Amicus Curiae Brief — Board of School Commissioners v. Jaffree

U.S.

. ‘ S reme Court.

juL 5 1984

RK ——

IN THE ——

Supreme Court of the United States

October Term, 1983

No. 83-812

GEORGE C. WALLACE, Governor, et al.,

Appellants,

V.

ISHMAEL JAFFREE, et al.,

Appellees.

No. 83-929

DOUGLAS T. SMITH, et al..

Appellants,

Vv.

ISHMAEL JAFFREE, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF THE FREEDOM COUNCIL,

AMICUS CURIAE, IN SUPPORT

OF THE APPELLANTS

JOHN W. WHITEHEAD JAMES J. KNICELY

P. O. Box 409 GRABER & KNICELY

Manassas, VA 22110 1001-A Richmond Road

(703) 491-5411 Williamsburg, VA 23185

(804) 253-0026

Participating Attorneys for

The Rutherford Institute

P. O. Box 510

Manassas, VA 22110

Attorneys for Amicus Curiae

The Freedom Council

P. O. Box 64323

Virginia Beach, VA 23464

TABLE OF CONTENTS

Page

Interest of Amicus Curiae ......... 6.00 e cece eee e ee eeeee 1

Summary of Argument ....... 26-666 cee eee eee renee 3

Argument

I. Alabama’s Statutory Provision Which Permits Public

School Teachers To Begin The School Day With Medi-

tation Or Silent Prayer Does Not Conflict With The In-

tentions Of The Framers Of The First Amendment As

Revealed In Their Words, Deeds, And History ........ 4

A.

B.

If. Ala

The Views Of Thomas Jefferson And James Madison 5

Executive And Congressional Actions In Support Of

Our Religious Heritage ......... 6-6 -- esses eee 11

bama’s Statutory Provision Which Permits Public

School Teachers To Begin The School Day With Medita-

tion Or Silent Prayer Merely Permits An Exercise Of The

Liberty Of Conscience In Its Purest Form .........-- 16

Ill. Alabama’s Statutory Provision Allowing Meditation or

Sile

nt Prayer is an Example of Affirmatively Mandated

Accommodation ... 6... ccc cc eee eee e eee eennes 21

IV. Alabama’s Statutory Provision Allowing Meditation or

Silent Prayer does not Violate the Lemon Tripartite Test 23

A.

Alabama Code § 16-1-20.1 Serves Secular Educa-

tional Purposes .........-- 60sec e eee eee eens 23

Any Advancement of Religion By a Period of Silence

is Merely De Minimus and Incidental ..........-- 26

There is No Entanglement Issue Presented Here .... 27

TABLE OF CASES

Cases

Page

Baird v. State Bar of Arizona, 401 U.S. 1 (1970) ............ 19

Braunfeld v. Brown, 366 U.S. 599 (1961) ..........--5265. 21

Bridges v. California, 314 U.S. 252 (1941) ............+55. 19

Cantwell v. Connecticut, 310 U.S. 296 (1940) .......... 5, 16, 17

Curtis v. Loether, 415 U.S. 189 (1974) ............6-0445- 25

Engel v. Vitale, 370 U.S. 421 (1962) ............... 6, 7, 12, 15

Everson V. Board of Education, 330 U.S. 1 (1947) .......... 5, 6

Gaines v. Anderson, 421 F.Supp. 337 (D.Mass. 1976) ...... 25, 26

Griswold v. Connecticut, 381 U.S. 479 (1965) ............ 19, 20

Hunt v. McNair, 413 U.S. 734 (1973) ... 2.2... cc wee ewes 24

Jaffree v. Board of School Commissioners of Mobile County, 554

F.Supp. 1104 (S.D.Ala. 1983) ..... 2.2... 6. eee e ee eens 27

Jones v. Opelika, 316 U.S. 595 (1942) ... 2... 2.6622 c eee 16, 19

Keyishian v. Board of Regents, 385 U.S. 589 (1967) ......... 20

Lamont v. Postmaster General, 381 U.S. 301 (1965) ......... 20

Larson v. Valente, 456 U.S. 228 (1982) ... 2.2... cece ene 24

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............. 4, 23,24

Lynch v. Donnelly, ——— U.S. ——., 104 S.Ct. 1355

GEE . cctuccsecdhantacs 5, 7, 12, 15, 16, 18, 22, 23, 24, 26, 27

Marsh v. Chambers, US. ——, 103 S.Ct. 3330

CERES cccccccontbacccesecésueuheeenane 5, 10, 11, 21, 24

Martin v. Struthers, 319 U.S. 141 (1943) ... 0... 0... ee ene. 20

McCollum v. Board of Education, 333 U.S. 203 (1948) ....9, 16

McGowan v. Maryland, 366 U.S. 420 (1960) .............. 10

Meyer v. Nebraska, 262 U.S. 390 (1922) .........0e ee euee 16

Meyers Vv. United States, 272 U.S. 52 (1926) ............... 15

Mueller v. Allen, U.S. ——, 103 S.Ct. 3062 (1983) .... 24

NAACP Vv. Alabama, 357 U.S. 449 (1958) ..........6.5005: 19

New York Trust Co. v. Eisner, 256 U.S. 345 (1921) ........ 5

Olmstead v. United States, 277 U.S. 438 (1928) ........... 19

Prince v. Massachusetts, 321 U.S. 158 (1943) ........... 16, 20

Reed v. Van Hoven, 237 F.Supp. 48 (W.D.Mich. 1965) ..... 25

School District of Abington Township, Pa. v. Schempp, 374 US.

