishment Clause issue, but that it sought only to provide
"signposts." "In each
[Establishment Clause] case, the inquiry calls for line‑drawing; no fixed, per se rule can be
framed." Lynch v. Donnelly, 465
U.S. 668, 678, 104 S.Ct. 1355, 1362, 29 L.Ed.2d 745 (1984). In any event, our responsibility is not to
apply tidy formulas by rote; our duty
is to determine whether the statute or practice at issue is a step toward
establishing a state religion. Given
today's decision, however, perhaps it is understandable that the opinions in
support of the judgment all but ignore the Establishment Clause itself and the
concerns that underlie it.
(d) The
notion that the Alabama statute is a step toward creating an established church
borders on, if it does not trespass into, the ridiculous. The statute does not
remotely threaten religious liberty; it
affirmatively furthers the values of religious freedom and tolerance that the
Establishment Clause was designed to protect.
Without pressuring those who do not wish to pray, the statute simply
creates an opportunity to think, to plan, or to pray if one wishes‑‑as
Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices
of the individual pupils who wish to pray while at the same time creating a
time for nonreligious reflection for those who do not choose to pray. The statute also provides a meaningful
opportunity for schoolchildren to appreciate the absolute constitutional right
of each individual to worship and believe as the individual wishes. The statute "endorses" only the
view that the religious observances of others should be tolerated and, *90
where possible, accommodated. If the
government may not accommodate religious needs when it does so in a wholly
neutral and noncoercive manner, the "benevolent neutrality" that we
have long considered the correct constitutional standard will quickly translate
into the "callous indifference" that the Court has consistently held
the Establishment Clause does not require.
The Court
today has ignored the wise admonition of Justice Goldberg that "the
measure of constitutional adjudication is the ability and willingness to
distinguish between real threat and mere shadow." Abington School District v. Schempp, 374
U.S., at 308, 83 S.Ct., at 1616 (concurring opinion). The innocuous statute that the Court strikes down does not even
rise to the level of "mere shadow."
JUSTICE O'CONNOR paradoxically acknowledges: "It is difficult to discern a serious threat to religious
liberty from a room of silent, thoughtful schoolchildren." Ante, at 2499. [FN5] I would add to that, "even if they
choose to pray."
FN5. The principal plaintiff in this action has
stated: " 'I probably wouldn't
have brought the suit just on the silent meditation or prayer statute.... If that's all that existed, that wouldn't
have caused me much concern, unless it was implemented in a way that suggested
prayer was the preferred activity.' "
Malone, Prayers for Relief, 71 A.B.A.J. 61, 62, col. 1 (Apr. 1985)
(quoting Ishmael Jaffree).
The
mountains have labored and brought forth a mouse. [FN6]
FN6. Horace, Epistles, bk. III (Ars Poetica), line
139.
Justice
WHITE, dissenting.
For the
most part agreeing with the opinion of THE CHIEF JUSTICE, I dissent from the
Court's judgment invalidating Ala.Code § 16‑1‑20.1 (Supp.1984).
Because I do, it is apparent that in my view the First Amendment does not
proscribe either (1) statutes authorizing or requiring in so many words a
moment of silence before classes begin or (2) a statute that provides, when it
is initially passed, for a moment of silence for meditation or prayer. As I read the filed opinions, *91 a majority
of the Court would approve statutes that provided for a moment of silence but
did not mention prayer. But if a
student asked whether he could pray during that moment, it is difficult to
believe that the teacher **2508 could not answer in the affirmative. If that is the case, I would not invalidate
a statute that at the outset provided the legislative answer to the question
"May I pray?" This is so even
if the Alabama statute is infirm, which I do not believe it is, because of its
peculiar legislative history.
I
appreciate Justice REHNQUIST's explication of the history of the Religion
Clauses of the First Amendment. Against
that history, it would be quite understandable if we undertook to reassess our
cases dealing with these Clauses, particularly those dealing with the
Establishment Clause. Of course, I have
been out of step with many of the Court's decisions dealing with this subject
matter, and it is thus not surprising that I would support a basic
reconsideration of our precedents.
Justice
REHNQUIST, dissenting.
Thirty‑eight
years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16, 67
S.Ct. 504, 512, 91 L.Ed. 711 (1947), summarized its exegesis of Establishment
Clause doctrine thus:
"In the words of Jefferson, the clause
against establishment of religion by law was intended to erect 'a wall of
separation *92 between church and State.'
Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879)
]."
This
language from Reynolds, a case involving the Free Exercise Clause of the First
Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's
letter to the Danbury Baptist Association the phrase "I contemplate with
sovereign reverence that act of the whole American people which declared that
their legislature should 'make no law respecting an establishment of religion,
or prohibiting the free exercise thereof,' thus building a wall of separation
between church and State." 8
Writings of Thomas Jefferson 113 (H. Washington ed. 1861). [FN1]
FN1. Reynolds is the only authority cited as
direct precedent for the "wall of separation theory." 330 U.S., at 16, 67 S.Ct., at 512. Reynolds
is truly inapt; it dealt with a
Mormon's Free Exercise Clause challenge to a federal polygamy law.
