Amicus Curiae Brief — Wallace v. Jaffree

rFIiLe&e

DEC 13 1985

No. 83-812

IDER L. STEVAS

CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

GEORGE C. WALLACE, ET AL., APPELLANTS

v.

ISHMAEL JAFFREE, I. AL.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

REx E. LEE

Solicitor General

Wma. BRADFORD REYNOLDS

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

MICHAEL W. MCCONNELL

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

——_-——————__———____

~~ BEST AVAILABLE COPY

QUESTION PRESENTED

Whether a state statute, which authorizes public

school teachers to allow a brief moment of silence

at the beginning of the school day for the purpose of

“prayer or meditation,” is invalid on its face under

the Establishment Clause.

(I)

eee

TABLE OF CONTENTS

Page

ae ee fF 1

aca enebespennpiuecnnsonnenneinqntenscapaess 2

I IEE A A, 6

SETA ATTA 16

TABLE OF AUTHORITIES

Cases:

Abington School District v. Schempp, 374 U.S.

aa 0 snenpeieanesienndinancaned 4, 7, 9,14

Arlans Dep’t Store, Inc. v. Kentucky, 371 U.S.

a ne SSE TEL ste en 11

Beck v. McElrath, 548 F. Supp. 1161 ...................... 7

Caldor, Inc. v. Thornton, 191 Conn. 336, 464 A.2d

(aC 13

Duffy v. Las Cruces Public Schools, 557 F. Supp.

TD A re anno 7

Engel v. Vitale, 370 U.S. 421 ................---.-20--20---0--++- 4, 6,14

Everson Vv. Board of Education, 330 U.S. 1 ........ 4

Gaines v. Anderson, 421 F. Supp. 337 .................... 7,9,14

Gillette v. United States, 401 U.S. 437 -...............--- 11

Illinois ex rel. McCollum v. Board of Education, 333

EN ES En 4

Lanner Vv. Wimmer, 662 F.2d 1349 -.....................-..--- 13

Lemon v. Kurtzman, 403 U.S. 602 -....................... 2, 12,13

Marsh v. Chambers, No. 82-23 (July 5, 1983) ........ 2,12

May v. Cooperman, No. 83-89 (D.N.J. Oct. 24,

hh Re 7,8,9

McDaniel v. Paty, 435 U.S. 618 ..................-.------------ 11, 13

McGowan v. Maryland, 366 U.S. 420 ~..................... 11

Mueller v. Allen, No. 82-195 (June 29, 1983) -....... 11, 13

O’Hair v. Andrus, 613 F.2d 931 ........................-...---- 13

Opinion of the Justices, 113 N.H. 297, 307 A.2d

EUSA TORE a a nn 7

Quick Bear v. Leupp, 210 U.S. 50 ~....................-..-. 11

Roemer v. Board of Public Works, 426 U.S. 736... 2

Sherbert v. Verner, 374 U.S. 398 -........................... 10

(mI)

|

IV

Cases—Continued: — Page

Sloan v. Lemon, 4183 U.S. 825 ..............--------ees---e00++ 2

Smith v. Smith, 523 F.2d 121, cert. denied, 423

ek. ee eemnetenidaineennieiaaneiananen 13

St. Martin Evangelical Lutheran Church v. South

Dakota, 451 U.S. T72 ........0::-------...--0000-----ececcseesese 2,11

Ti. »mas V. Review Board, 450 U.S. 707 ...............--- 10, 12

Tilton Vv. Richardson, 403 U.S. 672 ................---------- 2

Tinker v. Des Moines Independent Community

School District, 393 U.S. 508 ....................------------ 14

Trans World Airlines, Inc. v. Hardison, 432 U.S.

a al rhitinriaetenneninneetie 2,12

United States v. Lee, 455 U.S. 252 ....................-.------ 2

Walz v. Tax Commission, 397 U.S. 664 ...... 11, 18, 14, 15

Widmar v. Vincent, 454 U.S. 263 .................----------- 11, 12

Wisconsin v. Yoder, 406 U.S. 205 .................2...-.----- 10

Zorach v. Clauson, 343 U.S. 306 ...................... 9, 11, 13, 14

Constitution and statutes:

U.S. Const. :

I, OP iss ceeeistcinntinnnlientieeenniganatilial 1, 4, 9, 10, 15

Establishment Clause ...... 2, 4, 5, 6, 10, 11, 13, 15

Free Exercise Clause ..................22-.-.......-... 2,10

PE ick cisindaissatsntanaddiidicitaiiiptnnianntinniath 1,6

Civil Rights Act of 1964, Title VII, 42 U.S.C. (&

Supp. V) 2000e et seq.:

