WALLACE V. JAFFREE, 472 U. S. 38 (1985) -- US Supreme Court Cases from Justia & Oyez

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. 472 U. S. 48-61.

(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. 472 U. S. 48-55.

(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, 403 U. S. 612-613. The First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. Pp. 472 U. S. 55-56.

(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, the statements of § 16-120.1's sponsor in the legislative record and in his

Page 472 U. S. 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. l'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 schoolday is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion. Pp. 472 U. S. 56-61.

705 F.2d 1526 and 713 F.2d 614, affirmed.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 472 U. S. 62. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 472 U. S. 67. BURGER, C.J., post, p. 472 U. S. 84, WHITE, J., post, p. 472 U. S. 90, and REHNQUIST, J., post, p. 472 U. S. 91, filed dissenting opinions.

Page 472 U. S. 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"; [Footnote 1] (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence "for meditation or voluntary prayer"; [Footnote 2] 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." [Footnote 3]

Page 472 U. S. 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, [Footnote 4] 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." [Footnote 5] After the trial on the merits, the District Court did not 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. [Footnote 6]

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. [Footnote 7] We have already affirmed the Court of Appeals' holding with respect to § 16-1-20.2. [Footnote 8] Moreover, appellees have not questioned the holding that § 16-1-20 is valid. [Footnote 9] 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

Page 472 U. S. 42

law respecting the establishment of religion within the meaning of the First Amendment. [Footnote 10]

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. [Footnote 11] 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. [Footnote 12]"

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"; [Footnote 13] that the defendant teachers had "on a daily basis" led their classes in saying certain prayers in unison; [Footnote 14] that the minor children were exposed to ostracism from their peer group class members if they did not participate; [Footnote 15] 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.

Page 472 U. S. 43

On June 4, 1982, appellees filed an amended complaint seeking class certification, [Footnote 16] 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-l-20.2. [Footnote 17]

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-l-20.1. [Footnote 18] 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." [Footnote 19] Apart from the purpose to return voluntary prayer to public school, Senator Holmes unequivocally testified that he had "no other purpose in mind." [Footnote 20] A week after the hearing, the District Court entered a preliminary injunction. [Footnote 21] 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. [Footnote 22]

Page 472 U. S. 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 § 16-120.1 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. [Footnote 23]

In its lengthy conclusions of law, the District Court reviewed a number of opinions of this Court interpreting the

Page 472 U. S. 45

Establishment Clause of the First Amendment, and then embarked on a fresh examination of the question whether the First Amendment 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. [Footnote 24]"

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. [Footnote 25]

Page 472 U. S. 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

Page 472 U. S. 47

that the District Court found persuasive, and that the District Court had misapplied the doctrine of stare decisis. [Footnote 26] The Court of Appeals then held that the teachers' religious activities violated the Establishment Clause of the First Amendment. [Footnote 27] With respect to § 16-1-20.1 and § 16-1-20.2, the Court of Appeals stated that "both statutes advance and encourage religious activities." [Footnote 28] The Court of Appeals then quoted with approval the District Court's finding that § 161-20.1, 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.' [Footnote 29]"

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 (1962)]." [Footnote 30]

Page 472 U. S. 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. [Footnote 31] 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 (1984).

II

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

Page 472 U. S. 49

protected by the First Amendment than does the Congress of the United States.

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. [Footnote 32] Until the Fourteenth Amendment was added to the Constitution, the First Amendment's restraints on the exercise of federal power simply did not apply to the States. [Footnote 33] 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. [Footnote 34]

Page 472 U. S. 50

Writing for a unanimous Court in Cantwell v. Connecticut, 310 U. S. 296, 303 (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. [Footnote 35] Enlarging on this theme, THE CHIEF JUSTICE recently wrote:

Page 472 U. S. 51

"We begin with the proposition that the right of freedom of thought protected by the First Amendment against state 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, 319 U. S. 633-634 (1943); id. at 319 U. S. 645 (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 319 U. S. 637."

"* * * *"

"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 (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 319 U. S. 636. 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

Page 472 U. S. 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 319 U. S. 642."

Wooley v. Maynard, 430 U. S. 705, 430 U. S. 714-715 (1977).

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. [Footnote 36] But when the underlying principle has been examined in the crucible of litigation, the

Page 472 U. S. 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 none at all. [Footnote 37] 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, [Footnote 38]

Page 472 U. S. 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. [Footnote 39]

Page 472 U. S. 55

As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943):

"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

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, 403 U. S. 612-613 (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, 396 U. S. 243 (1968); finally, the statute must not foster 'an excessive

Page 472 U. S. 56

government entanglement with religion.' Walz [v. Tax Comm'n, 397 U. S. 664, 397 U. S. 674 (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. [Footnote 40] 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, 374 U. S. 296-303 (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. [Footnote 41]

In applying the purpose test, it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion." [Footnote 42] 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 by any clearly secular purpose indeed, the statute had no secular purpose.