It is
impossible to build sound constitutional doctrine upon a mistaken understanding
of constitutional history, but unfortunately the Establishment Clause has been
expressly freighted with Jefferson's misleading metaphor for nearly 40
years. Thomas Jefferson was of course
in France at the time the constitutional Amendments known as the Bill of Rights
were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of
courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a
less than ideal source of contemporary history as to the meaning of the
Religion Clauses of the First Amendment.
Jefferson's fellow Virginian, James Madison, with whom he was
joined in the battle for the enactment of the Virginia Statute of Religious
Liberty of 1786, did play as large a part as anyone in the drafting of the Bill
of Rights. He had two advantages over
Jefferson in this regard: he was
present in the United States, and he was a leading Member of the First
Congress. But when we turn to the
record of the proceedings in the First Congress leading up to the adoption of
the Establishment Clause of the Constitution, including Madison's significant
contributions thereto, we see a far different picture of its purpose than the
highly simplified "wall of separation between church and State."
During the
debates in the Thirteen Colonies over ratification of the Constitution, one of
the arguments frequently used by opponents of ratification was that without a
Bill of Rights guaranteeing individual liberty the new general Government *93
carried with it a potential for tyranny.
The typical response to this argument on the part of those who favored
ratification was that the general Government established by the Constitution
had only delegated powers, and that these delegated powers were so limited that
the Government would **2509 have no occasion to violate individual
liberties. This response satisfied
some, but not others, and of the 11 Colonies which ratified the Constitution by
early 1789, 5 proposed one or another amendments guaranteeing individual
liberty. Three‑‑New Hampshire,
New York, and Virginia‑‑included in one form or another a
declaration of religious freedom. See 3
J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id., at 328. Rhode Island and North Carolina flatly refused to ratify the
Constitution in the absence of amendments in the nature of a Bill of
Rights. 1 id., at 334; 4 id., at 244. Virginia and North Carolina proposed
identical guarantees of religious freedom:
"[A]ll men have an equal, natural and
unalienable right to the free exercise of religion, according to the dictates
of conscience, and ... no particular religious sect or society ought to be
favored or established, by law, in preference to others." 3 id., at 659; 4 id., at 244. [FN2]
FN2. The New York and Rhode Island proposals were
quite similar. They stated that no particular
"religious sect or society ought to be favored or established by law in
preference to others." 1 Elliot's
Debates, at 328; id., at 334.
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 named for bringing forward amendments to the
Constitution." 1 Annals of Cong.
424. Madison's subsequent remarks in urging the House to adopt his drafts of
the proposed amendments were less those of a dedicated advocate of the wisdom
of such measures than those of a prudent statesman seeking the enactment of
measures *94 sought by a number of his fellow citizens which could surely do no
harm and might do a great deal of good.
He said, inter alia:
"It appears to me that this House is bound by
every motive of prudence, not to let the first session pass overwithout
proposing to the State Legislatures, some things to be incorporated into the
Constitution, that will render it as acceptable to the whole people of the
United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something
should be done, that those who had been friendly to the adoption of this
Constitution may have the opportunity of proving to those who were opposed to
it that they were as sincerely devoted to liberty and a Republican Government,
as those who charged them with wishing the adoption of this Constitution in
order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish
from the bosom of every member of the community, any apprehensions that there
are those among his countrymen who wish to deprive them of the liberty for
which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not
injure the Constitution, and they can be ingrafted so as to give satisfaction
to the doubting part of our fellow‑citizens, the friends of the Federal
Government will evince that spirit of deference and concession for which they
have hitherto been distinguished."
Id., at 431‑432.
The
language Madison proposed for what ultimately became the Religion Clauses of
the First Amendment was this:
"The civil rights of none shall be abridged
on account of religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in any
manner, or on any pretext, infringed." Id., at 434.
*95 On the
same day that Madison proposed them, the amendments which formed the basis for
the Bill of Rights were referred by the House to a Committee of the Whole, and
after several weeks' delay were then referred to a Select Committee consisting
of Madison and 10 others. The Committee
revised Madison's proposal regarding the establishment of religion to read:
"[N]o religion shall be established by law,
nor shall the equal rights of conscience be infringed." Id., at 729.
**2510 The
Committee's proposed revisions were debated in the House on August 15,
1789. The entire debate on the Religion
Clauses is contained in two full columns of the "Annals," and does
not seem particularly illuminating. See id., at 729‑731. Representative Peter Sylvester of New York
expressed his dislike for the revised version, because it might have a tendency
"to abolish religion altogether."
Representative John Vining suggested that the two parts of the sentence
be transposed; Representative Elbridge
Gerry thought the language should be changed to read "that no religious
doctrine shall be established by law."
Id., at 729. Roger Sherman of
Connecticut had the traditional reason for opposing provisions of a Bill of
Rights‑‑that Congress had no delegated authority to "make
religious establishments"‑‑and therefore he opposed the
adoption of the amendment.
Representative Daniel Carroll of Maryland thought it desirable to adopt
the words proposed, saying "[h]e would not contend with gentlemen about
the phraseology, his object was to secure the substance in such a manner as to
satisfy the wishes of the honest part of the community."
