The Court’s Decision in Wallace v. Jaffree

Following, with the exception of introductory material and short selected passages, are the texts of the majority opinion, two concurring opinions, and three dissents in the U.S. Supreme Court’s decision in Wallace v. Jaffree. The single asterisks in brackets [

• ] denote footnotes that have been omitted; double astrisks [
• ] denote legal citations omitted.

Justice Stevens delivered the opinion of the Court.

...II

Our unanimous affirmance of the Court of Appeals’ judgment concerning 16-1-20.1 [Alabama’s prayer law] makes it unnecessary to comment at length on the district court’s remarkable conclusion that the federal Constitution imposes no obstacle to Alabama’s establishment of a state religion. Before analyzing the precise issue that is presented to us, it is nevertheless appropriate to recall how firmly embedded in our constitutional jurisprudence is the proposition that the several states have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States.

As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual’s freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience.[

• ] Until the 14th Amendment was added to the Constitution, the First Amendment’s restraints on the exercise of federal power simply did not apply to the states.[
• ] But when the Constitution was amended to prohibit any state from depriving any person of liberty without due process of law, that amendment imposed the same substantive limitations on the states’ power to legislate that the First Amendment had always imposed on the Congress’s power. This court has confirmed and endorsed this elementary proposition of law time and time again.[
• ]

Writing for a unanimous Court in Cantwell. v. Connecticut, 310 U.S. 296, 303 (1940), Justice Roberts explained:

”... We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the 14th Amendment. The fundamental concept of liberty embodied in that amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The 14th Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion.”

Cantwell, of course, is but one case in which the Court has identified the individual’s freedom of conscience as the central liberty that unifies the various clauses in the First Amendment. Enlarging on this theme, the Chief Justice recently wrote:

“We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U.S. 624, 633-634 (1943); id., at 645 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.'[

• ]

..."The Court in Barnette was faced with a state statute which required public school students to participate in daily public ceremonies by honoring the flag both with words and traditional salute gestures. In overruling its prior decision in Minersville District v. Gobitis, 310 U.S. 586 (1940), the Court held that ‘a ceremony so touching matters of opinion and political attitude may [not] be imposed upon the individual by official authority under powers committed to any political organization under our Constitution.'[

• ] Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially only of degree. Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life--indeed constantly while his automobile is in public view--to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the state ‘invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve [sic] from all official control.”’ Wooley v. Maynard, 430 U.S. 705, 714-715 (1977).

Just as the right to speak and the right to refrain from speaking are complimentary [sic] components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Mohammedism or Judaism.[

• ] But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.[
• ] This conclusion derives support from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and vol choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among “religions"--to encompass intolerance of the disbeliever and the uncertain. As Justice Jackson eloquently stated in Board of Education v. Barnette, 319 U.S. 624, 642 (1943):

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The state of Alabama, no less than the Congress of the United States, must respect that basic truth.

III

When the Court has been called upon to construe the breadth of the Establishment Clause, it has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman (1971), we wrote:

“Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster ‘an excessive government entanglement with religion.’ Walz [v. Tax Commission (1970)].”

It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose.[

• ] For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion [
• ] the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.[
• ]

In applying the purpose test, it is appropriate to ask “whether government’s actual purpose is to endorse or disapprove of religion.” In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of [Alabama’s prayer law] was not motivated by any clearly secular purpose--indeed, the statute had no secular purpose.

IV

The sponsor of the bill that became 16-1-20.1, Senator Donald Holmes, inserted into the legislative record--apparently without dissent--a statement indicating that the legislation was an “effort to return voluntary prayer” to the public schools.[

• ] Later Senator Holmes confirmed this purpose before the District Court. In response to the question whether he had any purpose for the legislation other than returning voluntary prayer to public schools, he stated, “No, I did not have no other purpose in mind."[
• ] The state did not present evidence of any secular purpose.[
• ]

The unrebutted evidence of legislative intent contained in the legislative record and in the testimony of the sponsor of 16-1-20.1 is confirmed by a consideration of the relationship between this statute and the two other measures that were considered in this case. The District Court found that the 1981 statute and its 1982 sequel had a common, nonsecular purpose. The wholly religious character of the later enactment is plainly evident from its text. When the differences between 16-1-20.1 and its 1978 predecessor, 16-1-20, are examined, it is equally clear that the 1981 statute has the same wholly religious character.