IV

The sponsor of the bill that became § 16-1-20.1, Senator Donald Holmes, inserted into the legislative record -- apparently

Page 472 U. S. 57

without dissent -- a statement indicating that the legislation was an "effort to return voluntary prayer" to the public schools. [Footnote 43] 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." [Footnote 44] The State did not present evidence of any secular purpose. [Footnote 45]

Page 472 U. S. 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 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 § 161-20.1 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

Page 472 U. S. 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. [Footnote 46] Thus, the only significant textual difference is the addition of the words "or voluntary prayer."

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. [Footnote 47] 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. [Footnote 48]

We must, therefore, conclude that the Alabama Legislature intended to change existing law, [Footnote 49] and that it was motivated

Page 472 U. S. 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 § 161-20, 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. [Footnote 50]

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. [Footnote 51] For whenever the State itself speaks on a religious

Page 472 U. S. 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." [Footnote 52] 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, [Footnote 53]"

we conclude that § 16-1-20.1 violates the First Amendment.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Page 472 U. S. 62

* Together with No. 83-929, Smith et al. v. Jaffree et al., also on appeal from the same court.

[Footnote 1]

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 § 16-120 is unconstitutional. See Brief for Appellees 2.

[Footnote 2]

Alabama Code § 16-120.1 (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."

[Footnote 3]

Alabama Code § 16-120.2 (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."

[Footnote 4]

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).

[Footnote 5]

Ibid.

[Footnote 6]

Jaffree v. Board of School Comm'rs of Mobile County, 554 F.Supp. 1104, 1128 (SD Ala. 1983).

[Footnote 7]

705 F.2d 1526, 1535-1536 (CA11 1983).

[Footnote 8]

Wallace v. Jaffree, 466 U. S. 924 (1984).

[Footnote 9]

See n 1, supra.

[Footnote 10]

The Establishment Clause of the First Amendment, of course, has long been held applicable to the State. Everson v. Board of Education, 330 U. S. 1, 330 U. S. 15-16 (1947).

App. 4-7.

Id. at 4.

Id. at 7.

Ibid.

Id. at 8-9.

Id. at 17.

Id. at 21. See nn. 1 2 and 3 supra.

App. 47-49.

Id. at 50.

Id. at 52

Jaffree v. James, 544 F.Supp. 727 (SD Ala.1982).

[Footnote 22]

See Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613 (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. @ 374 U. S. 224] (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. @ 370 U. S. 430] (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.

[Footnote 23]

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.

[Footnote 24]

Id. at 1128.

[Footnote 25]

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 (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 (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, 459 U. S. 1315-1316 (1983).

[Footnote 26]

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. @ 454 U. S. 375] (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 454 U. S. 375]. @See also 460 U. S. 535] (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 1532.

[Footnote 27]

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 (1984).

Ibid.

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 § 16-120.1) 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.

[Footnote 31]

713 F.2d 614 (CA11 1983) (per curiam).

[Footnote 32]

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."

[Footnote 33]

@See 44 U. S. 609 (1845).

[Footnote 34]

See, e.g., Wooley v. Maynard, 430 U. S. 705, 430 U. S. 714 (1977) (right to refuse endorsement of an offensive state motto); Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4 (1949) (right to free speech); West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 637-638 (1943) (right to refuse to participate in a ceremony that offends one's conscience); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303 (1940) (right to proselytize one's religious faith); Hague v. CIO, 307 U. S. 496, 307 U. S. 519 (1939) (opinion of Stone, J.) (right to assemble peaceably); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 707 (1931) (right to publish an unpopular newspaper); Whitney v. California, 274 U. S. 357, 274 U. S. 373 (1927) (Brandeis, J., concurring) (right to advocate the cause of Communism); Gitlow v. New York, 268 U. S. 652, 268 U. S. 672 (1925) (Holmes, J., dissenting) (right to express an unpopular opinion); cf. Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 215, n. 7 (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."

[Footnote 35]

For example, in Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 164 (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; Cantwell v. Connecticut, 310 U. S. 296. 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, 454 U. S. 269 (1981) (stating that religious worship and discussion "are forms of speech and association protected by the First Amendment").

[Footnote 36]

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).

[Footnote 37]

Thus, in Everson v. Board of Education, 330 U.S. at 330 U. S. 15, 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 330 U. S. 18 (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 347 U. S. 216 ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id. at 347 U. S. 226 ("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, 367 U. S. 495 (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").

[Footnote 38]

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, 370 U. S. 435 (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").

[Footnote 39]

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 have been 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 319 U. S. 640-641. See also Engel v. Vitale, 370 U.S. at 370 U. S. 431 ("a union of government and religion tends to destroy government and to degrade religion").