§ 701(j), 42 U.S.C. 2000e(j) ................----.----.-- 12

§ 703 (a) (1), 42 U.S.C. 2000e-2(a) (1) -.......... 12

Fa ren 2

MN SS: — — — x 2

3) ae S/he 2

BR 2 ae 2

KR 2

FS 3

Ala. Code (Cum. Supp. 1982) :

OS * ia 3, 6, 8

ge 3

Ariz. Rev. Stat. Ann. § 15-522 (Supp. 1983) .......... 6

Ark. Stat. Ann. § 80-1607.1 (repl. 1980) -............... 6

Conn. Gen. Stat. Ann. § 10-16a (West 1981) ........ 6

Vv

Constitution and statutes—Continued :

Fla. Stat. Ann. § 233.062 (West Cum. Supp.

RCS PE SES REEL cee one

Ga. Code Ann. § 20-2-1050 (1982) ..........................

Ill. Rev. Stat. ch. 122, {771 (Cum. Supp. 1983)...

Ind. Code Ann. § 20-10.1-7-11 (Burns Cum. Supp.

cen

Kan. Stat. Ann. § 72.5308a (1980) ..........................

La. Rev. Stat. Ann. § 17:2115 (West 1982) -........

Me. Rev. Stat. Ann. tit. 20-A, § 4805 (1982) -_.......

Md. Educ. Code Ann. § 7-104 (1978) -....................

Mass. Ann. Laws ch. 71, § 1A (Michie/Law. Co-

a scetiensannnntn

Mich. Comp. Laws § 380.1565 (1979) -..................

N.J. Rev. Stat. § 18A:36-4 (Cum. Supp. 1983) ....

N.M. Stat. Ann. § 22-5-4.1 (1981) -........................

N.Y. Educ. Law § 3029-a (McKinney 1981)

N.D. Cent. Code § 15-47-30.1 (1981) —....................

Ohio Rev. Code Ann. § 3313.601 (Page 1980) _......

Pa. Stat. Ann. tit. 24, § 15.1516.1 (Purdon Cum.

i iciennetsntinnes

R.I. Gen. Laws § 16-12-3.1 (repl. 1981)

Tenn. Code Ann. § 49-1922 (Supp. 1982)

Va. Code § 22.1-203 (repl. 1980)

Miscellaneous:

Choper, Religion in the Public Schools: A Pro-

posed Constitutional Standard, 47 Minn. L. Rev.

gE RESERPINE se A rN ET

Comment, Accommodating Religion in the Public

Schools, 59 Neb. L. Rev. 425 (1980)

Se sc cemoesumeniiuinen

P. Freund, The Legal Issue, in Religion in the Pub-

a

Kauper, Prayer, Public Schools and the Supreme

Court, 61 Mich. L. Rev. 1031 (1963) —...00000..

Note, Daily Moments of Silence in Public Schools:

A Constitutional Analysis, 58 N.Y.U.L. Rev.

EE GE Ceo Ce NE ene SE aoe aR

Note, Religion and the Piblic Schools, 20 Vand. L.

Rev. 1078 (1967)

ee eee ee ee

Page

ann

AAMwIAOMH AAAANH

AaAaarnm

VI

Miscellaneous—Continued :

Note, The Unconstitutionality Of State Statutes

Authorizing Moments of Silence in the Public

Schools, 96 Harv. L. Rev. 1874 > _—

Op. Tenn. Att’y Gen. No. 82-153 (1982) ...... oe

Proposed Constitutional Amendments Relating to

School Prayer: Hearings Before the Senate

Comm. on the Judiciary, 98th Cong., 1st Sess.

(19BB) -...-.-.-.2---c-nsc-cenensnseseesnnssscenenenensnsnonsnsassensasecens

S.J. Res. 73, 98th Cong., Ist Sess. (1983) ..........--

L. Tribe, American Constitutional Law (1978) ....

Page

|

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-812

GEORGE C. WALLACE, ET AL., APPELLANTS

Vv.

ISHMAEL JAFFREE, ET AL.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The State of Alabama, like some 22 other states,

has authorized a moment of silence in the public

schools to enable students to engage in silent volun-

tary prayer or meditation. The court below held this

practice unconstitutional under the First Amendment

to the United States Constitution, as applied to the

states through the Fourteenth Amendment. The

United States has a substantial interest in this mat-

ter, which raises the question whether the Constitu-

tion prohibits neutral and noncoercive means of ac-

commodating private religious practices in the public

schools and, by extension, in other public contexts.

