APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 62. O'connor, J., filed an opinion concurring in the judgment, post, p. 67. Burger, C. J., post, p. 84, White, J., post, p. 90, and Rehnquist, J., post, p. 91, filed dissenting opinions.
JUSTICE STEVENS delivered the opinion of the Court.
At an early stage of this litigation, the constitutionality of three Alabama statutes was questioned: (1) § 16-1-20, enacted in 1978, which authorized a 1-minute period of silence in all public schools "for meditation";*fn1 (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence "for meditation or voluntary prayer";*fn2 and (3) § 16-1-20.2, enacted in 1982, which authorized teachers to lead "willing students" in a prescribed prayer to "Almighty God . . . the Creator and Supreme Judge of the world."*fn3
At the preliminary-injunction stage of this case, the District Court distinguished § 16-1-20 from the other two statutes. It then held that there was "nothing wrong" with § 16-1-20,*fn4 but that §§ 16-1-20.1 and 16-1-20.2 were both invalid because the sole purpose of both was "an effort on the part of the State of Alabama to encourage a religious activity."*fn5 After the trial on the merits, the District Court did not change its interpretation of these two statutes, but held that they were constitutional because, in its opinion, Alabama has the power to establish a state religion if it chooses to do so.*fn6
The Court of Appeals agreed with the District Court's initial interpretation of the purpose of both § 16-1-20.1 and § 16-1-20.2, and held them both unconstitutional.*fn7 We have already affirmed the Court of Appeals' holding with respect to § 16-1-20.2.*fn8 Moreover, appellees have not questioned the holding that § 16-1-20 is valid.*fn9 Thus, the narrow question for decision is whether § 16-1-20.1, which authorizes a period of silence for "meditation or voluntary prayer," is a
law respecting the establishment of religion within the meaning of the First Amendment.*fn10
Appellee Ishmael Jaffree is a resident of Mobile County, Alabama. On May 28, 1982, he filed a complaint on behalf of three of his minor children; two of them were second-grade students and the third was then in kindergarten. The complaint named members of the Mobile County School Board, various school officials, and the minor plaintiffs' three teachers as defendants.*fn11 The complaint alleged that the appellees brought the action "seeking principally a declaratory judgment and an injunction restraining the Defendants and each of them from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile County Public Schools in violation of the First Amendment as made applicable to states by the Fourteenth Amendment to the United States Constitution."*fn12 The complaint further alleged that two of the children had been subjected to various acts of religious indoctrination "from the beginning of the school year in September, 1981";*fn13 that the defendant teachers had "on a daily basis" led their classes in saying certain prayers in unison;*fn14 that the minor children were exposed to ostracism from their peer group class members if they did not participate;*fn15 and that Ishmael Jaffree had repeatedly but unsuccessfully requested that the devotional services be stopped. The original complaint made no reference to any Alabama statute.
On June 4, 1982, appellees filed an amended complaint seeking class certification,*fn16 and on June 30, 1982, they filed a second amended complaint naming the Governor of Alabama and various state officials as additional defendants. In that amendment the appellees challenged the constitutionality of three Alabama statutes: §§ 16-1-20, 16-1-20.1, and 16-1-20.2.*fn17
On August 2, 1982, the District Court held an evidentiary hearing on appellees' motion for a preliminary injunction. At that hearing, State Senator Donald G. Holmes testified that he was the "prime sponsor" of the bill that was enacted in 1981 as § 16-1-20.1.*fn18 He explained that the bill was an "effort to return voluntary prayer to our public schools . . . it is a beginning and a step in the right direction."*fn19 Apart from the purpose to return voluntary prayer to public school, Senator Holmes unequivocally testified that he had "no other purpose in mind."*fn20 A week after the hearing, the District Court entered a preliminary injunction.*fn21 The court held that appellees were likely to prevail on the merits because the enactment of §§ 16-1-20.1 and 16-1-20.2 did not reflect a clearly secular purpose.*fn22
In November 1982, the District Court held a 4-day trial on the merits. The evidence related primarily to the 1981-1982 academic year -- the year after the enactment of § 16-1-20.1 and prior to the enactment of § 16-1-20.2. The District Court found that during that academic year each of the minor plaintiffs' teachers had led classes in prayer activities, even after being informed of appellees' objections to these activities.*fn23
In its lengthy conclusions of law, the District Court reviewed a number of opinions of this Court interpreting the
