In its 1962 and 1963 decisions in Engel v. Vitale and Abington Township School District v. Schempp, respectively, the Supreme Court ruled that the Establishment Clause of the First Amendment prohibits school-sponsored group prayer and similar devotional exercises in the public schools. These decisions were designed in part to protect the religious liberty of dissenting students and their parents. Many mainstream religious believers, however, found the decisions hostile to religion, and this position continues to have substantial political support. Critics have pushed for a constitutional amendment, and they have urged the Court itself to overrule its decisions concerning prayer in public schools. These efforts have failed. Although privately initiated prayer is protected, even in the public schools, the Supreme Court has consistently reaffirmed that the schools themselves cannot sponsor or promote it.
Moment of silence statutes represent an alternative response to the Supreme Court’s decisions, a response that tests the boundaries of the Court’s constitutional doctrine. Adopted by more than half of the states, these statutes authorize moments of silence in the public schools, moments that may be used by religious students as a time for silent prayer. It was inevitable that these laws would be challenged, and the question of their constitutionality reached the Supreme Court in 1985. In a range of opinions, the justices in Wallace v. Jaffree confronted not only the moment of silence issue, but also broader questions concerning the proper meaning and application of the establishment clause.
Wallace arose as a challenge to each of three Alabama statutes concerning the public schools, one enacted in 1978, another in 1981, and the third in 1982. The 1978 statute authorized a period of silence ‘‘for meditation.’’ The 1981 law separately authorized a period of silence ‘‘for meditation or voluntary prayer.’’ The 1982 enactment authorized a prescribed spoken prayer, this in direct contravention of Engel and Schempp.
The challengers ultimately abandoned their attack on the 1978 statute. The district court upheld the 1981 statute and, remarkably, the 1982 statute as well. Disregarding the Supreme Court’s incorporation doctrine, Judge W. Brevard Hand concluded that the Fourteenth Amendment did not incorporate the Establishment Clause for application against the states, and that Alabama therefore was free to ignore the Establishment Clause altogether. The court of appeals reversed, invalidating both the 1981 and the 1982 statutes, and the Supreme Court affirmed this ruling.
In accepting the case for review, the Supreme Court unanimously and summarily affirmed the court of appeals’ invalidation of the 1982 statute authorizing spoken prayer. When the Court later issued its decision on the 1981 statute, moreover, Justice John Paul Stevens, speaking for the Court, chastised District Judge Hand for refusing to honor the Court’s incorporation decisions. Justice Stevens did not meaningfully answer Judge Hand’s historical arguments concerning the original understanding of the Fourteenth Amendment, but he did resoundingly reaffirm the Court’s incorporation doctrine. Even Justice William H. Rehnquist, in his dissenting opinion, accepted the incorporation issue as settled.
Unlike on the issues of incorporation and spoken prayer, the Court was deeply divided on the moment of silence issue. It invalidated Alabama’s 1981 statute on a vote of six to three, but the justices’ various opinions suggested that other moment of silence statutes were likely to survive constitutional scrutiny. Writing for a majority of five, Justice Stevens found that the Alabama statute’s authorization of a moment of silence ‘‘for meditation or voluntary prayer’’ was ‘‘entirely motivated by a purpose to advance religion.’’ As such, it violated the secular purpose requirement of the establishment clause, as set forth in the oft-cited constitutional test of Lemon v. Kurtzman (1971). Justice Stevens focused especially on the language and the sequence of the three enactments in Alabama. Given the 1978 law authorizing silent ‘‘meditation,’’ Stevens argued that the 1981 statute was largely superfluous except for its ‘‘voluntary prayer’’ language. As a result, he concluded that the legislature had acted in 1981 with the constitutionally impermissible purpose of endorsing and promoting religion. Justice Stevens’s conclusion also was supported by candid statements from the legislative sponsor of the 1981 law and by the fact that the Alabama legislature went on in 1982 to authorize a prescribed spoken prayer that was clearly unconstitutional.
In a separate opinion, Justice Sandra Day O’Connor concurred in the Court’s judgment. Like Justice Stevens, she concluded that the Alabama law’s peculiar legislative history rendered it infirm, but she emphasized that other moment of silence statutes would stand on a different footing. Justice Lewis F. Powell, Jr., who had joined the majority opinion, also submitted a concurrence in which he agreed that many moment of silence laws might well be constitutional. Along with Justice Rehnquist, Chief Justice Warren E. Burger and Justice Byron R. White each submitted a separate dissent.
The various opinions in Wallace indicate that the justices would have upheld many moment of silence laws. Justice Stevens’s majority opinion itself suggested that a law not mentioning prayer would be constitutionally permissible. The five justices who wrote separate opinions, moreover, apparently would have approved many laws that do mention prayer. The three dissenters, of course, would have upheld even the Alabama law. Justices O’Connor and Powell would not, but they obviously regarded the Alabama legislative history as highly unusual. Absent such stark evidence of an exclusively religious motivation, Justice O’Connor clearly would have upheld a law explicitly stating that the period of silence could be used for prayer as well as meditation or reflection, and Justice Powell probably would have joined her.
Although this issue has not returned to the Supreme Court, lower courts have read Wallace to permit moment of silence statutes as long as their legislative histories do not suggest the improper purpose of promoting or endorsing religion. In Bown v. Gwinnett (1997) County School District, for example, the Eleventh Circuit approved a Georgia statute requiring ‘‘a brief period of quiet reflection,’’ and in Brown v. Gilmore (2001), the Fourth Circuit upheld a Virginia statute requiring a ‘‘minute of silence’’ for students to ‘‘meditate, pray, or engage in any other silent activity.’’
In his lengthy dissenting opinion in Wallace, Justice Rehnquist argued that the Supreme Court was wrong not only in rejecting the Alabama law, but also in its general approach to the Establishment Clause. Although he accepted incorporation, Rehnquist challenged the Court’s doctrine by focusing on the original understanding of the First Amendment. He claimed that properly interpreted, the First Amendment permits the government to favor religion as long as it avoids discrimination among competing religious sects. On this view, there is no need for subtle distinctions concerning the purpose or form of moment of silence laws, for the government is perfectly free to ‘‘characterize prayer as a favored practice.’’
DANIEL O. CONKLE
References and Further Reading
Cases and Statutes Cited
See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment Clause (I): History, Background, Framing; Establishment of Religion and Free Exercise Clauses