Among federal government activities potentially im-

plicated by a prohibition on governmental accommo-

dation of religion are the grant of tax preferences

for religious institutions, the allowance of religious

holidays to federal employees, and the enforcement

(1)

of the religious accommodation requirements of Title

VII of the Civil Rights Act of 1964.

In addition, the United States is authorized to op-

erate schools for military and foreign service depend-

ents under certain circumstances (10 U.S.C. 7204

(Navy); 20 U.S.C. (& Supp. V) 241 (federal prop-

erty); 20 U.S.C. (Supp. V) 926 (Defense Depart-

ment) ; 22 U.S.C. (Supp. V) 2701 (foreign service) )

and schools for Indians (25 U.S.C. 271-304b). The

resolution of this case will bear on Congress’s ability

to allow periods for silent prayer or meditation in

such schools.

The United States has participated as a party or

as amicus curiae in numerous cases arising under

the Establishment and Free Exercise Clauses, most

recently in Marsh v. Chambers, No. 82-23 (July 5,

1983) and Lynch v. Donnelly, No. 82-1256 (argued

Oct. 4, 1983). See also briefs filed by the United

States as amicus curiae in St. Martin Evangelical

Lutheran Church v. South Dakota, 451 U.S. 772

(1981); Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977); Sloan v. Lemon, 413 U.S. 825

(1973) ; Roemer v. Board of Public Works, 426 U.S.

736 (1976); and Lemon v. Kurtzman, 403 U.S. 602

(1971), and briefs filed as a party in United States

v. Lee, 455 U.S. 252 (1982), and Tilton v. Richard-

son, 403 U.S. 672 (1971).

STATEMENT

1. Appellee Ishmael Jaffree, an agnostic, filed this

suit on behalf of three of his children who attend

Mobile County, Alabama public schools, challenging

certain teachers’ practice of conducting prayers with

students during school hours. Jaffree v. Board of

School Commissioners, 554 F. Supp. 1104 (S.D. Ala.

1983) (J.S. App. 1d-55d). After the suit was filed

but before it was decided by the district court, the

state legislature enacted Senate Bill 8, 1982 Ala. Acts

82-735, codified at Ala. Code § 16-1-20.2 (Cum. Supp.

1982), permitting public school teachers and profes-

sors to lead willing students in recitation of a state-

composed prayer at the beginning of any homeroom

or class period.’ Appellee amended his complaint to

challenge the constitutionality of this statute and a

previously-enacted provision, Ala. Code § 16-1-20.1

(Cum. Supp. 1982), which authorizes teachers to per-

mit a minute of silence for meditation or voluntary

prayer at the commencement of the first class pe-

riod.* Appellee joined as defendants the Governor of

Alabama, the state Attorney General, and several

1As enacted, Ala. Code § 16-1-20.2 (Cum. Supp. 1982)

provides that:

From henceforth, any teacher or professor in any pub-

lic education institution within the State of Alabama, rec-

ognizing that the Lord God is one, at the beginning of any

homeroom or any class, may pray, may lead willing stu-

dents in prayer, or may lead the willing students in the

following prayer to God:

Almighty God, You alone are our God. We acknowledge

You as the Creator and Supreme Judge of the world.

May Your justice, Your truth, and Your peace abound

this day in the hearts of our countrymen, in the counsels

of our government, in the sanctity of our homes and in

the classrooms of our schools in the name of our Lord.

Amen.

2 Ala. Code § 16-1-20.1 (Cum. Supp. 1982) prevides that:

At the commencement of the first class of each day in

all grades in all public schools, the teacher in charge of

the room in which each such class is held may announce

that a period of silence not to exceed one minute in dura-

tion shall be observed for meditation or voluntary prayer,

and during any such period no other activities shall be

engaged in.

4

state education officials. Jaffree v. James, 544 F.

Supp. 727 (S.D. Ala. 1982) (J.S. Apr. 56d-61d).

The district court severed appellee’s claim challeng-

ing teacher-initiated prayer from his claim challeng-

ing the state statutes. Based on the court’s view

that “the establishment clause of the first amendment

to the United States Constitution does not bar the

states from establishing a religion” (J.S. App. 59d),

it dismissed the challenge both to. teacher-initiated

prayers (Jaffree v. Board of School Commissioners,

supra) and to the Alabama statutes (Jaffree v.