EE 16, 17, 26, 27, 28

Shelton v. Tucker, 364 U.S. 479 (1960) ............000005- 20

Sherbert v. Verner, 374 U.S. 398 (1963) .............0055. 21

Stanley v. Georgia, 394 U.S. 449 (1969) ............. 16, 19, 20

Thomas v. Collins, 323 U.S. 516 (1944) ..........00055. 16, 19

Tinker Vv. Des Moines Independent School District, 393 U.S. 503

EPEC ECU cE eiweseccsssececcccccecccccs 20

Torcaso V. Watkins, 367 U.S. 488 (1961) ............54.. 27, 29

Walz v. Tax Commission, 397 U.S. 664 (1970) ........ 5,21, 22

West Virginia Board of Education v. Barnette, 319 U.S. 624

eee e ey we eenecccccccccecccceces 16

Widmar v. Vincent, 454 U.S. 263 (1981) ...........050005. 27

Winters v. New York, 333 U.S. 507 (1948) ............055. 20

Wooley v. Maynard, 430 U.S. 705 (1977) ..........2005. 16, 19

Zorach v. Clauson, 343 U.S. 306 (1952) .......... 16, 21, 22, 23

Statutes

Pr eR: FBR. | Revere ore TeTTTITT LTT ei 23

ALA. CONST. Preamble, ALA. CODE, Vol. 1 ............ 29

A Treaty Between the United States of America and the Kaskas-

kia Tribe of Indians, 7 Stat. 78-79 (Peters ed. 1846) ....... 9

A Treaty Between the United States and the Oneida, Tuscorora,

and Stockbridge Indians, dwelling in the Country of the

Oneidas, 7 Stat. 47-48 (Peters ed. 1846) ..........20005. 13

An Act granting further time for locating military land warrants,

and for other purposes, Ch. 26, 2 Stat. 271-272 (Peters ed.

SEED. cctuadsdnnees66s0s 665 ReCedens cueedebeeteseas 8

An Act in addition to an act, intituled etc., Ch. 30, 2 Stat. 155-

CS GUE GE, TG 0 6.0 cee es cdtdcccccesevticssonces 8

An Act to provide for the Government of the Territory Northwest

of the river Ohio (Northwest Ordinance), Ch. 8, 1 Stat. 50-51

CURE BUD 8 occ ccecccasecsecstessescveseceese 13

An Act to revive and continue in force, etc., and for other pur-

poses, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845) .......... 8

Articles of a (Kickapoo Indian) Treaty, 7 Stat. 391-392 (Peters

GE, TD. duc ctndncwessddbcnncdscecatevnseenssecouss 14

Articles of a (Osage Indian) Treaty, 7 Stat. 242-243 (Peters ed.

CE bck cb cddvudusiondiedndeiece beddeedesicns tenes 14

Articles of a (Wyandot Indian) Treaty, 7 Stat. 160, 166 (Peters

Oe TE 64.6 64.6660666500d00h0eRenesonennesaeereues 13

H. R. Rep. No. 124, 33rd Cong., Ist Sess. (1789), reprinted in

2 Reports of Committees of the House of Representatives 4

CED noo wen cnccecedscavescenveusteesneseuacesss 10

Joint Resolution, etc., Pub. L. No.. 94-344 § 1(19), 90 Stat. 810,

813 (1978), codified, as amended, at 36 U.S.C. § 172 (1978) 15

iv

Page

Joint Resolution to establish a National Motto of the United

States, Ch. 795, Pub. L. No. 84-851, 70 Stat. 732 (1957) ... 15

Journal of the House of Representatives 123 ................ 11

i, une dae ebekeueeneanene 11

Ord. of 1787, July 13, 1787, Art. 3, reprinted in Documents Illus-

trative of the Formation of the Union of American States 52

ED | a space bake Kid 4k Kd Ones akaked deeeeeneaus 13

Other Sources

2 American State Papers (J. Gales ed. 1834) ............... 14

1 Annals of Congress (J. Gales ed. 1834) ................ 10, 17

C. Antieau, A. Downey and E. Roberts, Freedom From Federal

ee ee du neat nanses canes 6

H. Black, Constitutional Law (4th ed. 1927) ............... 8

Choper, Religion in the Public Schools: A Proposed Constitu-

tional Standard, 47 Minn. L. Rev. 329 (1963) ............ 25

Comment, Accommodating Religion in the Public Schools, 59

Pe aie SG Ee UE gba 0 e666 nnb5000 00606600608 26

Comment, Secularism in the Law: The Religion of Secular Hu-

manism, 8 Ohio N. U. L. Rev. 329 (1981) .............. 28

T. Cooley, Principles of Constitutional Law (1893) ......... 8

R. Cord, Separation of Church and State: Historical Fact and

eg ed cen eeansees es 8, 10, 11

H. Cox, The Secular City 18 (1965) ............ccceeeees 29

Forkosch, Religion, Education, and the Constitution—A Middle

Way, 23 Loyola L. Rev. 617 (1977) ............2e200ee 28

P. Freund, Religion and the Public Schools (1965) .......... 26

Page

Giannella, Religious Liberty, Nonestablishment and Doctrinal

Development—Part I, 80 Harv. L. Rev. 1381 (1967) ....17, 18

Giannella, Religious Liberty, Nonestablishment and Doctrinal

Development—Part II, 81 Harv. L. Rev. 513 (1968) ....22, 28

M. Howe, The Garden and the Wilderness (1965) ........... 6

P. Kauper, Civil Liberties and the Constitution (1962) ....... 29

Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich.

Se OD +. b6 Gu eb dave we eesecwensescees 21, 26

Note, Religion in the Public Schools, 20 Vand. L. Rev. 1078

CRD. Cksb cd vec nncedccsnsbeceesscvecveteeseteess 26, 27

2 J. Richardson, A Compilation of the Messages and Papers of

the Presidents, 1789-1897 (1901) ......... 0. ccc ee eeeee 14

P. Stokes and L. Pfeffer, Church and State in the United States

CED ce Cake 60d 6bbW640040%9065 00000806686 0508 7, 12,13

2 J. Story, Commentaries on the Constitution of the United States

Ge Ge IE 96060 ces cet cnedbecenseccoesseses 7, 8,18

L. Tribe, American Constitutional Law (1978) ............. 24

1 U.S. Office of Indian Affairs, Annual Reports of the Commis-

sioner of Indian Affairs, 1824-1831 (1976) ........000005 14

1 C. Warren, The Supreme Court in United States History (1922) 15

J. Wilson, Public Schools of Washington, 1 Records of the

Columbia Historical Society 4 (1897) ...........0000eee 9

8 Works of Thomas Jefferson (Washington ed. 1861) ........ 7

15 Writings of Thomas Jefferson (Memorial ed. 1904) ....... 8

19 Writings of Thomas Jefferson (Memorial ed. 1904) ....... 9

vi

IN THE

Supreme Court of the United States

October Term, 1983

No. 83-812

GEORGE C. WALLACE, Governor, et al.,

Appellants,

V.