Madison
then spoke, and said that "he apprehended the meaning of the words to be,
that Congress should not establish a religion, and enforce the legal
observation of it by law, nor compel men to worship God in any manner contrary
to their conscience." Id., at
730. He said that some of the state
conventions had thought that Congress might rely on *96 the Necessary and
Proper Clause to infringe the rights of conscience or to establish a national
religion, and "to prevent these effects he presumed the amendment was
intended, and he thought it as well expressed as the nature of the language
would admit." Ibid.
Representative Benjamin Huntington then expressed the view that
the Committee's language might "be taken in such latitude as to be
extremely hurtful to the cause of religion.
He understood the amendment to mean what had been expressed by the
gentleman from Virginia; but others
might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned
that in the New England States, where state‑established religions were
the rule rather than the exception, the federal courts might not be able to
entertain claims based upon an obligation under the bylaws of a religious
organization to contribute to the support of a minister or the building of a
place of worship. He hoped that
"the amendment would be made in such a way as to secure the rights of
conscience, and a free exercise of the rights of religion, but not to patronise
those who professed no religion at all." Id., at 730‑731.
Madison
responded that the insertion of the word "national" before the
word "religion" in the
Committee version should satisfy the minds of those who had criticized the
language. "He believed that the
people feared one sect might obtain a pre‑eminence, or two combine
together, and establish a religion to which they would compel others to
conform. He thought that if the word
'national' was introduced, it would point the amendment directly to the object
it was intended to prevent." Id.,
at 731. Representative Samuel Livermore
expressed himself as dissatisfied with Madison's proposed amendment, and
thought it would be better if the Committee language were altered to read that
"Congress shall make no laws touching religion, or infringing the rights
of conscience." Ibid.
Representative Gerry spoke in opposition to the use of the word
"national" because of strong feelings expressed during *97 the
ratification debates that a federal government, not a national government, was
created by the Constitution. Madison
thereby withdrew his proposal but insisted that his reference to a
"national religion" only referred to a national establishment and did
not mean that the Government was a national one. The question was taken on Representative Livermore's motion,
which passed by a vote of 31 for and 20 against. Ibid.
**2511 The
following week, without any apparent debate, the House voted to alter the
language of the Religion Clauses to read "Congress shall make no law
establishing religion, or to prevent the free exercise thereof, or to infringe
the rights of conscience." Id., at
766. The floor debates in the Senate
were secret, and therefore not reported in the Annals. The Senate on September 3, 1789, considered
several different forms of the Religion Amendment, and reported this language
back to the House:
"Congress shall make no law establishing
articles of faith or a mode of worship, or prohibiting the free exercise of
religion." C. Antieau, A. Downey,
& E. Roberts, Freedom From Federal Establishment 130 (1964).
The House
refused to accept the Senate's changes in the Bill of Rights and asked for a
conference; the version which emerged
from the conference was that which ultimately found its way into the
Constitution as a part of the First Amendment.
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof."
The House
and the Senate both accepted this language on successive days, and the
Amendment was proposed in this form.
On the
basis of the record of these proceedings in the House of Representatives, James
Madison was undoubtedly the most important architect among the Members of the
*98 House of the Amendments which became the Bill of Rights, but it was James
Madison speaking as an advocate of sensible legislative compromise, not as an
advocate of incorporating the Virginia Statute of Religious Liberty into the
United States Constitution. During the
ratification debate in the Virginia Convention, Madison had actually opposed
the idea of any Bill of Rights. His
sponsorship of the Amendments in the House was obviously not that of a zealous
believer in the necessity of the Religion Clauses, but of one who felt it might
do some good, could do no harm, and would satisfy those who had ratified the
Constitution on the condition that Congress propose a Bill of Rights.
[FN3] His original language "nor
shall any national religion be established" obviously does not conform to
the "wall of separation" between church and State idea which latter‑day
commentators have ascribed to him. His
explanation on the floor of the meaning of his language‑‑"that
Congress should not establish a religion, and enforce the legal observation of
it by law" is of the same ilk.
When he replied to Huntington in the debate over the proposal which came
from the Select Committee of the House, he urged that the language "no
religion shall be established by law" should be amended by inserting the
word "national" in front of the word "religion."
FN3. In a letter he sent to Jefferson in France,
Madison stated that he did not see much
importance in a Bill of Rights but he planned to support it because it was
"anxiously desired by others ... [and] it might be of use, and if properly
executed could not be of disservice."
5 Writings of James Madison 271 (G. Hunt ed. 1904).
It seems
indisputable from these glimpses of Madison's thinking, as reflected by actions
on the floor of the House in 1789, that he saw the Amendment as designed to
prohibit the establishment of a national religion, and perhaps to prevent
discrimination among sects. He did not
see it as requiring neutrality on the part of government between religion and
irreligion. Thus the Court's opinion in
Everson‑‑while correct in bracketing Madison and Jefferson together
in their exertions in their home State leading to the enactment of the *99
Virginia Statute of Religious Liberty‑‑is totally incorrect in
suggesting that Madison carried these views onto the floor of the United States
House of Representatives when he proposed the language which would ultimately
become the Bill of Rights.
The
repetition of this error in the Court's opinion in Illinois ex rel. McCollum v.
Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), and, inter
alia, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), does
not make it **2512 any sounder historically. Finally, in Abington School
District v. Schempp, 374 U.S. 203, 214, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844
(1963), the Court made the truly remarkable statement that "the views of
Madison and Jefferson, preceded by Roger Williams, came to be incorporated not
only in the Federal Constitution but likewise in those of most of our
States" (footnote omitted). On the
basis of what evidence we have, this statement is demonstrably incorrect as a
matter of history. [FN4] And its
repetition in varying forms in succeeding opinions of the Court can give it no
more authority than it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but it cannot
bind them as to matters of history.
FN4. State establishments were prevalent
throughout the late 18th and early 19th centuries. See Mass. Const. of 1780, Part 1, Art. III; N.H. Const. of 1784,
Art. VI; Md. Declaration of Rights of
1776, Art. XXXIII; R.I. Charter of 1633
(superseded 1842).
None of
the other Members of Congress who spoke during the August 15th debate expressed
the slightest indication that they thought the language before them from the
Select Committee, or the evil to be aimed at, would require that the Government
be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who
spoke were concerned, appears to have been the establishment of a national
church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about
whether the Government might aid all religions evenhandedly. If one were to follow the advice of Justice
BRENNAN, concurring in Abington School District v. Schempp, supra, at 236, 83
S.Ct., at 1578, 10 L.Ed.2d 844, and construe the Amendment in the light of what
particular "*100 practices ... challenged threaten those consequences
which the Framers deeply feared;
whether, in short, they tend to promote that type of interdependence
between religion and state which the First Amendment was designed to
prevent," one would have to say that the First Amendment Establishment
Clause should be read no more broadly than to prevent the establishment of a
national religion or the governmental preference of one religious sect over
another.
The
actions of the First Congress, which reenacted the Northwest Ordinance for the
governance of the Northwest Territory in 1789, confirm the view that Congress
did not mean that the Government should be neutral between religion and
irreligion. The House of
Representatives took up the Northwest Ordinance on the same day as Madison
introduced his proposed amendments which became the Bill of Rights; while at that time the Federal Government
was of course not bound by draft amendments to the Constitution which had not
yet been proposed by Congress, say nothing of ratified by the States, it seems
highly unlikely that the House of Representatives would simultaneously consider
proposed amendments to the Constitution and enact an important piece of
territorial legislation which conflicted with the intent of those
proposals. The Northwest Ordinance, 1
Stat. 50, reenacted the Northwest Ordinance of 1787 and provided that
"[r]eligion, morality, and knowledge, being necessary to good government
and the happiness of mankind, schools and the means of education shall forever
be encouraged." Id., at 52, n. (a
). Land grants for schools in the
Northwest Territory were not limited to public schools. It was not until 1845 that Congress limited
land grants in the new States and Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal
Establishment 163 (1964).
On the day
after the House of Representatives voted to adopt the form of the First
Amendment Religion Clauses which was ultimately proposed and ratified,
Representative *101 Elias Boudinot proposed a resolution asking President
George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he "could not think of
letting the session pass over without offering an opportunity to all the
citizens **2513 of the United States of joining with one voice, in returning to
Almighty God their sincere thanks for the many blessings he had poured down
upon them." 1 Annals of Cong. 914
(1789). Representative Aedanas Burke objected to the resolution because he did
not like "this mimicking of European customs"; Representative Thomas Tucker objected that
whether or not the people had reason to be satisfied with the Constitution was
something that the States knew better than the Congress, and in any event
"it is a religious matter, and, as such, is proscribed to us." Id.,
at 915. Representative Sherman supported
the resolution "not only as a laudable one in itself, but as warranted by
a number of precedents in Holy Writ:
for instance, the solemn thanksgivings and rejoicings which took place
in the time of Solomon, after the building of the temple, was a case in point.
This example, he thought, worthy of Christian imitation on the present
occasion...." Ibid.
Boudinot's
resolution was carried in the affirmative on September 25, 1789. Boudinot and Sherman, who favored the
Thanksgiving Proclamation, voted in favor of the adoption of the proposed
amendments to the Constitution, including the Religion Clauses; Tucker, who opposed the Thanksgiving
Proclamation, voted against the adoption of the amendments which became the
Bill of Rights.
Within two
weeks of this action by the House, George Washington responded to the Joint
Resolution which by now had been changed to include the language that the
President "recommend to the people of the United States a day of public
thanksgiving and prayer, to be observed by acknowledging with grateful hearts
the many and signal favors of Almighty God, especially by affording them an
opportunity peaceably to establish a form of government for their safety and
happiness." 1 J. Richardson,
Messages and Papers of *102 the Presidents, 1789‑1897, p. 64 (1897). The Presidential Proclamation was couched in
these words:
"Now, therefore, I do recommend and assign
Thursday, the 26th day of November next, to be devoted by the people of these
States to the service of that great and glorious Being who is the beneficent
author of all the good that was, that is, or that will be; that we may then all unite in rendering unto
Him our sincere and humble thanks for His kind care and protection of the
people of this country previous to their becoming a nation; for the signal and manifold mercies and the
favorable interpositions of His providence in the course and conclusion of the
late war; for the great degree of
tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in
which we have been enabled to establish constitutions of government for our
safety and happiness, and particularly the national one now lately instituted;
for the civil and religious liberty with which we are blessed, and the means we
have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He
has been pleased to confer upon us.