James, supra) for failure to state a claim upon which

relief could be granted (J.S. App. 53d, 59d). The

court dissolved a preliminary injunction that it had

previously entered barring implementation of the

state statutes (J.S. App. 59d). Justice Powell, as

Circuit Justice, issued an order granting a stay of

the district court’s order and reinstating the injunc-

tion pending final disposition of the appeal (J.S. App.

2e-5e).

2. The court of appeals reversed the dismissai of

both of appellee’s claims and remanded the case for

entry of an order enjoining the implementation of

the statutes and teacher-initiated prayers. Jaffree v.

Wallace, 705 F.2d 1526 (11th Cir. 1983) (J.S. App.

la-20a). The court concluded (J.S. App. 7a-12a)

that the district court’s interpretation of the First

Amendment is contrary to cases decided by this Court,

including Everson v. Board of Education, 330 U.S.

1 (1947) ; Illinois ex rel. McCollum v. Board of Edu-

cation, 333 U.S. 203 (1948); Abington School Dis-

trict v. Schempp, 374 U.S. 203 (1963); and Engel v.

Vitale, 370 U.S. 421, 429-430 (1962).* In one para-

® Because the district court viewed the Establishment Clause

as not applicable to the states (J.S. App. 59d), it did not make

5

graph of its 20-page opinion (J.S. App. 18a), the

court of appeals held the moment of silence statute

unconstitutional because its objective was “the ad-

vancement of religion.” * The court stated: “‘We do

not imply that simpie meditation or silence is barred

from the public schools; we hold that the state can-

not participate in the advancement of religious activ-

ities through any guise, including teacher-led medi-

tation. It is not the activity itself that concerns us;

it is the purpose of the activity.” J.S. App. 18a.

The court of appeals denied a petition for rehear-

ing and rehearing en banc (J.S. App. 1b-2b). Four

judges dissented from the denial of reconsideration

en banc insofar as the decision invalidated Alabama’s

moment of silence statute (id. at 2b-4b). The dissent-

ing judges observed first that the significance of the

decision “transcends one state and one statute,” be-

cause many other states have enacted similar laws

(id. at 2b-3b). Second, the dissenting judges noted

that the constitutionality of observing moments of

silence in the publie schools has not been resolved by

factual findings concerning the purpose or consequences of the

statutes in question, nor did it separately analyze the statutes.

The court of appeals rejected the district court’s interpreta-

tion of the reach of the Establishment Clause (J.S. App. 10a-

lla), but did not remand for separate consideration and fac-

tual findings on the moment of silence issue. Instead, it held

the moment of silence statute facially invalid (id. at 18a).

* The court based this conclusion (J.S. App. 18a) on a pre-

liminary finding by the district court on a motion for a pre-

liminary injunction. The district court, in turn, relied solely

on testimony by a legislator “that his purpose in sponsoring

§ 16-1-20.1 was to return voluntary prayer to the public

schools. He intended to provide children the opportunity of

sharing in their [sic] spiritual heritage of Alabama and of the

country.” J.S. App. 71d. The district court reached no such

finding in connection with its final judgment.

6

this Court, and that other courts have reached con-

flicting decisions (id. at 3b). Finally, the dissenting

judges expressed “some doubt as to the correctness of

~-the-panel opinion” (ibid.), citing extensive scholarly

and judicial authority in support of the constitution-

ality of moment of silence provisions (id. at 3b-4b).

The judges concluded that “[h]owever the en banc

court might resolve the issue, it is important and

sufficiently unsettled to command its attention” (id.

at 4b). |

DISCUSSION

1. In 1962, this Court held that a state statute

permitting the recitation of prayers by teachers in

public schools was impermissible under the Estab-

lishment Clause, as applied to the states by the

Fourteenth Amendment. Engel v. Vitale, 370 U.S.

421 (1962). Since that time, Alabama and some 22

other states have enacted statutes authorizing or

requiring daily moments of silence in the public

schools.’ The constitutionality of these statutes is an

5 In addition to Ala. Code § 16-1-20.1 (Cum. Supp. 1982), see

Ariz. Rev. Stat. Ann. § 15-522 (Supp. 1983) ; Ark. Stat. Ann.

§ 80-1607.1 (repl. 1980) ; Conn. Gen. Stat. Ann. § 10-16a (West

1981) ; Fla. Stat. Ann. § 233.062 (West Cum. Supp. 1983) ; Ga.