ISHMAEL JAFFREE, et al.,

Appellees.

No. 83-929

DOUGLAS T. SMITH, et al.,

Appellants,

V.

ISHMAEL JAFFREE, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF THE FREEDOM COUNCIL,

AMICUS CURIAE, IN SUPPORT

OF THE APPELLANTS

INTEREST OF AMICUS CURIAE'

This case presents important issues concerning the power

of the state to recognize and accommodate America’s re-

ligious pluralism and diversity in the operation of the public

2 Counsel of record to the parties in the cases described above

have consented to the filing of this brief and letters of consent have

been filed with the Clerk pursuant to Rule 36.

2

schools without infringing upon the freedom of conscience

of individual students or teachers. The Freedom Council is

greatly concerned about the implications for religious free-

dom and tolerance raised by the Court of Appeals’ decision

in this case. The Freedom Council believes that the Court

of Appeals ruling swept too broadly when it invalidated the

Alabama meditation or silent prayer statute. The statute

does not advance religion. It merely provides for a period of

silence that recognizes in neutral fashion the freedom of

conscience of each teacher and student. Teachers are free

to decide whether or not to observe a period of silence and

students are free to utilize the period of silence in the

manner they — choose. Such activity merely ad-

vances the spirit of pluralism and toleration intended by the

First Amendment and does not constitute an unlawful estab-

lishment of religion.

The Freedom Council is a non-profit religious corpora-

tion organized to defend, restore, and preserve religious

liberties guaranteed by the Constitution. With chapters

in each of the 50 states, the Freedom Council is also affili-

ated with student groups on over 70 college campuses

and with the Christian Broadcasting Network, currently

the largest cable television network in the United States

reaching over 20 million homes. The Freedom Council

assists its chapters and associated organizations in address-

ing issues on the local, state and national levels that have

a significant impact on First Amendment religious freedoms.

Amicus Curiae is represented by participating attorneys

from The Rutherford Institute, a non-profit religious cor-

poration named for Samuel Rutherford, a 17th-century

Scottish minister and Rector at St. Andrew’s University.

Through the efforts of its staff and affiliated local chapters,

attorneys and lay persons, the Institute undertakes to assist

3

litigants and to participate in significant cases relating to

First Amendment religious freedoms. Counsel for Amicus

Curiae have specialized in constitutional litigation, including

the Religion Clauses of the First Amendment, and have par-

ticipated as counsel for amici curiae in previous cases

before this Court. Counsel John W. Whitehead has

argued and served as special cons.:tutional consultant in

numerous First Amendment cases and has authored several

books and law review articles that focus on interpretation

and application of the First Amendment Religion Clauses.

The Freedom Council believes the expertise of its counsel

will be of assistance to the Court in this case.

SUMMARY OF ARGUMENT

In prior cases, this Court has relied upon the intent of

the Framers of the Bill of Rights for understanding the

meaning and reach of the Establishment Clause. The histori-

cal record shows that the climate of the revoiutionary

period was fundamentally religious and favored government

accommodation of religious practices, some of far more sig-

nificance than the Alabama law in question. Both Jefferson

and Madison, often cited for their disestablishmentarian

views, in fact tolerated and approved numerous religious

practices in the public schools and in public life. Jefferson,

for example, was President of the School Board of the Dis-

trict of Columbia where the Bible and the Watts Hymnals

were used as primary texts. Moreover, our national history

is replete with examples of government, in a spirit of tolera-

tion and accommodation, recognizing, as the State of Ala-

bama has in this case, America’s religious tradition and

culture, but without infringing on the rights of conscience

of those who do not subscribe to particular tenets of that

tradition or culture.

4

The Alabama law in question is permissive. It provides

an opportuni:y to observe a period of silence in which

each may meditate or voluntarily pray. It respects the in-

violability of conscience that is at the heart of the Free

Exercise Clause. It is not a constitutionally proscribed

establishment of religion. It merely advances in neutral

fashion the freedom to believe (or not to believe) and con-

stitutes the type of affirmative, yet neutral, accommodation

mandated by the First Amendment.

The Alabama law also satisfies the “tri-partite test” of

Lemon v. Kurtzman, 405 U.S. 602 (1971). Secular means

and ends are furthered by the period of silence, including

the interests of calling the classroom to order, instructing

the students in self-discipline, teaching the students re-

spect for the authority of the teacher, permitting students

to contemplate serious thoughts and values, engendering

an appreciation for this nation’s cultural and religious heri-

tage and promoting religious liberty and tolerance through

voluntarism. Any nominal aid to religion is incidental to the

purposes of the statute and de minimus when compared to

statutory enactments this Court has approved in the past.

ARGUMENT

1.

Alabama’s Statutory Provision Which Permits Public School

Teachers To Begin The School Day With Meditation Or

Silent Prayer Does Not Conflict With The Intentions Of

The Framers Of The First Amendment As Revealed Ja

Their Words, Deeds, And History.

History provides varied and ample evidence that among

the founders of this Republic and its early presidents and

congresses, the universal sentiment towards religion was one

of accommodation, not merely toleration. It is unequivo-

5

cably clear from the language, intent, and history surround-

ing the adoption of the First Amendment that the separation

of church and state intended by the Bill of Rights was of

limited effect and that amicability, not hostility to the free

exercise of religion, was the shibboleth of that era.

In Religion Clause adjudication, no less than any other

area of law, Justice Holmes’ statement is most fitting: “A

page of history is worth a volume of logic.” New York

Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). The de-

termination of “the ultimate constitutional objective” as

expressed by the Framers and “as il/uminated by history” is

of particular relevance here. Lynch v. Donnelly, US.