"And also that we may then unite in most
humbly offering our prayers and supplications to the great Lord and Ruler of
Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or
private stations, to perform our several and relative duties properly and
punctually; to render our National
Government a blessing to all the people by constantly being a Government of
wise, just, and constitutional laws, discreetly and faithfully executed and
obeyed; to protect and guide all
sovereigns and nations (especially such as have shown kindness to us), and to
bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and
virtue, and the increase of science among them and *103 us; and, generally, to grant unto all mankind
such a degree of temporal prosperity as He alone knows to be best." Ibid.
**2514
George Washington, John Adams, and James Madison all issued Thanksgiving
Proclamations; Thomas Jefferson did
not, saying:
"Fasting and prayer are religious
exercises; the enjoining them an act of
discipline. Every religious society has
a right to determine for itself the times for these exercises, and the objects
proper for them, according to their own particular tenets; and this right can never be safer than in
their own hands, where the Constitution has deposited it." 11 Writings of Thomas Jefferson 429 (A.
Lipscomb ed. 1904).
As the
United States moved from the 18th into the 19th century, Congress appropriated
time and again public moneys in support of sectarian Indian education carried
on by religious organizations. Typical
of these was Jefferson's treaty with the Kaskaskia Indians, which provided
annual cash support for the Tribe's Roman Catholic priest and church.
[FN5] It was not until 1897, when aid
to sectarian education *104 for Indians had reached $500,000 annually, that
Congress decided thereafter to cease appropriating money for education in
sectarian schools. See Act of June 7,
1897, 30 Stat. 62, 79; cf. Quick Bear
v. Leupp, 210 U.S. 50, 77‑79, 28 S.Ct. 690, 694‑696, 52 L.Ed. 954
(1908); J. O'Neill, Religion and
Education Under the Constitution 118‑119 (1949). See generally R. Cord, Separation of Church
and State 61‑82 (1982). This
history shows the fallacy of the notion found in Everson that "no tax in
any amount" may be levied for religious activities in any form. 330 U.S., at 15‑16, 67 S.Ct., at 511‑512.
FN5. The treaty stated in part:
"And whereas, the greater part of said Tribe
have been baptized and received into the Catholic church, to which they are
much attached, the United States will give annually for seven years one hundred
dollars towards the support of a priest of that religion ... [a]nd ... three
hundred dollars, to assist the said Tribe in the erection of a
church." 7 Stat. 79.
From 1789 to 1823 the United States Congress had
provided a trust endowment of up to 12,000 acres of land "for the Society
of the United Brethren, for propagating the Gospel among the
Heathen." See, e.g., ch. 46, 1
Stat. 490. The Act creating this
endowment was renewed periodically and the renewals were signed into law by
Washington, Adams, and Jefferson.
Congressional grants for the aid of religion were
not limited to Indians. In 1787 Congress provided land to the Ohio Company,
including acreage for the support of religion.
This grant was reauthorized in 1792.
See 1 Stat. 257. In 1833
Congress authorized the State of Ohio to sell the land set aside for religion
and use the proceeds "for the support of religion ... and for no other use
or purpose whatsoever...." 4 Stat.
618‑619.
Joseph
Story, a Member of this Court from 1811 to 1845, and during much of that time a
professor at the Harvard Law School, published by far the most comprehensive
treatise on the United States Constitution that had then appeared. Volume 2 of Story's Commentaries on the
Constitution of the United States 630‑632 (5th ed. 1891) discussed the
meaning of the Establishment Clause of the First Amendment this way:
"Probably at the time of the adoption of the
Constitution, and of the amendment to it now under consideration [First
Amendment], the general if not the universal sentiment in America was, that
Christianity ought to receive encouragement from the State so far as was not
incompatible with the private rights of conscience and the freedom of religious
worship. An attempt to level all
religions, and to make it a matter of state policy to hold all in utter
indifference, would have created universal disapprobation, if not universal
indignation.
* * *
"The real object of the [First] [A]mendment
was not to countenance, much less to advance, Mahometanism, or Judaism, or
infidelity, by prostrating Christianity;
but to exclude all rivalry among Christian sects, and to prevent *105
any national ecclesiastical establishment which should give to a hierarchy the
exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and
pest of former ages), and of the subversion **2515 of the rights of conscience
in matters of religion, which had been trampled upon almost from the days of
the Apostles to the present age...."
(Footnotes omitted.)
Thomas
Cooley's eminence as a legal authority rivaled that of Story. Cooley stated in his treatise entitled
Constitutional Limitations that aid to a particular religious sect was
prohibited by the United States Constitution, but he went on to say:
"But while thus careful to establish,
protect, and defend religious freedom and equality, the American constitutions
contain no provisions which prohibit the authorities from such solemn
recognition of a superintending Providence in public transactions and exercises
as the general religious sentiment of mankind inspires, and as seems meet and
proper in finite and dependent beings. Whatever may be the shades of religious
belief, all must acknowledge the fitness of recognizing in important human
affairs the superintending care and control of the Great Governor of the
Universe, and of acknowledging with thanksgiving his boundless favors, or
bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is
violated when thanksgiving or fast days are appointed; when chaplains are designated for the army
and navy; when legislative sessions are
opened with prayer or the reading of the Scriptures, or when religious teaching
is encouraged by a general exemption of the houses of religious worship from
taxation for the support of State government.