Code Ann. § 20-2-1050 (1982) ; Ill. Rev. Stat. ch. 122, § 771

(Cum. Supp. 1983); Ind. Code Ann. § 20-10.1-7-11 (Burns

Cum. Supp. 1983); Kan. Stat. Ann. § 72.5308a (1980) ; La.

Rev. Stat. Ann. § 17:2115 (West 1982); Me. Rev. Stat. Ann.

tit. 20-A, § 4805 (1982) ; Md. Educ. Code Ann. § 7-104 (1978) ;

Mass. Ann. Laws ch. 71, §1A (Michie/Law. Co-op. Cum.

Supp. 1983) ; Mich. Comp. Laws § 380.1565 (1979) ; N.J. Rev.

Stat. § 184 :36-4 (Cum. Supp. 1983) ; N.M. Stat. Ann. § 22-5-

4.1 (1981) ; N.Y. Educ. Law § 3029-a (McKinney 1981) ; N.D.

Cent. Code § 15-47-30.1 (1981) ; Ohio Rev. Code Ann. § 3313.601

(Page 1980) ; Pa. Stat. Ann. tit. 24, § 15.1516.1 (Purdon Cum.

Supp. 1983) ; R.I. Gen. Laws § 16-12-3.1 (repl. 1981) ; Tenn.

Code Ann. § 49-1922 (Supp. 1982); Va. Code § 22.1-203

(repl. 1980).

7

issue of first impression for this Court. Justice Bren-

nan stated in his concurring opinion in Abington

School District v. Schempp, 374 U.S. 203, 281 (1963),

that “the observance of a moment of reverent silence

at the opening of class” might be considered a “non-

religious means” of serving “solely secular purposes

* * * without jeopardizing either the religious liber-

ties of any members of the community or the proper

degree of separation between the spheres of religion

and government.” The federal and state courts to

consider the issue have reached divided conclusions.°

Many prominent scholars and legal authorities have

defended the constitutionality of moment of silence

statutes,’ but not without dissent.*

6 Moment of silence statutes have been upheld or approved

in Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976)

(three-judge court), and Opinion of the Justices, 113 N.H. 297,

301, 307 A.2d 558, 560 (1973). Such statutes have been struck

down in May v. Cooperman, No. 83-89 (D. N.J. Oct. 24, 1983) ;

Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013 (D.

N.M. 1983) ; and Beck v. McElrath, 548 F. Supp. 1161 (M.D.

Tenn. 1982), as well as by the court of appeals below.

7 See, e.g., L. Tribe, American Constitutional Law, § 14-6,

at 829 (1978) ; P. Freund, The Legal Issue, in Religion in the

Public Schools 23 (1965); Choper, Religion in the Public

Schools: A Proposed Constitutional Stancard, 47 Minn. L.

Rev. 329, 371 (1963); Kauper, Prayer, Public Schools and

the Supreme Court, 61 Mich. L. Rev. 1031, 1041 (1963) ;

Comment, Accommodating Religion in the Public Schools, 59

Neb. L. Rev. 425, 450-454 (1980) ; Note, Religion and the

Public Schools, 20 Vand. L. Rev. 1078, 1092-1093 (1967) ;

Op. Tenn. Att’y Gen. No. 82-153 (1982).

8 See, e.g., Note, The Unconstitutionality Of State Statutes

Authorizing Moments of Silence in the Public Schools, 96

Harv. L. Rev. 1874 (19838); Note, Daily Moments of Silence

in Public Schools: A Constitutional Analysis, 58 N.Y.U.L.

8

In an opinion largely devoted to other issues—i.e.,

audible public school prayers conducted by school au-

thorities—the court of appeals held unconstitutional

Ala. Code § 16-1-20.1 (Cum. Supp. 1982), which au-

thorizes public school teachers at the beginning of

the school day to “announce that a period of silence

not to exceed one minute in duration shall be~ob-

served for meditation or voluntary prayer.” The

court rested this judgment on a finding that the

moment of silence statute lacks a “secular legisla-

tive purpose” and has “the primary effect of ad-

vancing religion” (J.S. App. 18a). Since there is

no evidence in the record regarding whether or

how the statute has been implemented, and the court

of appeals did not cite any specific features of

the statute as a basis for its holding, the judgment

must be considered one of facial invalidity, of poten-

tially wide application. For the reasons stated by

Judges Roney, Tjoflat, Hill, and Fay, dissenting from

denial of the petition for rehearing en banc in the

court of appeals—that the decision affects the resolu-

tion of similar issues in other states; that there is no

controlling precedent governing resolution of the

issue; and that the decision below may well be in-

correct (J.S. App. 2b-4b)—we believe that this case

raises a serious and unsettled question of constitu-

tional law warranting plenary consideration by this

Court.’°

Rev. 364 (1983). The Attorney General of New Jersey de-

clined to defend that State’s moment of silence statute in

May Vv. Cooperman, supra, believing it to be unconstitutional.