; , 104 S.Ct. 1355, 1361 (1984); Walz v. Tax

Commission, 397 U.S. 664, 671 (1970). In this regard,

this Court has said:

In applying the First Amendment to the states through

the 14th Amendment, Cantwell v. Connecticut, 310

U.S. 296 (1940), it would be incongruous to interpret

that clause as imposing more stringent First Amend-

ment limits on the states than the draftsmen imposed

upon the Federal Government.

Marsh v. Chambers, __. US. . , 103 S.Ct. 3330,

3335 (1983). Because of this basic constitutional presup-

position, concrete, specific historical evidence of the Fra-

mers’ views on religion and religious practices in public life

must be placed at a premium to understand the reach and

meaning of the First Amendment Religion Clauses.

A. THe Views Or THOMAS JEFFERSON AND

JAMES MADISON.

The views of Thomas Jefferson and James Madison have

been previously recognized by this Court as most instructive.

verson V. Board of Education, 330 U.S. 1 (1947). Al-

6

though Thomas Jefferson can in no sense be regarded as

a Framer of the First Amendment, this Court, in its early

Religion Clause cases, has adopted the view that “the

framers spoke in a wholly Jeffersonian dialect and those

who ratified it fully undevstood that style of speech.” M.

Howe, The Garden and the Wilderness 10 (1965). At

the time of the drafting and adoption of the First Amend-

ment, Jefferson was in France. However, through his cor-

respondence with James Madison, his influence was at least

partially felt.

In many ways, the views of Madison and Jefferson were

not representative of those of the Framers of the Constitut-

ion. Both Madison and Jefferson were from Virginia and

were central figures in the fight in that state for the disestab-

lishment of the Church of England. See Everson v. Board

of Education, 330 U.S. at 11-13 and 33-42 and Engel v.

Vitale, 370 U.S. 421, 428-429 (1962)’

Not all states, however, shared Madison’s and Jefferson’s

fervor for disestablishment. As this Court has previously

noted, at the outbreak of the Revolutionary War, “there

2 Antieau, Downey and Roberts note, however, that: “[T])he First

Amendment was hardly the exclusive product of any one person.

Subsequent interpretations of the Amendment should not be con-

trolled by the singular statements of Madison [or] Jefferson. ... An

examination of the early activities of the Federal Government in-

dicates that the people approved and welcomed its aid to church

related activities. .. . There was undoubtedly the faith that subse-

quent generations of Americans would be able to utilize the power

of the Federal Government to promote the concurrent interests of

government and religion under First Amendment norms that were

reasonable, and just.” C. Antieau, A. and

E. Roberts, Freedom From Federal Establishment 207-209 (1964).

2 Both Madison’s Memorial and Remonstrance Against Religious

Assessments, written in 1785 in opposition to legislation which would

use Virginia’s public funds to pay teachers of the Christian religion,

and Jefferson's Bill for Establishing Religious Freedom in Virginia,

in 1779 and enacted in 1786, were central documents to

these disestablishmentarian forces.

7

were established churches in at least eight of the thirteen

former colonies and established religions in at least four of

the other five.” Engel v. Vitale, 370 U.S. at 428. The dis-

establishment of state churches was by no means complete

by the time of the ratification of the Federal Constitution.

Indeed, the Congregational Church was not disestablished

in Connecticut until 1818 and in New Hampshire until

1819. The last of the colonies, Massachusetts, was not

disestablished until 1833. P. Stokes and L. Pfeffer, Church

and State in the United States 77-78 (1964).

This history of state church establishment illustrates that

the term “establishment” had a fixed meaning in the minds

of the drafters. On the Federal level, “[t]he real object of the

[first] amendment was. . .to prevent any national ecclesias-

tical establishment which should give to a hierarchy the

exclusive patronage of the national government.” Lynch v.

Donnelly, 104 S.Ct. at 1361, citing 2 J. Story, Commen-

taries on the Constitution of the United States 593-595 (2d

ed., 1851). This restriction was institutional in nature. As

Jefferson’s often quoted expression stated, the Religion

Clauses were to build “a wall of separation between Church

and State.” 8 Works of Thomas Jefferson 113 (Washington

ed. 1861) (emphasis supplied). No wall of separation was

intended, however, even by Jefferson, to seal religion

hermetically from governmental activities. The institution

of the church was to be isolated from the institution of the

state. As Jefferson stated in 1817:

If by religion, we are to understand sectarian dogmas,

in which no two of them agree, then your exclamation

on that hypothesis is just, “that this would be the best

of all possible worlds, if there were no religion in it.”

But if the moral precepts, innate in man, and made a

part of his —— constitution, as necessary for a

social being . . . in which all agree, constitute true re-

ligion, then, without it, this would be, as you again say,

“something not fit to be named even, indeed, a Hell.”

15 The Writings of Thomas Jefferson 109 (Memorial ed.

1904). Indeed, it must be noted: “Probably, at the time of

the adoption of the constitution, and of the amendment to it

now under consideration, the general if not the universal

seiitiment in America was, that Christianity ought to receive

encouragement from the state so far as was not incompatible

with the private rights of conscience and the freedom of re-

ligious worship.” J. Story, supra; see also H. Black, Consti-

tutional Law 515 (4th ed., 1927) and T. Cooley, Principles

of Constitutional Law 224 (1893).

That this sort of accommodation of religious freedom was

compatible with the alleged “separationist” views of Thomas

Jefferson was particularly evident in Jefferson’s actions in

the field of education. Jefferson as President repeatedly de-

parted from the fastidious separationism which revisionist

historians have attributed to him. For example, on three

separate occasions, Jefferson signed into law extensions of

a land grant given by the Federal government specifically to

promote proselytizing amongst the Indians. R. Cord, Sep-

aration of Church and State: Historical Fact and Current

Fiction 41-46 (1982).° Further, in 1803, President Jeffer-

son proposed to the United States Senate a treaty with the

Kaskaskia Indians in which the Federal government would

agree to “give annually for seven years one hundred dollars

*An act regulating the grants of land appropriated for military

services, and for the society of the United Brethren for propagating

the gospel among the heathen, and for other purposes, as extended by:

An Act in addition to an act, intituled etc., Ch. 30, 2 Stat. 155-156

(Peters ed. 1845); An Act to revive and continue in force, etc., and

for other purposes, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845); and

An Act granting further time for locating military land warrants,

and for other purposes, Ch. 26, 2 Stat. 271-272 (Peters ed. 1845).