Undoubtedly the spirit of the Constitution will require, in all these
cases, that care be taken to avoid discrimination *106 in favor of or against
any one religious denomination or sect;
but the power to do any of these things does not become unconstitutional
simply because of its susceptibility to abuse...." Id., at *470‑*471. Cooley added that
"[t]his public recognition of religious
worship, however, is not based entirely, perhaps not even mainly, upon a sense
of what is due to the Supreme Being himself as the author of all good and of
all law; but the same reasons of state
policy which induce the government to aid institutions of charity and seminaries
of instruction will incline it also to foster religious worship and religious
institutions, as conservators of the public morals and valuable, if not
indispensable, assistants to the preservation of the public order." Id.,
at *470.
It would
seem from this evidence that the Establishment Clause of the First Amendment
had acquired a well‑accepted meaning:
it forbade establishment of a national religion, and forbade preference
among religious sects or denominations.
Indeed, the first American dictionary defined the word
"establishment" as "the act of establishing, founding, ratifying
or ordaining," such as in "[t]he episcopal form of religion, so
called, in England." 1 N. Webster,
American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require
government neutrality between religion and irreligion nor did it prohibit the
Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for
the proposition that the Framers intended to build the "wall of
separation" that was constitutionalized in Everson.
Notwithstanding the absence of a historical basis for this theory
of rigid separation, the wall idea might well have served as a useful albeit
misguided analytical concept, had it led this Court to unified and principled
results in Establishment Clause cases.
The opposite, unfortunately, has been *107 true; in the 38 years since Everson our
Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly
divided pluralities, [FN6] have with embarrassing candor conceded that the
"wall of separation" is **2516 merely a "blurred, indistinct,
and variable barrier," which "is not wholly accurate" and can
only be "dimly perceived."
Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d
745 (1971); Tilton v. Richardson, 403
U.S. 672, 677‑678, 91 S.Ct. 2091, 2095‑2096, 29 L.Ed.2d 790
(1971); Wolman v. Walter, 433 U.S. 229,
236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d
745 (1984).
FN6. Tilton v. Richardson, 403 U.S. 672, 677, 91
S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971);
Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975)
(partial); Roemer v. Maryland Bd. of Public
Works, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977).
Many of our other Establishment Clause cases have
been decided by bare 5‑4 majorities.
Committee for Public Education & Religious Liberty v. Regan, 444
U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980);
Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33
(1982); Mueller v. Allen, 463 U.S. 388,
103 S.Ct. 3062, 77 L.Ed.2d 721 (1983);
Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 29 L.Ed.2d 745
(1984); cf. Levitt v. Committee for
Public Education & Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37
L.Ed.2d 736 (1973).
Whether
due to its lack of historical support or its practical unworkability, the
Everson "wall" has proved all but useless as a guide to sound
constitutional adjudication. It
illustrates only too well the wisdom of Benjamin Cardozo's observation that
"[m]etaphors in law are to be narrowly watched, for starting as devices to
liberate thought, they end often by enslaving it." Berkey v. Third Avenue R. Co., 244 N.Y. 84,
94, 155 N.E. 58, 61 (1926).
But the
greatest injury of the "wall" notion is its mischievous diversion of
judges from the actual intentions of the drafters of the Bill of Rights. The "crucible of litigation,"
ante, at 2488, is well adapted to adjudicating factual disputes on the basis of
testimony presented in court, but no amount of repetition of historical errors
in judicial opinions can make the errors true. The "wall of separation
between church and State" is a metaphor based on bad history, a metaphor
which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
*108 The
Court has more recently attempted to add some mortar to Everson's wall through the three‑part
test of Lemon v. Kurtzman, supra, 403 U.S., at 614‑615, 91 S.Ct., at
2112, which served at first to offer a more useful test for purposes of the
Establishment Clause than did the "wall" metaphor. Generally stated, the Lemon test proscribes
state action that has a sectarian purpose or effect, or causes an impermissible
governmental entanglement with religion.
Lemon
cited Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20
L.Ed.2d 1060 (1968), as the source of the "purpose" and
"effect" prongs of the three‑part test. The Allen opinion explains, however, how it
inherited the purpose and effect elements from Schempp and Everson, both of
which contain the historical errors described above. See Allen, supra, at 243, 88 S.Ct., at 1926. Thus the purpose and effect prongs have the
same historical deficiencies as the wall concept itself: they are in no way based on either the
language or intent of the drafters.
The
secular purpose prong has proven mercurial in application because it has never
been fully defined, and we have never fully stated how the test is to
operate. If the purpose prong is
intended to void those aids to sectarian institutions accompanied by a stated
legislative purpose to aid religion, the prong will condemn nothing so long as
the legislature utters a secular purpose and says nothing about aiding
religion. Thus the constitutionality of
a statute may depend upon what the legislators put into the legislative history
and, more importantly, what they leave out.
The purpose prong means little if it only requires the legislature to
express any secular purpose and omit all sectarian references, because
legislators might do just that. Faced
with a valid legislative secular purpose, we could not properly ignore that
purpose without a factual basis for doing so.
