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2nd DRAFT

To: The Chief Justice

Justice Brennan

Justice White

Justice Marshall

Justice Blackmun

Justice Rehnquist

Justice Stevens

Justice O'Connor

From: Justice Powell

Circulated: _________ _

Recirculated: _________ _

SUPREME COURT OF THE UNITED STATES

Nos. 83-812 AND 83-

GEORGE C. WALLACE, GOVERNOR OF THE STATE

OF ALABAMA, ET AL., APPELLANTS

83-812 v.

ISHMAEL JAFFREE ET AL.

DOUGLAS T. SMITH, ET AL., APPELLANTS

83-929 v.

ISHMAEL JAFFREE ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[May-, 1985]

JUSTICE POWELL, concurring.

I concur in the Court's opinion and judgment that Ala.

Code § 16-1-20.1 violates the Establishment Clause of the

First Amendment. My concurrence is prompted by Ala-

bama's persistence in attempting to institute state-sponsored

prayer in the public schools by enacting three successive stat-

utes. 1 I agree fully with JUSTICE O'CONNOR's assertion that

some moment-of-silence statutes may be constitutional, 2 a

(^1) The three statutes are Ala. Code § 16-1-20 (Supp. 1984) (moment of silent meditation); Ala. Code § 16-1-20.1 (Supp. 1984) (moment of silence for meditation or prayer); and Ala. Code § 16-1-20.2 (Supp. 1984) (teachers authorized to lead students in vocal prayer). These statutes were enacted over a span of four years. There is some question whether § 16-1-20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals' holding that § 16-1-20.2 is invalid. Wallace v. Jaffree,

• U. S.-(1984). Thus, our opinions today address only the validity of§ 16-1-20.1. See ante, at 3. (^2) JUSTICE O'CONNOR is correct in stating that moment-of-silence stat- utes cannot be treated in the same manner as those providing for vocal prayer:

83-812 & 83-929-CONCUR

WALLACE v. JAFFREE 3

Lemon v. Kurtzman, 403 U. S. 602 (1972), identifies stand-

ards 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, supra, have we addressed

an Establishment Clause issue without resort to its three-

pronged test. See Marsh v. Chambers, 463 U. S. 783

(1983). 4 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. 5 The first inquiry under Lemon is whether the challenged statute has a "secular legislative purpose." Lemon v. Kurtz-

man, supra, at 612 (1971). As JUSTICE O'CONNOR recog-

nizes, 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 9 (O'CoN-

the Court today in Grand Rapids School Dist. v. Ball, -- U. S. -- (1985), and Aguilar v. Felton, -- U. S. -- (1985), expressly follows Lemon and applies its test. (^4) In Marsh v. Chambers, 463 U. S. 783 (1983), we held that the Ne- braska Legislature's practice of opening each day's session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. Our holding was based upon the historical accept- ance of the practice, that had become "part of the fabric of our society." Id., at--. (^5) Lemon v. Kurtzman, 403 U. S. 602 (1972), was a carefully considered opinion of the Chief Justice, in which he was joined by six other Justices. Lemon's three-pronged test has been repeatedly followed. In Comm. of Public Education v. Nyquist, 413 U. S. 756 (1974), for example, the Court applied the "now well defined three part test" of Lemon. Id., at--. In Lynch v. Donnelley, --U. S. -- (1984), we said that the Court is not "confined to any single test or criterion in this sensitive area." I d., at --. The decision in Lynch, like that in Marsh v. Chambers, 463 U. S. 783 (1983), was based primarily on the long historical practice of including religious symbols in the celebration of Christmas. Nevertheless, the Court, without any criticism of Lemon, applied its three-pronged test to the facts of that case. It focused on the "question whether there is a secu- lar purpose for [the] display of the creche." !d., at--.