9

towards the support of a priest” and “further give the sum

of three dollars to assist the said tribe in the erection

of a church.” A Treaty Between the United States of Amer-

ica and the Kaskaskia Tribe of Indians, 7 Stat. 78-79 (Pe-

ters ed. 1846). The treaty was ratified on December 23,

1803, and included a specific appropriation for a Catholic

mission, at President Jefferson's request.

Jefferson’s involvement in th: accommodation of the

religious nature of the Americar people was not limited to

Federal grants for the proselytizing of Indians. It extended

as well to general public education. Jefferson was the first

president of the school board in the District of Columbia in

which the Bible and the Watts Hymnal were used as the pri-

mary texts. J. Wilson, Public Schools of Washington, 1

Records of the Columbia Historical Society 4 (1897). Mr.

Jefferson also advocated religious instruction at the Uni-

versity of Virginia, of which he was a founder. Although

the University was wholly governed, managed and con-

trolled by the Commonwealth of Virginia, Jefferson believed

that religious instruction on the school’s premises was “most

interesting and important to every human being. ..The

want of instruction in the various creeds of religious faith

existing among our citizens presents, therefore, a chasm in

the general institution of the useful sciences.” McCollum v.

Board of Education, 333 U.S. 203, 245-246 (1948) (Reed,

J., dissenting), citing 19 The Writings of Thomas Jefferson

414-417 (Memorial ed., 1904). Clearly, Jeffersonian state

disestablishment did not require the eradication of religion

from public schools, even though Virginia’s Bill for Establish-

ing Religious Freedom may have had much more stringent

provisions than those constraining the Federal government.

James Madison, although often cited as antagonistic

toward religion, participated in the creation of several

10

government sponsored religious practices.‘ Madison is

repeatedly noted for leading the disestablishment forces

against Patrick Henry’s A Bill Establishing a Provision for

Teachers of the Christian Religion, which would have pro-

vided a subsidy to religion. It is apparent, however, that

Madison’s Memorial and Remonstrance Against Religious

Assessments was specifically pointed at discriminatory aid

along sectarian lines. In fact, Madison seemed especially

opposed to inequal treatment caused by discrimination along

denominational lines. R. Cord, supra, at 20-21.

Later acts by Madison further clarify that he was not

opposed to governmental benevolence towards religion gen-

erally. A primary example of Madison accommodating the

religious needs of the American people occurred three days

before final agreement upon the wording of the Bill of

Rights. Madison, a participant in the first House of Repre-

sentatives, was a member of the congressional committee

that recommended the chaplain system. H. R. Rep. No. 124,

33rd Cong., Ist Sess. (1789), reprinted in 2 Reports of

Committees of the House of Representatives 4 (1854).

Madison himself voted for the bill authorizing payment of

chaplains for their services. 1 Annals of Cong. 891 (J. Gales

ed. 1834) and Marsh v. Chambers, 103 St. Ct. at 3333.

Reverend William Linn was elected as chaplain to the

House of Representatives and five hundred dollars was ap-

propriated from the Federal treasury to pay his salary.

On September 25, 1789, the same day that final agree-

ment was reached upon the wording of the Bill of Rights,

*It is interesting to note that in the same year that Madison and

Jefferson's collaborative efforts resulted in the passage of A Bill for

Establishing Religious Freedom, Madison presented to the Virginia

legislature A Bill jor Punishing . . . Sabbath Breakers, which i

a fine of “ten shillings for such offence.” McGowan v. Mary-

land, 366 U.S. 420, 438-439 (1960).

11

the House resolved to request that President Washington

proclaim a Day of Thanksgiving to acknowledge “the many

signal favors of Almighty God.” Journal of the House

of Representatives 123; Journal of the Senate 88; Marsh

v. Chambers, 103 S.Ct., at 3334. James Madison endorsed

this and other proclamations calling for Thanksgiving, fast-

ing and prayer. R. Cord, supra, at 28-29. Indeed, later, as

President, Madison issued at least four “Thanksgiving Day”

executive proclamations. Those occurred on July 9, 1812,

July 23, 1813, November 16, 1814 and March 4, 1815.

Id. at 31.

These actions of Madison and Jefferson are of particular

interest because they are contemporaneous with, and proxi-

mate to, the drafting of the First Amendment. As this Court

has held, “historical evidence sheds light not only on what

the draftsmen intended the Establishment Clause to mean,

but also on how they thought that Clause applied...

their actions reveal their intent.” Marsh v. Chambers, 103

S.Ct. at 3344.

If James Madison and Thomas Jefferson are an anomaly,

it is because of their fervor for disestablishment. Yet, the

evidence is clear that both Virginians advocated, partici-

pated and authorized Federal government funding and

sponsorship of patently religious activities which generally

exceeded that degree of accommodation fostered by the

Alabama law involved in the present case.

B. EXECUTIVE AND CONGRESSIONAL ACTIONS IN

Support Or Our RELIGIOUS HERITAGE.

Other manifestations of governmental benevolence

towards religion of a greater magnitude than the Alabama

law are manifest. Universally, the oath of office for Presi-

dents has been administered upon the Bible. By resolution

12

adopted by both houses of Congress it was decided that

“divine services” should be heid in St. Paul’s Chapel in the

District of Columbia to be “performed by the Chaplain of

Congress” following the administration of the oath of

office to George Washington in 1789. P. Stokes and L.

Pfeffer, supra, at 87. On April 30, 1789, Washington upon

assuming office stated, “. . .it would be peculiarly improper

to omit in this first official act my fervent supplications to

that Almighty Being who rules over the universe. . .” Engel

v. Vitale, 370 U.S. at 446 (Stewart, J., dissenting).