... 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. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation.[

• ] Appellants have not identified any secular purpose that was not fully served by 16-1-20 before the enactment of 16-1-20.1. Thus, only two conclusions are consistent with the text of 16-1-20.1: (1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statue was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act.

We must, therefore, conclude that the Alabama legislature intended to change existing law [

• ] and that it was motivated by the same purpose that the Governor’s answer to the second amended complaint expressly admitted; that the statement inserted in the legislative history revealed; and that Senator Holmes’s testimony frankly described. The legislature enacted 16-1-20.1 despite the existence of 16-1-20 for the sole purpose of expressing the state’s endorsement of prayer activities for one minute at the beginning of each school day. The addition of “or voluntary prayer” indicates that the state intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.[
• ]

The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. For whenever the state itself speaks on a religious subject, one of the questions that we must ask is “whether the government intends to convey a message of endorsement or disapproval of religion.” The well-supported concurrent findings of the District Court and the Court of Appeals--that 16-1-20.1 was intended to convey a message of state approval of prayer activities in the public schools--make it unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words “or voluntary prayer” to the statute. Keeping in mind, as we must, “both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,"[

• ] we concluded that 16-1-20.1 violates the First Amendment.

The judgment of the Court of Appeals is affirmed.

For example, in Prince v. Massachusetts (1944), the Court wrote:

“If by this position appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme. [

• ] All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter’s prime place because they have unity in their human sources and functionings.”

See also Widmar v. Vincent (1981) (stating that religious worship and discussion “are forms of speech and association protected by the First Amendment”).

In his “Memorial Remonstrance Against Religious Assessments, 1785,” James Madison wrote, in part:

“1. Because we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the [Manner of discharging it, can be directed only by reason and] conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only as he believes to be acceptable to him. ... We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.

... “3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” The Complete Madison 299-301 (S. Padover ed. 1953).

See also Engle v. Vitale (1962) (“It is neither sacrile gious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look for religious guidance”).

As the Barnette opinion explained, it is the teaching of history, rather than any appraisal of the quality of a state’s motive, that supports this duty to respect basic freedoms:

“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast-failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” 319 US., at 640-641.

See also Engle v. Vitale (“a union of government and religion tends to destroy government and to degrade religion”).

Lynch v. Donnelly (“The purpose prong of the Lemon test asks whether government’s actual purpose it to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid”).

If the conclusion that the statute had no purpose were tenable, it would remain true that no purpose is not a secular purpose. But such a conclusion is inconsistent with the common-sense presumption that statutes are usually enacted to change existing law. Appellants do not even suggest that the state had no purpose in enacting 16-1-20.1.

As this Court stated in Engel v. Vitale:

“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.”

Moreover, this Court has noted that "[w]hen the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” This comment has special force in the public-school context where attendance is mandatory. Justice Frankfurter acknowledged this reality in McCollum v. Board of Education (1948) (concurring opinion):

“That a child is offered an alternative may reduce the constraint, it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain. The law of imitation operates, and non-conformity is not an outstanding characteristic of children.”

See also Abington School District v. Schempp; cf. Marsh v. Chambers (1983) (distinguishing between adults not susceptible to “religious indoctrination” and children subject to “peer pressure”). Further, this Court has observed:

“That [boards of education] are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Board of Education v. Barnette.

Lynch v. Donnelly (“The purpose prong of the Lemon test requires that a government activity have a secular purpose. ... The proper inquiry under the purpose prong of Lemon ... is whether the government intends to convey a message of endorsement or disapproval of religion”).