83-812 & 83-929-CONCUR

4 WALLACE v. JAFFREE

NOR, J., concurring in the 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. 6 Lynch v. Donnelley, --

U. S. --, -- n. 6. 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 ex- emption for religious organizations upheld); Everson v. Bd. 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 Ala- bama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code § 16-1-20.1, freely acknowledged that the purpose of this statute was "to return voluntary prayer" to the public schools. See ante, at 18, n. 43. I agree with JusTICE O'CONNOR that a single legislator's statement, particularly if made following enactment, is not necessarily sufficient to es- tablish purpose. See post, at 11 (O'CONNOR, J., concurring in the judgment). But, as noted in the Court's opinion, the religious purpose of § 16-1-20.1 is manifested in other evi- dence, including the sequence and history of the three Ala- bama statutes. See ante, at 19. I also consider it of critical importance that neither the Dis- trict Court nor the Court of Appeals found a secular purpose, while both agreed that the purpose was to advance religion.

(^6) The Court's opinion recognizes that "a statute motivated in part by a religious purpose may satisfy the first criterion." Ante, at 17. The Court simply holds that "a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Ibid. (emphasis added).

83-812 & 83-929-CONCUR

6 WALLACE^ v.^ JAFFREE

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 in- hibi[t] religion." 9 See Board of Education v. Allen, 392 U. S. 236, 243 (1968). Nor would such a statute "foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, supra, at 612-613, quoting Walz v. Tax Com- missioner, 397 U. S. 664, 674 (1970). I join the opinion and judgment of the Court.

(^9) If it were necessary to reach the "effects" prong of Lemon, we would be concerned primarily with the effect on the minds and feelings of imma- ture pupils. As JUSTICE O'CONNOR notes, during "a moment of silence a student who objects to prayer [even where prayer may be the purpose] is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others." Post, at 7 (O'CONNOR, J., concurring in the judg- ment). Given the types of subjects youthful minds are primarily con- cerned with, it is unlikely that many children would use a simple "moment of silence" as a time for religious prayer. There are too many other sub- jects on the mind of the typical child. Yet there also is the likelihood that some children, raised in strongly religious families, properly would use the moment to reflect on the religion of his or her choice.

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05/16 To:^ The Chief Justice

- 2nd :9RAFT

SUPREME COURT OF THE UNITED STATES

Nos. 83-812 AND 83-

GEORGE C. WALLACE, GOVERNOR OF THE STATE

' OF ALABAMA, ET AL., APPELLANTS

83-812 (^) v.

ISHMAEL JAFFREE ET AL.

DOUGLAS T. SMITH, ET AL., APPELLANTS

83-929 v.

ISHMAEL JAFFREE ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[May-, 1985]

JUSTICE POWELL, concurring.

I concur in the Court's opinion and judgment that Ala.

Code § 16-1-20.1 violates the Establishment Clause of the

First Amendment. My concurrence is prompted by Ala-

bama's persistence in attempting to institute state-sponsored

prayer in the public schools by enacting three successive stat-

utes. 1 I agree fully with JusTICE O'CONNOR's assertion that

some moment-of-silence statutes may be constitutional, 2 a

'The three statutes are Ala. Code § 16-1-20 (Supp. 1984) (moment of silent meditation); Ala. Code § 16-1-20.1 (Supp. 1984) (moment of silence for meditation or prayer); and Ala. Code § 16-1-20.2 (Supp. 1984) (teachers authorized to lead students in vocal prayer). These statutes were enacted over a span of four years. There is some question whether § 16-1-20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals' holding that§ 16-1-20.2 is invalid. Wallace v. Jaffree,

• U. S.- (1984). Thus, our opinions today address only the validity of§ 16-1-20.1. See ante, at 3. (^2) JUSTICE O'CONNOR is correct in stating that moment-of-silence stat- utes cannot be treated in the same manner as those providing for vocal prayer:

