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Majority Suggests Support For Laws in Other States

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The U.S. Supreme Court, acting on one of the most controversial cases presented to it in recent years, last week struck down an Alabama law that permitted a daily one-minute period of silence for prayer or meditation in the state's public schools.

The Justices strongly suggested, however, that they might approve a number of similar laws that have been enacted in half of the states in the nation, provided that the laws were not intended to endorse prayer as a preferred activity. Such a determination, the Court's majority indicated, would hinge on reviews of the statutes' legislative histories and the intentions of their sponsors.

The Court's ruling in Wallace v. Jaffree (Case No. 83-812) and Smith v. Jaffree (No. 83-929) was its first on the subject of moment-of-silence laws, which have been enacted in Alabama and 24 other states in response to the Court's landmark decision in 1962 prohibiting organized, spoken prayer in public schools. The Alabama law was declared unconstitutional by a federal appeals court in May 1984, and over the past three years similar laws have been struck down in New Jersey, New Mexico, Tennessee, and West Virginia.

Sole Purpose

In a 6-3 decision, the Court held that the Alabama law ran afoul of the First Amendment's establishment clause because its sole purpose was to promote prayer in public schools.

"Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion," wrote Associate Justice John Paul Stevens in an opinion joined by three other Justices. Associate Justices Lewis F. Powell Jr. and Sandra Day O'Connor agreed with that conclusion in separate concurring opinions.

In a dissent based on a detailed review of the origins of establishment clause, Associate Justice William H. Rehnquist accused the Court's majority of straying from the original meaning of the clause. "It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama legislature from 'endorsing' prayer," he wrote. Associate Justice Byron R. White made similar points in a separate short dissent.

In a third dissenting opinion, Chief Justice Warren E. Burger called the majority opinion "ridiculous," adding that it "manifests not neutrality but hostility toward religion."

Case's History

The lawsuit was filed in 1982 by Ishmael Jaffree, an agnostic who has children in the Mobile public schools, who contested the constitutionality of two state laws.

One of the laws, enacted in 1982, authorized public-school teachers to lead willing students in a vocal prayer suggested by the state. It was found unconstitutional by the U.S. Court of Appeals for the 11th Circuit, a decision left intact by the Justices in April 1984.

The other law, enacted in 1981 and the focus of the Court's decision last week, permitted teachers to announce at the start of the school day a moment of silence "for meditation or voluntary prayer." According to lawyers for the state, it was intended to perfect a 1978 law, the constitutionality of which was never challenged, that provided simply for a moment of silence.

In a controversial 1983 decision, U.S. District Judge W. Brevard Hand upheld the constitutionality of both the 1982 and 1981 laws, holding that the Supreme Court had erred in ruling that the establishment clause prohibited states from preferring one religion over others.The 11th Circuit Court reversed his decision, saying that both laws encouraged religious acts and thus failed the three-part test established by the Court in 1971 in Lemon v. Kurtzman for determining whether a law violates the establishment clause.

Under the test, government action regarding religion is permissible if it has a secular legislative purpose; if its primary effect is one that neither advances nor inhibits religion; and if it does not foster "excessive entanglement" between church and state.

No Secular Purpose

Justice Stevens wrote that the Alabama statute failed the test because the record in the case unambiguously indicated that it "was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose."

"The legislature enacted [the law] for the sole purpose of expressing the state's endorsement of prayer activities for one minute at the beginning of the school day," he wrote.

Justice Stevens rejected arguments offered by state and the Reagan Administration that the passage of the 1981 law—which is identical to the 1978 statute except for the addition of the words "or voluntary prayer"—represented a "permissible accommodation" of students' religious beliefs.

Under the 1978 law, he wrote, "there was no government practice impeding students from praying silently for one minute at the beginning of each school day; 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 First Amendment.

Other Laws Permissible

Justice Stevens indicated in his opinion that not all state moment-of-silence laws would experience the same fate as the Alabama statute. ''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 school day," he wrote.

That point was made more explicitly in concurring opinions by Justices Powell and O'Connor.

Justice Powell said he would have voted to uphold the Alabama law "if it ... had a clear secular purpose."

"[I] note that the effect of a straightforward moment-of-silence statute is unlikely to advance or inhibit religion," he wrote. "Nor would such a statute foster an excessive entanglement with religion."

No 'Serious Threat'

"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," wrote Justiceel5lO'Connor. "It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren."

Justice O'Connor went on to note that, in her opinion, moment-of-silence laws that specify that students may use the period to pray silently do not necessarily represent impermissible state endorsement or encouragement of prayer over other alternatives.

"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," she wrote. "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."

"[T]he moment-of-silence statutes of many states should satisfy the establishment-clause standard we have here applied," she continued. ''The Court holds only that Alabama has intentionally crossed the line between creating a quiet moment during which those 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."

Dissenting Opinions

In his dissent, Chief Justice Burger said he found it "ironic—perhaps even bizarre" that on the same day the decision was handed down, the Court's session opened with an invocation for "Divine protection.''

"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," he wrote. "The Alabama legislature has no more 'endorsed' religion than ... this Court does when it opens each session with an invocation to God."

"The notion that the Alabama3statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous," the Chief Justice continued. "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."

Justice Rehnquist went a step further in his separate dissent, arguing for the rejection of the Court's leading precedents in the area of religion.

Commenting on Thomas Jefferson's often-repeated assertion that the establishment clause mandates "a wall of separation between church and state," Justice Rehnquist wrote: "[U]nfortunately, the establishment clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years."

Relying mainly on the writings of James Madison, transcripts of the debates on the ratification of the Bill of Rights, and subsequent actions by the Congress, Justice Rehnquist argued that the framers of the Constitution never intended the federal government to treat religion on the same footing as atheism or agnosticism. Instead, he maintained, they intended only to prevent the establishment of a national church and to prevent the federal government from granting preference to one denomination over others.

"There is simply no historical foundation for the proposition that the framers intended to build the 'wall of separation,"' he wrote, calling it "a metaphor based on bad history ... [that] has proved useless as a guide to judging. It should be frankly and explicitly abandoned."

"Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor," he wrote.

Justice Rehnquist also called for the abandonment of the three-part test adopted in Lemon, arguing that it represents "a determined effort to craft a workable rule from a historically faulty doctrine."

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