* While there are variations among state moment of silence

statutes, we have concluded that there are no differences of

constitutional dimension between the Alabama moment of

silence statute and the others that would diminish the prece-

2. More fundamentally, we submit that the moment

of silence issue raises questions of interpretation

of the Religion Clauses of the First Amendment of

significance far beyond the particulars of this or

similar statutes. This case would provide an oppor-

tunity for the Court to consider the legitimacy of

governmental efforts to accommodate the interests

of individuals of religious conviction in the public

schools and, by implication, in other contexts where

religious practice may require the permission or co-

operation of government. Since Zorach v. Clauson,

343 U.S. 306 (1952), this Court has not provided

substantial guidance on how federal, state, and local

governments can “accommodate[] the public service

to [our people’s] spiritual needs.” Jd. at 314. This

case also presents an apt opportunity for this Court

to evaluate the trend of state and lower federal court

decisions which increasingly, in Justice Goldberg’s

words, “partake not simply of that noninterference

and noninvolvement with the religious which the Con-

stitution commands, but of a brooding and pervasive

devotion to the secular and a passive, or even active,

hostility to the religious.” Schempp, 374 U.S. at 306

(concurring opinion).

dential impact of this Court’s disposition of this appeal, or

that would detract from the appropriateness of this case as a

vehicle for addressing the general question. In particular,

we do not consider it constitutionally significant whether the

statute contains the word “prayer,” so long as it does not

purport to require prayer or to prohibit non-religious uses

of the moment of silence. Compare Gaines Vv. Anderson, supra

(upholding moment of silence statute containing the word

“prayer”) with May v. Cooperman, supra (striking down

moment of silence statute containing no reference to “prayer”

or any other form of religious activity).

10

The fundamental impulse that led to adoption of

the Religion Clauses of the First Amendment was

the desire to allow free rein to religious practice

without the interference that federal prohibitions or

establishments would necessarily entail. The touch-

stene is not secularism, but pluralism. Moment of

silence statutes are libertarian in the precise spirit

of the Bill of Rights: they accommodate those who

believe that prayer should be an integral part of life’s

activities (including school), and do so in the most

neutral and noncoercive spirit possible. The student

may pray, but is equally free to meditate or daydream

or doze. No one can even know what the other chooses

to do: silence is precious because it creates the possi-

bility of privacy within public occasions. To hold that

the moment of silence is unconstitutional is to insist

that any opportunity for religious practice, even in

the unspoken thoughts of schoolchildren, be extirpated

from the public sphere. It is to be censorial where

the Religion Clauses are libertarian; it would make

the very concept of religious accommodation consti-

tutionally suspect.

This Court has not so rigidly interpreted the Es-

tablishment Clause as to preclude governmental ac-

commodation of religion. To the contrary, in some

contexts the Court has found particular forms of

accommodation constitutionally required under the

Free Exercise Clause, despite the fact that the accom-

modation has the undeniable effect of encouraging

religious practice. See Thomas v. Review Board, 450

U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205

(1972); Sherbert v. Verner, 374 U.S. 398 (1963).

Still more common are governmental accommodations

to religion not mandated by the Free Exercise Clause,

but nonetheless permissible under the Establishment

11

Clause.” As this Court stated in Zorach (343 U.S.

at 313-314):

“When the state encourages religious instruction

or cooperates with religious authorities by ad-

justing the schedule of public evcnts to sectarian

needs, it follows the best of our traditions. For

it then respects the religious nature of our people

and accommodates the public service to their

spiritual needs. To hold that it may not would

be io find in the Constitution a requirement that

the government show a callous indifference to

religious groups. That would be preferring those

who believe in no religion over those who do

believe.