1

83-812 & 83-929---CONCUR

WALLACE v. JAFFREE 3

Lemon v. Kurtzman, 403 U. S. 602 (1972), identifies stand-

ards 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, supra, have we addressed

an Establishment Clause issue without resort to its three-

pronged test. See Marsh v. Chambers, 463 U. S. 783

(1983). 4 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. 5

The first inquiry under Lemon is whether the challenged

statute has a "secular legislative purpose." Lemon v. Kurtz-

man, supra, at 612 (1971). As JUSTICE O'CONNOR recog-

nizes, this secular purpose must be "sincere"; a law will not pass constitutional muster if the secular purpose e ulated by the legislature is merely a "sham." Post, at ~A (O'CON-

the-Caw-t today in th6Jnfl R9.pid:s School Dist. "'· Ba,U, U. 8. ~' (lQga), ana Aguil6ir v. _,7i'elten, U. 8. (lQ~,.....e xpreaal;=fe ~ T.eman and applies its tes ~ •In Marsh v. Chambers, 463 U.S. 783 (1983), we held that the Ne- braska Legislature's practice of opening each day's session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. Our holding was based upon the historical accept- ance of the practice, that had become "part of the fabric of our society." ld., at--.

• Lemon v. Kurtzman, 403 U. S. 602 (1972), was a carefully considered opinion of the Chief Justice, in which he was joined by six other Justices. Lemon's three-pronged test has been repeatedly followed. In Comm. of Public Education v. Nyquist, 413 U. S. 756 (1974), for example, the Court applied the "now well defined three part test" of Lemon. ld., at--. In Lynch v. Donnelley, --U. S. -- (1984), we said that the Court is not "confined to any single test or criterion in this sensitive area." I d., at --. The decision in Lynch, like that in Marsh v. Chambers, 463 U. S. 783 (1983), was based primarily on the long historical practice of including religious symbols in the celebration of Christmas. Nevertheless, the Court, without any criticism of Lemon, applied its three-pronged test to the facts of that case. It focused on the "question whether there is a secu- lar purpose for [the] display of the creche." ld., at--.

83-812 & 83-929-CONCUR

4 WALLACE v. JAFFREE

NOR, J., concurring in the 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. 6 Lynch v. Donnelley, -- U.S.--,-- n. 6. 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 ex- emption for religious organizations upheld); Everson v. Bd. 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 Ala- bama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code § 16-1-20.1, freely acknowledged that the purpose of this statute was "to return voluntary prayer" to the public schools. See ante, at 18, n. 43. I agree with JUSTICE O'CONNOR that a single legislator's statement, particularly if made following enactment, is not necessarily sufficient to es- tablish purpose. See post, at 11 (O'CONNOR, J., concurring in the judgment). But, as noted in the Court's opinion, the religious purpose of § 16-1-20.1 is manifested in other evi- dence, including the sequence and history of the three Ala- bama statutes. See ante, at 19. I also consider it of critical importance that neither the Dis- trict Court nor the Court of Appeals found a secular purpose, while both agreed that the purpose was to advance religion.

e The Court's opinion recognizes that "a statute motivated in part by a t religious purpose may satisfy the first criterion." Ante, at 17. The Court simply holds that "a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Ibid. (emphasis added).

......

83-812 & 83-929-CONCUR

6 WALLACE v. JAFFREE

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 in- hibi[t] religion." 9 See Board of Education v. Allen, 392 U. S. 236, 243 (1968). Nor would such a statute "foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, supra, at 612-613, quoting Walz v. Tax Com- missioner, 397 U. S. 664, 674 (1970). I join the opinion and judgment of the Court.

(^9) If it were necessary to reach the "effects" prong of Lemon, we would be concerned primarily with the effect on the minds and feelings of imma- ture pupils. As JUSTICE O'CONNOR notes, during "a moment of silence a student who objects to prayer [even where prayer may be the purpose] is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others." Post, at 7 (O'CONNOR, J., concurring in the judg- ment). Given the types of subjects youthful minds are primarily con- cerned with, it is unlikely that many children would use a simple "moment of silence" as a time for religious prayer. There are too many other sub- jects on the mind of the typical child. Yet there also is the likelihood that some children, raised in strongly religious families, properly would use the moment to reflect on the religion of his or her choice.