Establishment Clause of the First Amendment, and then embarked on a fresh examination of the question whether the First Amendment imposes any barrier to the establishment of an official religion by the State of Alabama. After reviewing at length what it perceived to be newly discovered historical evidence, the District Court concluded that "the establishment clause of the first amendment to the United States Constitution does not prohibit the state from establishing a religion."*fn24 In a separate opinion, the District Court dismissed appellees' challenge to the three Alabama statutes because of a failure to state any claim for which relief could be granted. The court's dismissal of this challenge was also based on its conclusion that the Establishment Clause did not bar the States from establishing a religion.*fn25
The Court of Appeals consolidated the two cases; not surprisingly, it reversed. The Court of Appeals noted that this Court had considered and had rejected the historical arguments
that the District Court found persuasive, and that the District Court had misapplied the doctrine of stare decisis.*fn26 The Court of Appeals then held that the teachers' religious activities violated the Establishment Clause of the First Amendment.*fn27 With respect to § 16-1-20.1 and § 16-1-20.2, the Court of Appeals stated that "both statutes advance and encourage religious activities."*fn28 The Court of Appeals then quoted with approval the District Court's finding that § 16-1-20.1, and § 16-1-20.2, were efforts "'to encourage a religious activity. Even though these statutes are permissive in form, it is nevertheless state involvement respecting an establishment of religion.'"*fn29 Thus, the Court of Appeals concluded that both statutes were "specifically the type which the Supreme Court addressed in [ Engel v. Vitale, 370 U.S. 421 (1962)]."*fn30
A suggestion for rehearing en banc was denied over the dissent of four judges who expressed the opinion that the full court should reconsider the panel decision insofar as it held § 16-1-20.1 unconstitutional.*fn31 When this Court noted probable jurisdiction, it limited argument to the question that those four judges thought worthy of reconsideration. The judgment of the Court of Appeals with respect to the other issues presented by the appeals was affirmed. Wallace v. Jaffree, 466 U.S. 924 (1984).
Our unanimous affirmance of the Court of Appeals' judgment concerning § 16-1-20.2 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.*fn32 Until the Fourteenth Amendment was added to the Constitution, the First Amendment's restraints on the exercise of federal power simply did not apply to the States.*fn33 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' power. This Court has confirmed and endorsed this elementary proposition of law time and time again.*fn34
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 Fourteenth 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 Fourteenth 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.*fn35 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.' Id., at 637.
"The Court in Barnette, supra, 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.' 319 U.S., at 636. 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 one 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 from all official control.' Id., at 642." Wooley v. Maynard, 430 U.S. 705, 714-715 (1977).
Just as the right to speak and the right to refrain from speaking are complementary 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 Islam or Judaism.*fn36 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.*fn37 This conclusion derives support not only 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 voluntary choice by the faithful,*fn38
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.*fn39
As Justice Jackson eloquently stated in West Virginia 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.
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, 403 U.S. 602, 612-613 (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 Comm'n, 397 U.S. 664, 674 (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.*fn40 For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, see, e. g., Abington School District v. Schempp, 374 U.S. 203, 296-303 (1963) (BRENNAN, J., concurring), the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.*fn41
In applying the purpose test, it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion."*fn42 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 § 16-1-20.1 was not motivated by any clearly secular purpose -- indeed, the statute had no secular purpose.
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.*fn43 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."*fn44 The State did not present evidence of any secular purpose.*fn45
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, non-secular 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.
There are only three textual differences between § 16-1-20.1 and § 16-1-20: (1) the earlier statute applies only to grades one through six, whereas § 16-1-20.1 applies to all grades; (2) the earlier statute uses the word "shall" whereas § 16-1-20.1 uses the word "may"; (3) the earlier statute refers
only to "meditation" whereas § 16-1-20.1 refers to "meditation or voluntary prayer." The first difference is of no relevance in this litigation because the minor appellees were in kindergarten or second grade during the 1981-1982 academic year. The second difference would also have no impact on this litigation because the mandatory language of § 16-1-20 continued to apply to grades one through six.*fn46 Thus, the only significant textual difference is the addition of the words "or voluntary prayer."
