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JUSTICE STEVENS delivered the opinion of the Court.
JUSTICE WHITE, dissenting.
JUSTICE REHNQUIST, dissenting.
JUSTICE POWELL, concurring.
Some who trouble to read the opinions in these cases will find
it ironic -- perhaps even bizarre -- that on the very day we heard
arguments in the cases, the Court's session opened with an invocation
for Divine protection. Across the park a few hundred yards away,
the House of Representatives and the Senate regularly open each
session with a prayer. These legislative prayers are not just
one minute in duration, but are extended, thoughtful invocations
and prayers for Divine guidance. They are given, as they have
been since 1789, by clergy appointed as official chaplains and
paid from the Treasury of the United States. Congress has also
provided chapels in the Capitol, at public expense, where Members
and others may pause for prayer, meditation -- or a moment of
silence.
Inevitably some wag is bound to say that the Court's holding today
reflects a belief that the historic practice of the Congress and
this Court is justified because members of the Judiciary and Congress
are more in need of Divine guidance than are schoolchildren. Still
others will say that all this controversy is "much ado about
nothing," since no power on earth -- including this Court
and Congress -- can stop any teacher from opening the schoolday
with a moment of silence for pupils to meditate, to plan their
day -- or to pray if they voluntarily elect to do so.
I make several points about today's curious holding.
(a) It makes no sense to say that Alabama has "endorsed prayer"
by merely enacting a new statute "to specify expressly that
voluntary prayer is one of the authorized activities during a
moment of silence," ante, at 77 (O'CONNOR, J., concurring
in judgment) (emphasis added). To suggest that a moment-of-silence
statute that includes the word "prayer" unconstitutionally
endorses religion, while one that simply provides for a moment
of silence does not, manifests not neutrality but hostility toward
religion. For decades our opinions have stated that hostility
toward any religion or toward all religions is as much forbidden
by the Constitution as is an official establishment of religion.
The Alabama Legislature has no more "endorsed" religion
than a state or the Congress does when it provides for legislative
chaplains, or than this Court does when it opens each session
with an invocation to God. Today's decision recalls the observations
of Justice Goldberg:
"[Untutored] devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." Abington School District v. Schempp, 374 U.S. 203, 306 (1963) (concurring opinion).
(b) The inexplicable aspect of the foregoing opinions, however,
is what they advance as support for the holding concerning the
purpose of the Alabama Legislature. Rather than determining legislative
purpose from the face of the statute as a whole, 1
the opinions rely on three factors in concluding that the Alabama
Legislature had a "wholly religious" purpose for enacting
the statute under review, Ala. Code § 16-1-20.1 (Supp. 1984):
(i) statements of the statute's sponsor, (ii) admissions in Governor
James' answer to the second amended complaint, and (iii) the difference
between § 16-1-20.1 and its predecessor statute.
Curiously, the opinions do not mention that all of the sponsor's
statements relied upon -- including the statement "inserted"
into the Senate Journal -- were made after the legislature had
passed the statute; indeed, the testimony that the Court finds
critical was given well over a year after the statute was enacted.
As even the appellees concede, see Brief for Appellees 18, there
is not a shred of evidence that the legislature as a whole shared
the sponsor's motive or that a majority in either house was even
aware of the sponsor's view of the bill when it was passed. The
sole relevance of the sponsor's statements, therefore, is that
they reflect the personal, subjective motives of a single legislator.
No case in the 195-year history of this Court supports the disconcerting
idea that postenactment statements by individual legislators are
relevant in determining the constitutionality of legislation.
Even if an individual legislator's after-the-fact statements could
rationally be considered relevant, all of the opinions fail to
mention that the sponsor also testified that one of his purposes
in drafting and sponsoring the moment-of-silence bill was to clear
up a widespread misunderstanding that a schoolchild is legally
prohibited from engaging in silent, individual prayer once he
steps inside a public school building. See App. 53-54. That testimony
is at least as important as the statements the Court relies upon,
and surely that testimony manifests a permissible purpose.
The Court also relies on the admissions of Governor James' answer
to the second amended complaint. Strangely, however, the Court
neglects to mention that there was no trial bearing on the constitutionality
of the Alabama statutes; trial became unnecessary when the District
Court held that the Establishment Clause does not apply to the
states. 2 The absence of a
trial on the issue of the constitutionality of § 16-1-20.1
is significant because the answer filed by the State Board and
Superintendent of Education did not make the same admissions that
the Governor's answer made. See 1 Record 187. The Court cannot
know whether, if these cases had been tried, those state officials
would have offered evidence to contravene appellees' allegations
concerning legislative purpose. Thus, it is completely inappropriate
to accord any relevance to the admissions in the Governor's answer.
The several preceding opinions conclude that the principal difference
between § 16-1-20.1 and its predecessor statute proves that
the sole purpose behind the inclusion of the phrase "or voluntary
prayer" in § 16-1-20.1 was to endorse and promote prayer.
This reasoning is simply a subtle way of focusing exclusively
on the religious component of the statute rather than examining
the statute as a whole. Such logic -- if it can be called that
-- would lead the Court to hold, for example, that a state may
enact a statute that provides reimbursement for bus transportation
to the parents of all schoolchildren, but may not add parents
of parochial school students to an existing program providing
reimbursement for parents of public school students. Congress
amended the statutory Pledge of Allegiance 31 years ago to add
the words "under God." Act of June 14, 1954, Pub. L.