Larson **2517 v. Valente, 456 U.S. 228, 262‑263, 102 S.Ct. 1673,
1692‑1693, 72 L.Ed.2d 33 (1982) (WHITE, J., dissenting).
However,
if the purpose prong is aimed to void all statutes enacted with the intent to
aid sectarian institutions, whether stated or not, then most statutes providing
any aid, such as *109 textbooks or bus rides for sectarian school children,
will fail because one of the purposes behind every statute, whether stated or
not, is to aid the target of its largesse.
In other words, if the purpose prong requires an absence of any intent
to aid sectarian institutions, whether or not expressed, few state laws in this
area could pass the test, and we would be required to void some state aids to
religion which we have already upheld.
E.g., Allen, supra.
The
entanglement prong of the Lemon test came from Walz v. Tax Comm'n, 397 U.S.
664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970). Walz involved a constitutional challenge to New York's time‑honored
practice of providing state property tax exemptions to church property used in
worship. The Walz opinion refused to "undermine the ultimate
constitutional objective [of the Establishment Clause] as illuminated by
history," id., at 671, 90 S.Ct., at 1412, and upheld the tax
exemption. The Court examined the
historical relationship between the State and church when church property was
in issue, and determined that the challenged tax exemption did not so entangle
New York with the church as to cause an intrusion or interference with
religion. Interferences with religion
should arguably be dealt with under the Free Exercise Clause, but the
entanglement inquiry in Walz was consistent with that case's broad survey of
the relationship between state taxation and religious property.
We have
not always followed Walz's reflective inquiry into entanglement, however. E.g., Wolman, supra, 433 U.S., at 254, 97
S.Ct., at 2608. One of the difficulties
with the entanglement prong is that, when divorced from the logic of Walz, it
creates an "insoluable paradox" in school aid cases: we have required aid to parochial schools to
be closely watched lest it be put to sectarian use, yet this close supervision itself
will create an entanglement. Roemer v. Maryland Bd. of Public Works, 426 U.S.
736, 768‑769, 96 S.Ct. 2337, 2355‑2356, 49 L.Ed.2d 179 (1976)
(WHITE, J., concurring in judgment). For example, in Wolman, supra, the Court
in part struck the State's nondiscriminatory provision of buses for parochial
school field trips, because the state supervision *110 of sectarian officials
in charge of field trips would be too onerous.
This type of self‑defeating result is certainly not required to
ensure that States do not establish religions.
The
entanglement test as applied in cases like Wolman also ignores the myriad state
administrative regulations properly placed upon sectarian institutions such as
curriculum, attendance, and certification requirements for sectarian schools,
or fire and safety regulations for churches.
Avoiding entanglement between church and State may be an important
consideration in a case like Walz, but if the entanglement prong were applied
to all state and church relations in the automatic manner in which it has been
applied to school aid cases, the State could hardly require anything of church‑related
institutions as a condition for receipt of financial assistance.
These
difficulties arise because the Lemon test has no more grounding in the history
of the First Amendment than does the wall theory upon which it rests. The three‑part test represents a
determined effort to craft a workable rule from a historically faulty
doctrine; but the rule can only be as
sound as the doctrine it attempts to service.
The three‑part test has simply not provided adequate standards for
deciding Establishment Clause cases, as this Court has slowly come to
realize. Even worse, the Lemon test has
caused this Court to fracture into unworkable plurality opinions, see n. 6,
supra, depending upon how each of the three factors applies to a certain state
action. The results from our school
services cases show the difficulty we have encountered in **2518 making the
Lemon test yield principled results.
For
example, a State may lend to parochial school children geography textbooks
[FN7] that contain maps of the United States, but the State may not lend maps
of the United States for use in geography class. [FN8] A State may lend textbooks on American
colonial history, but it may not lend a film on *111 George Washington, or a
film projector to show it in history class.
A State may lend classroom workbooks, but may not lend workbooks in
which the parochial school children write, thus rendering them nonreusable.
[FN9] A State may pay for bus
transportation to religious schools [FN10] but may not pay for bus
transportation from the parochial school to the public zoo or natural history
museum for a field trip. [FN11] A State
may pay for diagnostic services conducted in the parochial school but
therapeutic services must be given in a different building; speech and hearing "services"
conducted by the State inside the sectarian school are forbidden, Meek v.
Pittenger, 421 U.S. 349, 367, 371, 95 S.Ct. 1753, 1764, 1766, 49 L.Ed.2d 179
(1975), but the State may conduct speech and hearing diagnostic testing inside
the sectarian school. Wolman, 433 U.S.,
at 241, 97 S.Ct., at 2602. Exceptional
parochial school students may receive counseling, but it must take place
outside of the parochial school, [FN12] such as in a trailer parked down the
street. Id., at 245, 97 S.Ct., at
2604. A State may give cash to a
parochial school to pay for the administration of state‑written tests and
state‑ordered reporting services, [FN13] but it may not provide funds for
teacher‑prepared tests on secular subjects. [FN14] Religious instruction may not be given
inpublic school, [FN15] but the public school may release students during the
day for religion classes elsewhere, and may enforce attendance at those classes
with its truancy laws. [FN16]
FN7. Board of Education v. Allen, 392 U.S. 236, 88
S.Ct. 1923, 20 L.Ed.2d 1060 (1968).