[Footnote 40]

See n 22, supra.

[Footnote 41]

See Lynch v. Donnelly, 465 U. S. 668, 465 U. S. 680 (1984); id. at 465 U. S. 690 (O'CONNOR, J., concurring); id. at 465 U. S. 697 (BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); Mueller v. Allen, 463 U. S. 388, 463 U. S. 394 (1983); Widmar v. Vincent, 454 U.S. at 454 U. S. 271; Stone v. Graham, 449 U. S. 39, 449 U. S. 40-41 (1980) (per curiam); Wolman v. Walter, 433 U. S. 229, 433 U. S. 236 (1977).

[Footnote 42]

Lynch v. Donnelly, 465 U.S. at 465 U. S. 690 (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").

[Footnote 43]

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).

[Footnote 44]

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 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).

[Footnote 45]

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 (1981); Sherbert v. Verner, 374 U. S. 398 (1963); see also Abington School District v. Schempp, 374 U.S. at 374 U. S. 226 ("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.

[Footnote 46]

See n 1, supra.

[Footnote 47]

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).

[Footnote 48]

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.

[Footnote 49]

United States v. Champlin Refining Co., 341 U. S. 290, 341 U. S. 297 (1951) (a "statute cannot be divorced from the circumstances existing at the time it was passed"); id. at 341 U. S. 298 (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, 337 U. S. 80-81 (1949) (rejecting Government's argument that Congress had no desire to change law when enacting legislation).

[Footnote 50]

See, e.g., Stone v. Graham, 449 U.S. at 449 U. S. 42 (per curiam); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 413 U. S. 792-793 (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, 393 U. S. 109 (1968); Abington School District v. Schempp, 374 U.S. at 374 U. S. 215-222; Engel v. Vitale, 370 U.S. at 370 U. S. 430 ("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, 333 U. S. 211-212 (1948); Everson v. Board of Education, 330 U.S. at 330 U. S. 18.

[Footnote 51]

As this Court stated in Engel v. Vitale, 370 U.S. at 370 U. S. 430:

"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 370 U. S. 431. 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 333 U. S. 227 (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 nonconformity is not an outstanding characteristic of children."

See also Abington School District v. Schempp, 374 U.S. at 374 U. S. 290 (BRENNAN, J., concurring); cf. Marsh v. Chambers, 463 U. S. 783, 463 U. S. 792 (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 319 U. S. 637.

[Footnote 52]

Lynch v. Donnelly, 465 U.S. at 465 U. S. 690-691 (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").

[Footnote 53]

Id. at 465 U. S. 694.

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. [Footnote 2/1] I agree fully with JUSTICE O'CONNOR's assertion that some moment-of-silence statutes may be constitutional, [Footnote 2/2] a suggestion set forth in the Court's opinion as well. Ante at 472 U. S. 59.

Page 472 U. S. 63

I write separately to express additional views and to respond to criticism of the three-pronged Lemon test. [Footnote 2/3] Lemon v. Kurtzman, 403 U. S. 602 (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 (1983). [Footnote 2/4] 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. [Footnote 2/5]

Page 472 U. S. 64

The first inquiry under Lemon is whether the challenged statute has a "secular legislative purpose." Lemon v. Kurtzman, supra, at 403 U. S. 612. 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 472 U. S. 75 (concurring in judgment). In Stone v. Graham, 449 U. S. 39 (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. [Footnote 2/6] Lynch v. Donnelly, 465 U. S. 668, 465 U. S. 681, n. 6 (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 (1970) (New York's property tax exemption for religious organizations upheld); Everson v. Board of Education, 330 U. S. 1 (1947) (holding that a township may reimburse parents for the cost of transporting their children to parochial schools).

Page 472 U. S. 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 472 U. S. 57, 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 472 U. S. 77 (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 472 U. S. 58-60.

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." [Footnote 2/7] Ibid. The Court of Appeals likewise applied the Lemon test and found "a lack of secular purpose on the part of the Alabama Legislature."

Page 472 U. S. 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.

I would vote to uphold the Alabama statute if it also had a clear secular purpose. See Mueller v. Allen, 463 U. S. 388, 463 U. S. 394-395 (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. [Footnote 2/8] 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.

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." [Footnote 2/9] See Board of Education v. Allen, 392 U. S. 236, 392 U. S. 243 (1968). Nor would such a statute "foster an excessive government entanglement with religion.'" Lemon

Page 472 U. S. 67

v. Kurtzman, 403 U.S. at 403 U. S. 612-613, quoting Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 674.

I join the opinion and judgment of the Court.

[Footnote 2/1]

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 (1984). Thus, our opinions today address only the validity of § 16-1-20.1. See ante at 472 U. S. 41-42.