Each of our Presidents, from George Washington to the

present Chief Executive has, upon assuming his office, asked

the protection and help of God. An impressive grouping

of such invocations appears in Engel v. Vitale, 370 U.S. at

446-449. As previously mentioned Presidents Washington,

Adams, and Madison issued, at the request of Congress,

Presidential Thanksgiving proclamations. Such executive

expressions can not be cavalierly relegated to the archaic

past, but must be recognized as part of our rich inheritance

of “countless. . . illustrations of the Government’s acknow-

ledgement of our religious heritage and governmental spon-

sorship of graphic manifestations of that heritage.” Lynch v.

Donnelly, 104 S.Ct. at 1361.

Of course, such accommodations to the spiritual needs

of the American people are not limited to the Executive

Branch. Congress, besides being integrally involved in the

adoption of legislative prayer and paid Congressional Chap-

lains, initiated the proclamations already discussed. Perhaps

more important the Continental Congress enacted the North-

west Ordinance on July 13, 1787. That ordinance, in part,

provided:

Religion, morality, and knowledge being essential to

good government and the happiness of mankind,

13

schools and the means of education shall forever be

encouraged.”

Ord. of 1787, July 13, 1787, Art. 3, reprinted in Documents

Illustrative of the Formation of the Union of American.

States 52 (1927). On August 7, 1789 (after the agreement

to the final wording of the Bill of Rights), the Congress of

the newly formed Federal government reenacted the North-

west Ordinance. An Act to provide for the Government of

the Territory Northwest of the river Ohio (Northwest Ordi-

nance), Ch. 8, 1 Stat. 50-51 (Peters ed. 1845).

This Federal grant of land for the promotion of “religion,

morality, and knowledge” was not a unique occurrence

among the early settlers. For example, in 1795, President

Washington concluded a treaty with the Oneida, Tuscorora

and Stockbridge Indians in which the United States paid

“one thousand dollars, to be applied in building a convenient

church at Oneida,” to replace the one which the British

burned in the Revolutionary War. A Treaty Between the

United States and the Oneida, Tuscorora, and Stockbridge

Indians, dwelling in the Country of the Oneidas, 7 Stat. 47-

48 (Peters ed. 1846). Later in 1819 in a treaty with the

Wyandot Indians, Article I of the treaty granted six hundred

and forty acres to the rector of the Catholic Church of St.

Anne in Detroit. Articles of a (Wyandot Indian) Treaty,

7 Stat. 160, 166 (Peters ed. 1846). In 1825, President John

Quincy Adams provided in a treaty with the Osage Indians

for a “Missionary establishment” to teach, civilize and im-

°A. Stokes and L. Pfeffer comment on one manifestation of

such encouragement: “Also worthy of mention in this listing of the

official acts and utterances of the founders before the Constitution

are the resolution of Congress in 1777 instructing the Committee on

Commerce to import twenty thousand copies of the Bible and its

resolution of 1782 approving ‘the pious and laudable undertaking’

of a printer named Robert Aitken in publishing an American edition

of the Holy Scriptures.” A. Stokes and L. Pfeffer, supra, at 85.

14

prove the indians. Articles of a (Osage Indian) Treaty, 7

Stat. 242-43 (Peters ed. 1846). As late at 1833, we find the

Federal government obligated to pay “thirty seven hundred

dollars, for the erection of a mill and church” as terms of a

treaty with the Kickapoo Indians. Articles of a (Kickapoo

Indian) Treaty, 7 Stat. 391-392 (Peters ed. 1846).

Besides these treaties with the individual Indian tribes,

Federal money was expended to support religious schools

and training a policy of “civilizing the Indians.”

This policy was implemented almost exclusively by religious

societies, fulfilling the Federal government’s “duty to use...

[its] influence in converting to Christianity and bringing

within the pale of civilization” the Indian tribes. 2 J. Rich-

ardson, A Compilation of the Messages and Papers of the

Presidents, 1789-1897 415-416 (1901) (Address by Presi-

dent John Quincy Adams in his Fourth Annual Message to

Congress on December 2, 1828). The list of tribes and

Missionary societies supported from Federal funds is quite

extensive. 2 American State Papers 275-277 (J. Gales ed.

1834). Direct subsidies were given from the Federal

treasury to the following religious societies: the United

Brethren, the American Board of Commissioners for For-

eign Missions, the Baptist General Convention, the Prot-

estant Episcopal Church of New York, the Hamilton Baptist

Missionary Society, the Methodist Society, the Synod of

South Carolina and Georgia, the Society of Jesuits, the

Cumberland Missionary Board, and the Society for Pro-

pagating the Gospel. 1 U.S. Office of Indian Affairs, Annual

Reports of the Commissioner of Indian Affairs, 1824-1831

(1976) (Report of November 24, 1827).

These treaties and grants are of particular relevance since,

as this Court has noted “the interpretation of the Establish-

ment Clauses by Congress in 1789 fakes on special signifi-

15

cance in light of the Court’s emphasis that the First Con-

gress ‘was a Congress whose constitutional decisions have

always been regarded, as they should be regarded, as of the

greatest weight in the interpretation of that fundamental

instrument.’ ” Meyers v. United States, 272 U.S. 52, 174-

175 (1926); Lynch v. Donnelly, 104 S.Ct. at 1359.

Congressional actions seeking to embody the religious

nature of the American people are not limited to the early

years of our Republic. One such recognition is the relatively

recent adoption of “In God We Trust” as our national motto.

Joint Resolution to establish a National Motto of the United

States, Ch. 795, Pub. L. No. 84-851, 70 Stat. 732 (1957).

The phrase is <videnced upon all coins and currency, is in

our National Anthem, and is inscribed over the entrance

to the Senate Chamber. Engel v. Vitale, 370 U.S. at 440,

449. Since 1954, the Pledge of Allegiance has contained

the words “One nation, under God, with liberty ard justice

for all.” Joint Resolution, etc., Pub. L. No. 94-344, § 1(19),

90 Stat. 810, 813 (1978), codified, as amended, at 36

U.S.C. § 172 (1978).