FN8. Meek, 421 U.S., at 362‑366, 95 S.Ct.,
at 1761‑1763. A science book is permissible, a science kit
is not. See Wolman, 433 U.S., at 249,
97 S.Ct., at 2606.
FN9. See Meek, supra, at 354‑355, nn. 3, 4,
362‑366, 95 S.Ct., at 1761‑ 1763.
FN10. Everson v. Board of Education, 330 U.S. 1,
67 S.Ct. 504, 91 L.Ed. 711 (1947).
FN11. Wolman, supra, 433 U.S., at 252‑255,
97 S.Ct., at 2608‑2609.
FN12. Wolman, supra, at 241‑248, 97 S.Ct.,
at 2602‑2605; Meek, supra, at
352, n. 2, 367‑373, 95 S.Ct., at 1756, n. 2, 1764‑1767.
FN13. Regan, 444 U.S., at 648, 657‑659, 100
S.Ct., at 844, 848‑849.
FN14. Levitt, 413 U.S., at 479‑482, 93
S.Ct., at 2818‑2820.
FN15. Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).
FN16. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct.
679, 96 L.Ed. 954 (1952).
These
results violate the historically sound principle "that the Establishment
Clause does not forbid governments ... to [provide] general welfare under which
benefits are distributed to private individuals, even though many of those
individuals *112 may elect to use those benefits in ways that 'aid' religious
instruction or worship." Committee
for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 799, 93
S.Ct. 2955, 2989, 37 L.Ed.2d 948 (1973) (BURGER, C.J., concurring in part and
dissenting in part). It is not surprising in the light of this record that our
most recent opinions have expressed doubt on the usefulness of the Lemon test.
Although
the test initially provided helpful assistance, e.g., Tilton v. Richardson, 403
U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), we soon began describing the
test as only a "guideline," Committee for Public Education &
Religious Liberty v. Nyquist, supra, and lately we have described it as
"no more than [a] useful signpos[t]." Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77
L.Ed.2d 721 (1983), citing Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868,
2873, 37 L.Ed.2d 923 (1973); Larkin v.
Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). **2519 We have noted that the Lemon test is
"not easily applied," Meek, supra, 421 U.S., at 358, 95 S.Ct., at
1759, and as Justice WHITE noted in Committee for Public Education v. Regan,
444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), under the Lemon test we have
"sacrifice[d] clarity and predictability for flexibility." 444 U.S., at 662, 100 S.Ct., at 851. In Lynch we reiterated that the Lemon test
has never been binding on the Court, and we cited two cases where we had
declined to apply it. 465 U.S., at 679,
104 S.Ct., at 1362, citing Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77
L.Ed.2d 1019 (1983); Larson v. Valente,
456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).
If a
constitutional theory has no basis in the history of the amendment it seeks to
interpret, is difficult to apply and yields unprincipled results, I see little
use in it. The "crucible of
litigation," ante, at 2488, has produced only consistent unpredictability,
and today's effort is just a continuation of "the sisyphean task of trying
to patch together the 'blurred, indistinct and variable barrier' described in
Lemon v. Kurtzman." Regan, supra,
444 U.S, at 671, 100 S.Ct., at 855 (STEVENS, J., dissenting). We have done much straining since 1947, but
still we admit that we can only "dimly perceive" the Everson
wall. Tilton, supra. Our perception has been clouded not by the
Constitution but by the mists of an unnecessary metaphor.
*113 The
true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S., at 671‑673, 90
S.Ct., at 1412‑1413; see also
Lynch, supra, at 673‑678, 104 S.Ct., at 1359‑1362. As drafters of our Bill of Rights, the
Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of
that Charter and will only lead to the type of unprincipled decisionmaking that
has plagued our Establishment Clause cases since Everson.
The
Framers intended the Establishment Clause to prohibit the designation of any
church as a "national" one.
The Clause was also designed to stop the Federal Government from
asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the
Establishment Clause as against the States via the Fourteenth Amendment in
Everson, States are prohibited as well from establishing a religion or
discriminating between sects. As its
history abundantly shows, however, nothing in the Establishment Clause requires
government to be strictly neutral between religion and irreligion, nor does
that Clause prohibit Congress or the States from pursuing legitimate secular
ends through nondiscriminatory sectarian means.
The Court
strikes down the Alabama statute because the State wished to "characterize prayer as a favored
practice." Ante, at 2492. It would come as much of a shock to those
who drafted the Bill of Rights as it will to a large number of thoughtful
Americans today to learn that the Constitution, as construed by the majority,
prohibits the Alabama Legislature from "endorsing" prayer. George Washington himself, at the request of
the very Congress which passed the Bill of Rights, proclaimed a day of
"public thanksgiving and prayer, to be observed by acknowledging with
grateful hearts the many and signal favors of Almighty God." History must judge whether it was the Father
of his Country in 1789, or a majority of the Court today, which has strayed from
the meaning of the Establishment Clause.
The State
surely has a secular interest in regulating the manner in which public schools
are conducted. Nothing in *114 the
Establishment Clause of the First Amendment, properly understood, prohibits any
such generalized "endorsement" of prayer. I would therefore reverse the judgment of the Court of Appeals.