2nd DRAFT

To : The Chief Justice

Justice Brennan

Justice White

Justice Marshall

Justice Blackmun

Justice Rehnquist

Justice Stevens

Justice O'Connor

From: Justice Powell

Circulated: ______ __ _ _

Recirculated: _::::~:...:.'(f=-----= 1 ~ 7 :... 85 =:-=-=-- - --

SUPREME COURT OF mE UNITED STATES

Nos. 83-812 AND 83-

GEORGE C. WALLACE , GOVERNOR OF THE STATE

OF ALABAMA, ET AL., APPELLANTS

83-812 v.

ISHMAEL JAFFREE ET AL.

DOUGLAS T. SMITH, ET AL., APPELLANTS

83-929 v.

ISHMAEL JAFFREE ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[May -, 1985]

JUSTICE POWELL, concun-ing.

I concur in the Court's opinion and judgment that Ala.

Code § 16-1-20.1 violates the Establishment Clause of the

First Amendment. My concun-ence is prompted by Ala-

bama's persistence in attempting to institute state-sponsored

prayer in the public schools by enacting three successive stat-

utes.1 I agree fully with JUSTICE O'CONNOR's assertion that

some moment-of-silence statutes may be constitutional, 2 a

(^1) The three statutes are Ala. Code § 16-1-20 (Supp. 1984) (moment of silent meditation); Ala. Code § 16-1-20.1 (Supp. 1984) (moment of silence for meditation or prayer); and Ala. Code § 16-1-20.2 (Supp. 1984) (teachers authorized to lead students in vocal prayer). These statutes were enacted over a span of four years. There is some question whether § 16-1-20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals' holding that§ 16-1-20.2 is invalid. Wallace v. Jaffree,

• U. S. - (1984). Thus, our opinions today address only the validity of§ 16-1-20.1. See ante, at 3. (^2) JUSTICE O'CONNOR is correct in stating that moment-of-silence stat- utes cannot be treated in the same manner as those providing for vocal prayer:

83-812 & 83-929-CONCUR

WALLACE v. JAFFREE 3

Lemon v. Kurtzman, 403 U. S. 602 (1972), identifies stand- ards 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, supra, have we addressed an Establishment Clause issue without resort to its three-

·pronged test. See Marsh v. Chambers, 463 U. S. 783

(1983). 4 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. 5 The first inquiry under Lemon is whether the challenged statute has a "secular legislative purpose." Lemon v. Kurtz- man, supra, at 612 (1971). As JUSTICE O'CONNOR recog- nizes, 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 9 (O'CoN-

the Court today in Grand Rapids School Dist. v. Ball, -- U. S. -- (1985), and Aguilar v. Felton, -- U. S. -- (1985), expressly follows Lemon and applies its test. 'In Marsh v. Chambers, 463 U.S. 783 (1983), we held that the Ne- braska Legislature's practice of opening each day's session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. Our holding was based upon the historical accept- ance of the practice, that had become "part of the fabric of our society." Id., at--. (^5) Lemon v. Kurtzman, 403 U. S. 602 (1972), was a carefully considered opinion of the Chief Justice, in which he was joined by six other Justices. Lemon's three-pronged test has been repeatedly followed. In Comm. of Public Education v. Nyquist, 413 U. S. 756 (1974), for example, the Court applied the "now well defined three part test" of Lemon. Id., at--. In Lynch v. Donnelley, --U. S. -- (1984), we said that the Court is not "confined to any single test or criterion in this sensitive area." !d ., at --. The decision in Lynch, like that in Marsh v. Chambers, 463 U. S. 783 (1983), was based primarily on the long historical practice of including religious symbols in the celebration of Christmas. Nevertheless, the Court, without any criticism of Lemon, applied its three-pronged test to the facts of that case. It focused on the "question whether there is a secu- lar purpose for [the] display of the creche." !d., at--.