[Footnote 2/2]

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 374 U. S. 281 (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 472 U. S. 72-73 (concurring in judgment).

[Footnote 2/3]

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 472 U. S. 68 (concurring in judgment). JUSTICE REHNQUIST would discard the Lemon test entirely. Post at 472 U. S. 112 (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, 469 U. S. 559 (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 . . .").

[Footnote 2/4]

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 463 U. S. 792.

[Footnote 2/5]

Lemon v. Kurtzman, 403 U. S. 602 (1971), 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 (1973), for example, the Court applied the "now well-defined three-part test" of Lemon. 413 U.S. at 413 U. S. 772.

In Lynch v. Donnelly, 465 U. S. 668 (1984), we said that the Court is not "confined to any single test or criterion in this sensitive area." Id. at 465 U. S. 679. 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 465 U. S. 681.

[Footnote 2/6]

The Court's opinion recognizes that "a statute that is motivated in part by a religious purpose may satisfy the first criterion." Ante at 472 U. S. 56. The Court simply holds that "a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Ibid. (emphasis added).

[Footnote 2/7]

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 (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 (1983) (in chambers).

[Footnote 2/8]

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 9 et seq.

[Footnote 2/9]

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 472 U. S. 72 (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.

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

Page 472 U. S. 68

the free exercise thereof. Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303 (1940). Although a distinct jurisprudence has enveloped each of these Clauses, their common purpose is to secure religious liberty. See Engel v. Vitale, 370 U. S. 421, 370 U. S. 430 (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, 397 U. S. 694 (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 (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 403 U. S. 612-613. 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, 463 U. S. 403, n. 11 (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 (1983). The author of Lemon himself apparently questions the test's general applicability. See Lynch v. Donnelly, 465 U. S. 668, 465 U. S. 679 (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 472 U. S. 108-113.

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

Page 472 U. S. 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, 413 U. S. 741 (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 465 U. S. 687-689 (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 465 U. S. 688. 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 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

Page 472 U. S. 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

Engel v. Vitale, supra, at 370 U. S. 431. 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.

Twenty-five states permit or require public school teachers to have students observe a moment of silence in their classrooms. [Footnote 3/1] A few statutes provide that the moment of silence

Page 472 U. S. 71

is for the purpose of meditation alone. See Ariz.Rev.Stat.Ann. § 15-22 (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 (NJ 1983) (striking down statute); Duffy v. Las Cruces Public Schools, 557 F.Supp. 1013 (NM 1983) (same); and Beck v. McElrath, 548 F.Supp. 1161 (MD Tenn.1982) (same). See also Walter v. West Virginia Board of Education, Civ. Action No. 84-5366 (SD W.Va. Mar. 14, 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 (1963); Engel v. Vitale, 370 U. S. 421 (1962), the courts that have struck down the moment of silence statutes generally conclude that their purpose and effect are to encourage prayer in public schools.

The Engel and Abington decisions are not dispositive on the constitutionality of moment of silence laws. In those

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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 370 U. S. 425. 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 374 U. S. 223-224. 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 370 U. S. 431, 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, at 374 U. S. 281 (BRENNAN, J., concurring) ("[T]he observance of a moment

Page 472 U. S. 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, 454 U. S. 272, n. 11 (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 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. [Footnote 3/2]

Page 472 U. S. 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 465 U. S. 694 (concurring opinion) ("Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion"). 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, 330 U. S. 6 (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, 366 U. S. 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, [Footnote 3/3] or if the statute disclaims an intent to encourage prayer over alternatives during a moment of silence, [Footnote 3/4] then courts should generally

Page 472 U. S. 75

defer to that stated intent. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 413 U. S. 773 (1973); Tilton v. Richardson, 403 U. S. 672, 403 U. S. 678-679 (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, 393 U. S. 108 (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.

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 472 U. S. 108. It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit 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,

Page 472 U. S. 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 465 U. S. 693-694. 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, 466 U. S. 517-518, n. 1 (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, 394 U. S. 592 (1969), and whether allegedly obscene material appeals to "prurient interests," Miller v. California, 413 U. S. 15, 413 U. S. 24 (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.

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

Page 472 U. S. 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 472 U. S. 56-57. 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.

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 472 U. S. 40, 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

Page 472 U. S. 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 472 U. S. 57, 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. [Footnote 3/5] While it is therefore unnecessary also to determine the effect of the statute, Lynch, 465 U.S. at 465 U. S. 690 (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.

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 397 U. S. 669, 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

Page 472 U. S. 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 472 U. S. 91-106, 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 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, 256 U. S. 349 (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

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adopted are now constitutionally impermissible."

Tennessee v. Garner,

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WALLACE V. JAFFREE, 472 U. S. 38 (1985)

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