All of the institutions of our government are permeated

with such practices, including this Court. The very decorum

of this Court, as well as the ornamentation of the courtroom

communicates this rich heritage. Since the days of John

Marshall, this Court’s crier has said, “God save the United

States and this Honorable Court.” See 1 C. Warren, The

Supreme Court in United States History 496 (1922). In-

deed, “[t]he very chamber in which oral arguments on this

case were heard is decorated with a notable. ..symbol of

religion: Moses with the Ten Commandments.” Lynch v.

Donnelly, 104 S.Ct. at 1361.

It is blinking at reality to say that the practices and

actions described above do not provide concrete, specific

16

historical evidence upon which to evaluate the constitu-

tional validity of the Alabama statute. In light of this rich

heritage of governmental benevolence towards religion, the

result is inevitable. As Justice William O. Douglas instructs:

“We are a religious people whose institutions presuppose a

Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313

(1952). The invalidation of this statute would severely con-

tradict our history, and bring this Court into “war with our

national tradition as embodied in the First Amendment's

guaranty of the free exercise of religion.” McCollum v.

Board of Education, 333 U.S. at 211-212; Lynch v. Don-

nelly, 104 S.Ct. at 1359.

Il.

Alabama’s Statutory Provision Which Permits Public School

Teachers To Begin The School Day With Meditation Or

Silent Prayer Merely Permits An Exercise Of The

Liberty Of Conscience In Its Purest Form.

Liberty of conscience, or the freedom to believe accord-

ing to the dictates of one’s own conscience, is a primary

philosophical tenet of both First, Amendment Religion

Clauses. Wooley v. Maynard, 430 U.S. 705, 714-715

(1976); Stanley v. Georgia, 394 U.S. 557, 565 (1969);

School District of Abington Township, Pa. v. Schempp,

374 U.S. 203, 226 (1963); Thomas v. Collins, 323 US.

516, 530-531 (1944); Prince v. Massachusetts, 321 US.

158, 164-165 (1944); West Virginia Board of Education

v. Barnette, 319 U.S. 624, 642 (1942); Jones v. Opelika,

316 U.S. 584, 595 (1942) (Opinion of Reed, J.); Cant-

well v. Connecticut, 310 U.S. 296, 303 (1940); Meyer

v. Nebraska, 262 U.S. 390, 399 (1922). Concern for this

liberty is central throughout all of the protections embodied

in the Bill of Rights, particularly those identified by this

17

Court as constituting the right to privacy. It would do viol-

ence to both the letter and spirit of our Constitution to sever

religious beliefs from the other freedoms of conscience that

are now clearly protected in the public school environment.

In Cantwell v. Connecticut, 310 U.S. 296, the first in-

stance wherein the Religion Clauses were made applicable

against the states, this Court held that the First Amendment

“embraces two concepts—freedom to believe and freedom

to act. The first is absolute but, in the nature of things, the

second cannot be.’ /d. at 383-384. The absolute restriction

on governmental regulation of belief springs from the senti-

ment that “the rights of conscience are, in their nature, of

peculiar delicacy, and will bear the gentlest touch of gov-

ernmental hand.” I Annals of Cong. 730 (J. Gales ed.

1834) (Statement of Rep. Daniel Carroll of Maryland dur-

ing debate on August 15, 1789). See also School District of

Abington Township, Pa. v. Schempp, 374 U.S. at 231

(Brennan, J., concurring).

The illimitable liberty of conscience embodied in the

First Amendment, was, and still is, a point of scholarly

unanimity. As Professor Giannella has written:

The original constitutional consensus concerning re-

ligious liberty was an outgrowth of Protestant dissent

and humanistic rationalism, the viewpoints that domi-

nated the thinking of the authors of the Constitution.

These two perspectives conjoined to place the indi-

vidual conscience beyond the coercive power of the

secular state. For the Protestant dissenter there was a

Higher Power claiming his u!timate allegiance. For the

rational humanist the individual was anterior to the

state; in the social contract with the state he had prop-

erly reserved the right to his opinions and beliefs on

matters on ultimate concern. This respect for the in-

violability of conscience lies at the heart of the free

exercise clause of the first amendment.

18

Giannella, Religious Liberty, Nonestablishment, and Doc-

trinal Development—Pari 1, 80 Harv. L. Rev. 1381, 1386

(1967).

Freedom to believe is not limited solely to the Free Ex-

ercise Clause. It is clear from the Annals of Congress that

the Establishment Clause was sought primarily to protect the

individual citizen fron: the predatory tendencies of a na-

tional ecclesiastical establishment in violation of his or her

liberty of conscience. As this Court recently recognized in

Lynch v. Donnelly, 104 S.Ct. at 1361, quoting from Justice

Joseph Story:

The real object of the First Amendment was . . . to

prevent any national ecclesiastical establishment which

should give to a hierarchy the exclusive patronage of

the national government.

J. Story, supra, at 593-595. Justice Story went on to state

that:

[The First Amendment] thus cut off the means of re-

ligious persecution (the vice and pest of former ages),

and of the subversion of the rights of conscience in

matters of religion.

Id. (emphasis supplied). The principle of liberty of con-

science also pervades Madison’s Memorial and Remon-

strance Against Religious Assessments and Jefferson’s Bill

Establishing Religious Freedom, and, indeed, was a central

motivating factor in disestablishment, as well as religious

liberty.

This freedom, the right to believe, also provides the foun-

dation for numerous constitutional immunities. Such pre-

ferred freedoms as the free exercise of religion, speech,

press, assembly, petition, security against search and seizures,

and immunity from self-incrimination are all causally linked

19

with the liberty of conscience. Thomas v. Collins, 323 U.S.

at 530-531). Cf. Baird v. State Bar of Arizona, 401 U.S. 1,

6 (1970); Jones v. Opelika, 316 U.S. at 595; Bridges v.

California, 314 U.S. 252, 264-265 (1941). These freedoms

all have their point of origin and their justification in free-

dom of thought. Wocley v. Maynard, 430 U.S. at 714. It

is in this respect that the Alabama statute recognizes and

advances free thought. This fact has been recognized by this

Court:

The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness. They

recognized the significance of man’s spiritual nature,

of his feelings and of his intellect. They knew that only

a part of the pain, pleasure and satisfactions of life are

to be found in material things. They sought to protect

Americans in their beliefs, their thoughts, their emo-

tions and their sensations. They conferred, as against

the Government, the right to be let alone—the most

comprehensive of rights and the right most valued by

civilized man. Olmstead v. United States, 277 U.S.