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 schoolday. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation.*fn47 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 statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act.*fn48
We must, therefore, conclude that the Alabama Legislature intended to change existing law*fn49 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' 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 schoolday. 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.*fn50
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.*fn51 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."*fn52 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,"*fn53 we conclude that § 16-1-20.1 violates the First Amendment.
The judgment of the Court of Appeals is affirmed.
JUSTICE POWELL, concurring.
I concur in the Court's opinion and judgment that Ala. Code § 16-1-20.1 (Supp. 1984) violates the Establishment Clause of the First Amendment. My concurrence is prompted by Alabama's persistence in attempting to institute state-sponsored prayer in the public schools by enacting three successive statutes.*fn1a I agree fully with JUSTICE O'CONNOR's assertion that some moment-of-silence statutes may be constitutional,*fn2a a suggestion set forth in the Court's opinion as well. Ante, at 59.
I write separately to express additional views and to respond to criticism of the three-pronged Lemon test.*fn3a Lemon v. Kurtzman, 403 U.S. 602 (1971), identifies standards that have proved 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, supra, have we addressed an Establishment Clause issue without resort to its three-pronged test. See Marsh v. Chambers, 463 U.S. 783 (1983).*fn4a Lemon, supra, 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.*fn5a
The first inquiry under Lemon is whether the challenged statute has a "secular legislative purpose." Lemon v. Kurtzman, supra, at 612. As JUSTICE O'CONNOR recognizes, this secular purpose must be "sincere"; a law will not pass constitutional muster if the secular purpose articulated by the legislature is merely a "sham." Post, at 75 (concurring in judgment). In Stone v. Graham, 449 U.S. 39 (1980) (per curiam), for example, we held that a statute requiring the posting of the Ten Commandments in public schools violated the Establishment Clause, even though the Kentucky Legislature asserted that its goal was educational. We have not interpreted the first prong of Lemon, supra, however, as requiring that a statute have "exclusively secular" objectives.*fn6a Lynch v. Donnelly, 465 U.S. 668, 681, n. 6 (1984). If such a requirement existed, much conduct and legislation approved by this Court in the past would have been invalidated. See, e. g., Walz v. Tax Comm'n, 397 U.S. 664 (1970) (New York's property tax exemption for religious organizations upheld); Everson v. Board of Education, 330 U.S. 1 (1947) (holding that a township may reimburse parents for the cost of transporting their children to parochial schools).
The record before us, however, makes clear that Alabama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code § 16-1-20.1 (Supp. 1984), freely acknowledged that the purpose of this statute was "to return voluntary prayer" to the public schools. See ante, at 57, n. 43. I agree with JUSTICE O'CONNOR that a single legislator's statement, particularly if made following enactment, is not necessarily sufficient to establish purpose. See post, at 77 (concurring in judgment). But, as noted in the Court's opinion, the religious purpose of § 16-1-20.1 is manifested in other evidence, including the sequence and history of the three Alabama statutes. See ante, at 58-60.
I also consider it of critical importance that neither the District Court nor the Court of Appeals found a secular purpose, while both agreed that the purpose was to advance religion. In its first opinion (enjoining the enforcement of § 16-1-20.1 pending a hearing on the merits), the District Court said that the statute did "not reflect a clearly secular purpose." Jaffree v. James, 544 F.Supp. 727, 732 (SD Ala. 1982). Instead, the District Court found that the enactment of the statute was an "effort on the part of the State of Alabama to encourage a religious activity."*fn7a Ibid. The Court of Appeals likewise applied the Lemon test and found "a lack of secular purpose on the part of the Alabama Legislature."
F.2d 1526, 1535 (CA11 1983). It held that the objective of § 16-1-20.1 was the "advancement of religion." Ibid. When both courts below are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one.
I would vote to uphold the Alabama statute if it also had a clear secular purpose. See Mueller v. Allen, 463 U.S. 388, 394-395 (1983) (the Court is "[reluctant] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute"). 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.*fn8a 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 "[advance] or [inhibit] religion."*fn9a See Board of Education v. Allen, 392 U.S. 236, 243 (1968). Nor would such a statute ...