Accord, Walz v. Tax Commission, 397 U.S. 664, 673

(1970). As Justice Brennan has stated, “even when

1 McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J.

concurring). See, e.g., Mueller v. Allen, No. 82-195 (June 29,

1983) (tuition tax credits) ; St. Martin Evangelical Lutheran

Church v. South Dakota, 451 U.S. 772 (1981) (exemption of

religious school employees from unemployment taxes) ; Gillette

v. United States, 401 U.S. 4837 (1971) (exemptions from com-

pulsory military service for religious objectors) ; Walz v. Tax

Commission, supra (property tax exemptions for religious

organizations) ; Arlans Dep’t Store, Ince. V. Kentucky, 371 U.S.

218 (1962) (dismissing for want of a substantial federal ques-

tion an appeal challenging the constitutionality of exemptions

from Sunday closing laws for the benefit of Sabbatarians) ;

McGowan Vv. Maryland, 366 U.S. 420 (1961) (Sunday clos-

ing laws); Zorach v. Clauson, supra (off-premises public

school release time programs) ; Quick Bear v. Leupp, 210 U.S.

50 (1908) (use of Indian trust monies for sectarian educa-

tion). Cf. Widmar v. Vincent, 454 U.S. 263 (1981) (striking

down prohibition on religious group meetings on public uni-

versity campus); McDaniel v. Paty, supra (striking down

prohibition on service by ministers as delegates to state con-

stitutional convention).

12

the government is not compelled to do so by the Free

Exercise Clause, it may to some extent act to facili-

tate the opportunities of individuals to practice their

religion.” Marsh v. Chambers, No. 82-23 (July 5,

1983), slip op. 17 (dissenting opinion). In a simi-

lar vein, Justice Rehnquist has suggested that “gov-

ernmental assistance which does not have the effect of

‘inducing’ religious belief, but instead merely ‘accom-

modates’ or implements an independent religious

choice does not impermissibly involve the government

in religious choices and therefore does not violate the

Establishment Clause of the First Amendment.”

Thomas vy. Review Board, 450 U.S. at 727 (dissent-

ing opinion). See also Widmar v. Vincent, 454 U.S.

263, 282 (1981) (White, J., dissenting).

In this context, we are concerned that the three-

part test of Lemon v. Kurtzman, 403 U.S. 602 (1971),

has been understood by many state and lower federal

courts, including the court below, as precluding vir-

tually all governmental accommodations of religion."

These courts have viewed accommodation as a non-

“secular” (hence impermissible) purpose, and have

viewed the creation of opportunities for religious

practice as having the primary effect of “advancing”

11 Of particular concern to the United States are Sections

701(j) and 703(a)(1) of the Civil Rights Act of 1964, 42

U.S.C. 2000e(j), 2000e-2(a) (1), which promote the values of

“religious pluralism” in the workplace. Trans World Airlines,

Inc. Vv. Hardison, 432 U.S. 68, 87 (1977) (Marshall, J., dissent-

ing). These provisions of Title VII require employers to make

“reasonable accommodation,” short of “undue hardship,” to

the religious needs and practices of their employees. For ex-

ample, an employer must make reasonable accommodation to

a Sabbatarian employee’s desire not to work on Saturdays,

13

religion.” However, as the continued authority of

Zorach and Walz demonstrates, no such drastic sur-

gery has been performed on the concept of religious

accommodation. Plainly, a subtler analysis is required

to draw meaningful distinctions in this sensitive area.

The court of appeals’ focus on legislative motiva-

tion in this case (J.S. App. 18a) exemplifies this rigid

understanding of the Establishment Clause. The

court apparently believed that the moment of silence

statute is unconstitutional simply because it was

intended to provide an opportunity for so-minded stu-

dents to pray. But it matters not that some legislators

may have harbored the hope that some students would

in fact use the opportunity provided for religious ends,

so long as the means chosen by the legislature is found

to be within the bounds of permissible accommoda-

tion. See Mueller v. Allen, No. 82-195 (June 29,

1983) slip op. 6. The whole point of religious accom-

modation is to create opportunities for persons to

pursue their own beliefs and thus to provide an en-

vironment in which “voluntary religious exercise may

flourish.” McDaniel v. Paty, 435 U.S. 618, 639 (1978)

(Brennan, J., concurring) (emphasis added).

even though there is no comparable obligation to accommodate

the desire of another employee, based on nonreligious grounds,

not to work on Saturdays. See 118 Cong. Rec. 705 (1972)

(statement of Sen. Jennings Randolph). We were dismayed

to learn that a court recently struck down a provision of state

law similar to these religious accommodation provisions of

Title VII, applying essentially the same approach to the Lemon

test as was applied by the court below. Caldor, Inc. V. Thorn-

ton, 191 Conn. 336, 464 A.2d 785 (1983).

