O'Connor's Concurrence

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The religion clauses of the First Amendment, coupled with the 14th Amendment's guaranty of ordered liberty, preclude both the nation and the states from making any law respecting an establishment of religion or prohibiting the free exercise thereof. [

  • ] Although a distinct jurisprudence has enveloped each of these clauses, their common purpose is to secure religious liberty. On these principles, the Court has been and remains unanimous.

As this case once again demonstrates, 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." [

  • ] It once appeared that the Court had developed a workable standard by which to identify impermissible government establishments of religion. [
  • ] 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. Despite its initial promise, the Lemon test has proven problematic. The required inquiry into "entanglement" has been modified and questioned, and in one case we have upheld state action against an Establishment Clause challenge without applying the Lemon test at all. [
  • ] The author of Lemon himself apparently questions the test's general applicability. See Lynch v. Donnelly (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.

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 re-examined 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," [

  • ], 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." [
  • ] Last term, I proposed a refinement of the Lemon test with this goal in mind. [
  • ]

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 inunder 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." [

  • ] 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 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. ...

Twenty-five states permit or require public-school teachers to have students observe a moment of silence in their classrooms.[

  • ] A few statutes provide that the moment of silence is for the purpose of meditation alone. [
  • ] Relying on this Court's decisions disapproving vocal prayer and Bible reading in the public schools, [
  • ] the courts that have struck down the moment-of-silence statutes generally conclude that their purpose and effect is to encourage prayer in public schools.

The Engle and Abington decisions are not dispositive on the constitutionality of moment-of-silence laws.

... 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. [

  • ] 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. [

  • ] 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 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.[
  • ] 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. ...

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. ...

The Court does not hold that the Establishment Clause 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. ...

Vol. 04, Issue 38

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