Alabama ‘Intentionally Crossed the Line’ : Excerpts From Court Decision

Here are excerpts from the Supreme Court’s decision Tuesday that public schools may not set aside daily moments of silence if students are told that “prayer” is one possible activity during the silence.

Justice John Paul Stevens, joined by Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and Lewis F. Powell Jr., writing the majority opinion:

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. Until the 14th Amendment was added to the Constitution, the First Amendment’s restraints on the exercise of federal power simply did not apply to the states. 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 . . . .

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.

Equal Respect

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 Mohammedism or Judaism. But when the underlying principle has been examined in the crucible of litigation, the 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.

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, 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.

. . . 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 day. The 1978 (Alabama) statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation.

Favored Practice

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.

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. For whenever the state itself speaks on a religious subject, one of the questions that we must ask is whether the government intends to convey a message of endorsement or disapproval of religion.

. . . The sponsor of the bill . . . Sen. Donald Holmes, inserted into the legislative record--apparently without dissent--a statement indicating that the legislation was an “effort to return voluntary prayer” to the public schools.

Justice Powell, writing a separate concurring opinion:

The record before us . . . makes clear that Alabama’s purpose was solely religious in character . . . .

I would vote to uphold the Alabama statute if it also had a clear secular purpose . . . . Nothing in the record before us, however, identifies a clear secular purpose, and the state also has failed to identify any non-religious reason for the statute’s enactment.

Justice Sandra Day O’Connor, writing a concurring opinion:

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.

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 . . . according to how the court regards vocal prayer or Bible reading.

Sponsors Religion

(The Alabama law) does more than permit prayer to occur during a moment of silence without interference. It endorses the decision to pray during a moment of silence, and accordingly sponsors a religious exercise . . . .

The court does not hold that the establishment clause (of the Constitution) is so hostile to religion that it precludes the states from affording schoolchildren an opportunity for voluntary silent prayer. To the contrary, the moment-of-silence statutes of many states should satisfy the establishment clause standard we have here applied. The court holds only that Alabama has intentionally crossed the line between creating a quiet moment during which those so inclined may pray, and affirmatively endorsing the particular religious practice of prayer.

This line may be a fine one, but our precedents and the principles of religious liberty require that we draw it.

Chief Justice Warren E. Burger, writing a dissenting opinion:

Some who trouble to read the opinions in this case will find it ironic--perhaps even bizarre--that on the very day we heard arguments in this case, the court’s session opened with an invocation for divine protection. Across the park a few hundred yards away, the House of Representatives and Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where members and others may pause for prayer, meditation--or a moment of silence.

Inevitably some wag is bound to say that the court’s holding today reflects a belief that the historic practice of Congress and this court is justified because members of the judiciary and Congress are more in need of divine guidance than are schoolchildren. Still others will say that all this controversy is “much ado about nothing” since no power on earth--including this court and Congress--can stop any teacher from opening the school day with a moment of silence for pupils to meditate, to plan their day--or to pray if they voluntarily elect to do so.

. . . It makes no sense to say that Alabama has “endorsed prayer” by merely enacting a new statute “to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence.” . . . To suggest that a moment-of-silence statute that includes the word “prayer” unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion.

. . . The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the establishment clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes--as Congress does by providing chaplains and chapels.

. . . The court today has ignored the wise admonition of Justice (Arthur) Goldberg that “the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” . . . The innocuous statute that the court strikes down does not even rise to the level of “mere shadow.” The mountains have labored and brought forth a mouse.

Justice William H. Rehnquist, writing a dissenting opinion:

It seems indisputable (that the First Amendment was) designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects.

(None of the founding fathers) expressed the slightest indication that he thought the language before them . . . would require that the government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another, but it was definitely not concerned about whether the government might aid all religions evenhandedly.

The state surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the establishment clause of the First Amendment, properly understood, prohibits any such generalized “endorsement” of prayer.

Justice Byron R. White, writing a dissenting opinion:

For the most part agreeing with the opinion of the chief justice, I dissent from the court’s judgment invalidating (the Alabama law). Because I do, it is apparent that in my view the First Amendment does not proscribe either (1) statutes authorizing or requiring in so many words a moment of silence before classes begin or (2) a statute that provides, when it is initially passed, for a moment of silence for meditation or prayer. As I read the filed opinions, a majority of the court would approve statutes that provided for a moment of silence but did not mention prayer. But if a student asked whether he could pray during that moment, it is difficult to believe that the teacher could not answer in the affirmative. If that is the case, I would not invalidate a statute that at the outset provided the legislative answer to the question, “May I pray?”