12 But see, e.g., Lanner v. Wimmer, 662 F.2d 1349, 1359

(10th Cir. 1981) ; O’Hair v. Andrus, 613 F.2d 931 (D.C. Cir.

1979) ; Smith v. Smith, 523 F.2d 121, 124-125 (4th Cir. 1975),

cert. denied, 423 U.S. 1073 (1976).

14

Nor should the apparent hostility of some of Ala-

bama’s legislators to this Court’s decisions in Schempp

and Engel be considered fatal to the constitutionality

of the moment of silence. Government officials are re-

quired to comply with judicial decisions, not to speak

well of them. The moment of silence statute need not

be viewed as a “guise” for evading this Court’s deci-

sions (J.S. App. 18a); rather, the statute can more

fairly be understood as an attempt—even if a grudg-

ing attempt—to comply with them. See Gaines v.

Anderson, 421 F. Supp. at 341.

The special character of the public school class-

room necessarily heightens sensitivity to possible

problems under the Religion Clauses. But that special

character accentuates the need for toleration and ac-

commodation; it does not mean that students are re-

quired to shed their religious beliefs and practices at

the schoolhouse gate. Cf. Tinker v. Des Moines Inde-

pendent Community School District, 393 U.S. 503, 506

(1969). It was precisely in the context of public

schools that this Court commended efforts to encour-

age and cooperate with the religious needs of stu-

dents as “follow[ing] the best of our traditions.”

Zorach, 343 U.S. at 314. Attendance at elementary

and secondary schools is compulsory, and it consti-

tutes a major portion of the pupils’ time and activ-

ity. To those who regard prayer as intrinsic to all

of their activities, the opportunity for prayer at

school thus assumes a special importance. Failure

to accommodate the religious needs of students in

the years since Schempp and Engel has contributed

to the exodus of many religious students, especially

Christian fundamentalists and evangelicals, from

the public schools, much as the failure to accommo-

date the distinctive religious needs of Jewish and

15

Roman Catholic students in an earlier era induced

them to abandon public schools and form private

school systems of their own. The values of pluralism

and diversity in our public schools suffer needlessly

from a reading of the Establishment Clause that de-

stroys the possibility of accommodating, in a spirit

of toleration, voluntary religious practices of the sort

involved in this case.

Permitting school children to maintain a moment

of silence in the public schools presents no threat to

the values protected by the Establishment Clause. It

evinces a “benevolent neutrality” (Walz, 397 U.S. at

669) in keeping with the libertarian spirit of both

Religion Clauses. We submit, therefore, that the

court of appeais decision invalidating Alabama’s

moment of silence statute warrants plenary review.

We believe it would be unfortunate for an issue of

this importance to be resolved summarily.

3. In focusing our attention and the attention of

the Court on the moment of silence issue, we do not

intend to minimize the importance of the broader

issues raised by the appellants here, or by the peti-

tioners and appellants in Nos. 83-804 and 83-929.

Indeed, the President and the Department of Justice

have urged reexamination in another forum of the

wider school prayer issues raised by appellants and

petitioners. See S.J. Res. 73, 98th Cong., Ist Sess.

(1983) (President’s proposed constitutional amend-

ment permitting voluntary prayer in the public

schools); Proposed Constitutional Amendments Re-

lating to School Prayer: Hearings Before the Senate

Comm. on the Judiciary, 98th Cong., 1st Sess. (1983)

(Statement of Hon. Edward C. Schmults, Deputy

Att’y Gen. of the United States). We recognize that,

with respect to these wider school prayer issues, the

16

question for the Court is whether it now wishes to

engage in a reappraisal of its precedents. However

the Court may answer that question, we submit that

the moment of silence issue—which is an important

question of first impression in this Court—should not

be allowed to be engulfed in these wider waters, as

was the case, we fear, in the court of appeals. The

moment of silence issue provides a unique oppor-

tunity in a discrete context not yet addressed by this

Court to take a fresh look at the tests for distinguish-

ing between establishments of religion on the one

hand, and permissible instances of accommodation of

and toleration for private religious beliefs and prac-

tices, on the other.

CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted.

REx E. LEE

Solicitor General

Wm. BRADFORD REYNOLDS

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

MICHAEL W. MCCONNELL

Assistant to the Solicitor General

DECEMBER 1983

ov. S. GOVERNMENT PRINTING OFrice; 1963 426196 179