396, 68 Stat. 249. Do the several opinions in support of the judgment
today render the Pledge unconstitutional? That would be the consequence
of their method of focusing on the difference between § 16-1-20.1
and its predecessor statute rather than examining § 16-1-20.1
as a whole. 3 Any such holding
would of course make a mockery of our decisionmaking in Establishment
Clause cases. And even were the Court's method correct, the inclusion
of the words "or voluntary prayer" in § 16-1-20.1
is wholly consistent with the clearly permissible purpose of clarifying
that silent, voluntary prayer is not forbidden in the public school
building. 4
(c) The Court's extended treatment of the "test" of
Lemon v. Kurtzman, 403 U.S. 602 (1971), suggests a naive preoccupation
with an easy, bright-line approach for addressing constitutional
issues. We have repeatedly cautioned that Lemon did not establish
a rigid caliper capable of resolving every Establishment Clause
issue, but that it sought only to provide "signposts."
"In each [Establishment Clause] case, the inquiry calls for
line-drawing; no fixed, per se rule can be framed." Lynch
v. Donnelly, 465 U.S. 668, 678 (1984). In any event, our responsibility
is not to apply tidy formulas by rote; our duty is to determine
whether the statute or practice at issue is a step toward establishing
a state religion. Given today's decision, however, perhaps it
is understandable that the opinions in support of the judgment
all but ignore the Establishment Clause itself and the concerns
that underlie it.
(d) The notion that the Alabama statute is a step toward creating
an established church borders on, if it does not trespass into,
the ridiculous. The statute does not remotely threaten religious
liberty; it affirmatively furthers the values of religious freedom
and tolerance that the Establishment Clause was designed to protect.
Without pressuring those who do not wish to pray, the statute
simply creates an opportunity to think, to plan, or to pray if
one wishes -- as Congress does by providing chaplains and chapels.
It accommodates the purely private, voluntary religious choices
of the individual pupils who wish to pray while at the same time
creating a time for nonreligious reflection for those who do not
choose to pray. The statute also provides a meaningful opportunity
for schoolchildren to appreciate the absolute constitutional right
of each individual to worship and believe as the individual wishes.
The statute "endorses" only the view that the religious
observances of others should be tolerated and, where possible,
accommodated. If the government may not accommodate religious
needs when it does so in a wholly neutral and noncoercive manner,
the "benevolent neutrality" that we have long considered
the correct constitutional standard will quickly translate into
the "callous indifference" that the Court has consistently
held the Establishment Clause does not require.
The Court today has ignored the wise admonition of Justice Goldberg
that "the measure of constitutional adjudication is the ability
and willingness to distinguish between real threat and mere shadow."
Abington School District v. Schempp, 374 U.S., at 308 (concurring
opinion). The innocuous statute that the Court strikes down does
not even rise to the level of "mere shadow." JUSTICE
O'CONNOR paradoxically acknowledges: "It is difficult to
discern a serious threat to religious liberty from a room of silent,
thoughtful schoolchildren." Ante, at 73. 5
I would add to that, "even if they choose to pray."
The mountains have labored and brought forth a mouse. 6
------------Begin Footnotes---------------
1 The foregoing opinions likewise
completely ignore the statement of purpose that accompanied the
moment-of-silence bill throughout the legislative process: "To
permit a period of silence to be observed for the purpose of meditation
or voluntary prayer at the commencement of the first class of
each day in all public schools." 1981 Ala. Senate J. 14 (emphasis
added). See also id., at 150, 307, 410, 535, 938, 967.
2 The four days of trial to
which the Court refers concerned only the alleged practices of
vocal, group prayer in the classroom.
3 The House Report on the legislation
amending the Pledge states that the purpose of the amendment was
to affirm the principle that "our people and our Government
[are dependent] upon the moral directions of the Creator."
H. R. Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). If this is
simply "acknowledgment," not "endorsement,"
of religion, see ante, at 78, n. 5 (O'CONNOR, J., concurring in
judgment), the distinction is far too infinitesimal for me to
grasp.
4 The several opinions suggest
that other similar statutes may survive today's decision. See
ante, at 59; ante, at 62 (POWELL, J., concurring); ante, at 78,
n. 5 (O'CONNOR, J., concurring in judgment). If this is true,
these opinions become even less comprehensible, given that the
Court holds this statute invalid when there is no legitimate evidence
of "impermissible" purpose; there could hardly be less
evidence of "impermissible" purpose than was shown in
these cases.
5 The principal plaintiff in
this action has stated: "'I probably wouldn't have brought
the suit just on the silent meditation or prayer statute . . .
. If that's all that existed, that wouldn't have caused me much
concern, unless it was implemented in a way that suggested prayer
was the preferred activity.'" Malone, Prayers for Relief,
71 A. B. A. J. 61, 62, col. 1 (Apr. 1985) (quoting Ishmael Jaffree).
6 Horace, Epistles, bk. III
(Ars Poetica), line 139.
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