83-812 & 83-929--CONCUR

4 WALLACE v. JAFFREE

NOR, J., concurring in the 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. 6 Lynch v. Donnelley, --

U. S. --, -- n. 6. 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 ex-

emption for religious organizations upheld); Everson v. Bd. 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 Ala- bama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code § 16-1-20.1, freely acknowledged that the purpose of this statute was "to return voluntary prayer" to the public schools. See ante, at 18, n. 43. I agree with JUSTICE O'CONNOR that a single legislator's statement, particularly if made following enactment, is not necessarily sufficient to es- tablish purpose. See post, at 11 (O'CONNOR, J., concurring in the judgment). But, as noted in the Court's opinion, the religious purpose of § 16-1-20.1 is manifested in other evi- dence, including the sequence and history of the three Ala- bama statutes. See ante, at 19. I also consider it of critical importance that neither the Dis- trict Court nor the Court of Appeals found a secular purpose, while both agreed that the purpose was to advance religion.

8 The Court's opinion recognizes that "a statute motivated in part by a l

religious purpose may satisfy the first criterion." Ante, at 17. The Court simply holds that "a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Ibid. (emphasis added).

83-812 & 83-929-CONCUR

6 WALLACE v. JAFFREE

by our precedents to hold that the statute fails the first prong of the Lemon test and therefore violates the Establishq~ent 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 in- hibi[t] religion." 9 See Board of Education v. Allen, 392 U. S. 236, 243 (1968). Nor would such a statute "foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, supra, at 612-613, quoting Walz v. Tax Com- missioner, 397 U. S. 664, 674 (1970). I join the opinion and judgment of the Court.

(^9) If it were necessary to reach the "effects" prong of Lemon, we would be concerned primarily with the effect on the minds and feelings of imma- ture pupils. As JusTICE O'CONNOR notes, during "a moment of silence a student who objects to prayer [even where prayer may be the purpose] is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others." Post, at 7 (O'CONNOR, J., concurring in the judg- ment). Given the types of subjects youthful minds are primarily con- cerned with, it is unlikely that many children would use a simple "moment of silence" as a time for religious prayer. There are too many other sub- jects on the mind of the typical child. Yet there also is the likelihood that some children, raised in strongly religious families, properly would use the moment to reflect on the religion of his or her choice.

!o: The Chi~t Justice Justice Brennan Justice White Justice Marshall Justi.ce Blackmun Juctice Rehnquiat Justice Stevens Judtice o•connor

From: Justice Powell

MAY 31 'sss _ Circul~ted.~~~----------

Nos. 83-812 AND 83-

GEORGE C. WALLACE, GOVERNOR OF THE STATE

OF ALABAMA, ETAL., APPELLANTS

83-812 v.

ISHMAEL J AFFREE ET AL.

DOUGLAS T. SMITH, ET AL., APPELLANTS

83-929 v.

ISHMAEL JAFFREE ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[June 4, 1985]

JUSTICE POWELL, concurring.

I concur in the Court's opinion and judgment that Ala.

Code § 16-1-20.1 violates the Establishment Clause of the

First Amendment. My concurrence is prompted by Ala-

bama's persistence in attempting to institute state-sponsored

prayer in the public schools by enacting three successive stat-

utes. 1 I agree fully with JusTICE O'CONNOR's assertion that

some moment-of-silence statutes may be constitutional, 2 a

'The three statutes are Ala. Code § 16-1-20 (Supp. 1984) (moment of silent meditation); Ala. Code § 16-1-20.1 (Supp. 1984) (moment of silence for meditation or prayer); and Ala. Code § 16-1-20.2 (Supp. 1984) (teachers authorized to lead students in vocal prayer). These statutes were enacted over a span of four years. There is some question whether § 16-1-20 was repealed by implication. The Court already has summarily affirmed the Court of Appeals' holding that§ 16-1-20.2 is invalid. Wallace v. Jaffree,

• U. S. - (1984). Thus, our opinions today address only the validity of§ 16-1-20.1. See ante, at 3. (^2) JUSTICE O'CONNOR is correct in stating that moment-of-silence stat- utes cannot be treated in the same manner as those providing for vocal prayer: