Powell's Concurrence

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... I agree fully with Justice O'Connor's assertion that some moment-of-silence statutes may be constitutional,[

  • ] a suggestion set forth in the Court's opinion as well.[
  • ]

I write separately to express additional views and to respond to criticism of the three-pronged Lemon test. Lemon v. Kurtzman (1972) identifies standards that have proven useful in analyzing case after case both in our decisions and in those of other courts. It is the only coherent test a majority of the Court has ever adopted. Only once since our decision in Lemon have we addressed an Establishment Clause issue without resort to its three-pronged test. [

  • ] Lemon has not been overruled or its test modified. Yet, continued criticism of it could encourage other courts to feel free to decide Establishment Clause cases on an ad hoc basis.[
  • ]

... 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.[
  • ] Under these circumstances, the Court is required by our precedents to hold that the statute fails the first prong of the Lemon test and therefore violates the Establishment Clause.

Although we do not reach the other two prongs of the Lemon test, I note that the "effect" of a straightforward moment-of-silence statute is unlikely to "advanc[e] or inhibi[t] religion."[

  • ] [
  • ] Nor would such a statute "foster 'an excessive government entanglement with religion."'

Vol. 04, Issue 38

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