438, 478 (1928) (Brandeis, J., dissenting). See Gris-

wold v. Connecticut, 381 U.S. 479, 482 (1965); ef.

NAACP vy. Alabama, 357 U.S. 449, 462 (1958).

Stanley v. Georgia, 394 U.S. at 564 (emphasis supplied ).

It is primarily the religious nature of the thoughts, reflec-

tions, mediations or prayers, that are objectionable to the

appellees. An eradication of religious sentiment certainly

does not promote true constitutional objectives. The Es-

tablishment Clause does not mandate a regime of absolute

separation between religious aspirations and secular

thought. Not only would this be impracticable, it would

be impossible. As this Court has noted, thought and religion

both “have unity in the character's prime place because they

have unity in their human sources and functionings. Heart

20

and mind are not identical. Intuitive faith and reasoned

judgment are not the same. Spirit is not always thought. But

in the everyday business of living, secular or otherwise, these

variant aspects of personality find inseparable expression

in a thousand ways. They cannot be altogether parted in

law more than life.” Prince v. Massachusetts, 321 U.S. at

164-165. It would be inapropos to so fervently protect the

liberties of speech, press, assembly, and petition in the

school forum, while curtailing that freedom of conscience

which is their root and origin. Cf. Tinker v. Des Moines

Independent School District, 393 U.S. 503, 511 (1968).

Content-based censorship of thoughts, solely because the

meditation may be of religious significance does “violate

both the letter and the spirit of the Constitution.” Jd. at 512.

“Our whole constitutional heritage rebels at the thought of

giving government the power to control men’s minds.”

Stanley v. Georgia, 394 U.S., at 565. Unquestionably, “the

classroom is peculiarly the ‘marketplace of ideas.’ The Na-

tion’s future depends upon leaders trained through wide

exposure to that robust exchange of ideas which discovers

truth ‘out of a multitude of tongues, [rather] than through

any kind of authoritative selection.’ ” Tinker v. Des Moines

Independent School District, 393 U.S. at 512; Keyishian v.

Board of Regents, 385 U.S. 589, 603 (1967); Shelton v.

Tucker, 364 U.S. 479, 487 (1960). This liberty is closely

linked to the right to receive information, which is pro-

tected under the First Amendment. Martin v. City of

Struthers, 319 U.S. 141, 143 (1943); Winters v. New York,

333 U.S. 507, 510 (1948); Griswold v. Connecticut, 381

U.S. 479, 482 (1965); Lamont v. Postmaster General, 381

U.S. 301, 307-308 (1965) (Brennan, J., concurring);

Stanley v. Georgia, 394 U.S. 557. Religious belief and

speech should receive no less protection.

21

Il.

Alabama’s Statutory Provision Allowing Meditation Or

Silent Prayer Is An Example Ot Affirmatively

Mandated Accommodation.

First Amendment neutrality mandates that the public

school present no affront to the spiritual needs and con-

cerns of its students. Voiding the Alabama statute would

have two “chilling effects” on the First Amendment rights

of students. First, it would prefer those who believe in no

religion over those who believe. Second, it would subjugate

the Free Exercise Clause to Establishment Clause interests,°

thus, contradicting the original intention of the Framers of

the First Amendment.

It is obvious that “[w]e are a religious people whose in-

stitutions presuppose a Supreme Being.” Zorach v. Clauson,

343 U.S. at 313, and that those actions which are “simply

a tolerable acknowledgement of beliefs widely held among

the people of this country,” are not per se an establishment

of religion. Marsh v. Chambers, 103 S.Ct. at 3336. It is

equally clear that the “limits of permissible state accom-

modation are by no means co-extensive with the noninter-

ference mandate by the Free Exercise Clause. To equate

the two would be to deny a national heritage with roots in

the Revolution itself. See Sherbert v. Verner, 374 U.S. 398,

423 (1963) (Harlan, J. dissenting); Braunfeld v. Brown,

366 U.S. 599, 608 (1961).” Walz v. Tax Commission,

*As Paul Kauper has written: “If the protection afforded in the

name of religious freedom against a state-prescribed, non-theistic

orthodoxy is that a person cannot be compelled to participate,

whereas the protection afforded in the name of the establishment

clause is that a person may demand that any exercise promoting

theistic belief be com y eliminated, the result is that the freedom

by the establi t clause is regarded as having a higher

value than the freedom protected by the free exercise clause.”

Kauper, Prayer, Public Schools and the Supreme Court, 61

Mich.L.Rev. 1030, 1063 (1962).

22

397 U.S. at 673. “There is room for play in the joints pro-

ductive of benevolent neutrality” towards religion. /d. at

669. This benevolence is mandated in the present case.

Governmental intrusion into the area of religion in con-

temporary society involves comparative religion, philoso-

phy, ethics, and values clarification courses. As Giannella

notes:

Unlike . . . other areas, formal public education does

not involve a pattern of — in which the place

of religion can be derived from secular catagories . . .

education directly touches upon religious concerns,

such as the meaning of existence and the sources and

nature of human values.

Giannella, Religious Liberty, Nonestablishment and Doc-

trinal Development—Part Il, 81 Harv.L.Rev. 513, 561

(1968).

Because of this entrance into the precinct of religion, it

is constitutionally impermissible for government fanatically

to seal religion from the classroom. Such a seculariza-

tion would prefer nonbelief over belief. Zorach v. Clauson,

343 U.S. at 314. Moreover, the Constitution does not

require “complete separation of church and state; it affirma-

tively mandates accommodation, not merely toleration, of

all religions, and forbids hostility towards any.” Lynch vy.

Donnelly, 104 S.Ct. at 1359 (emphasis supplied).

The requirement of affirmatively mandated accommoda-

tion is particularly relevant in education due to the impres-

sionable nature of the youths involved. Just as religious

indoctrination may convey—indeed inculcate—doctrines

contrary to the views of the children’s parents, here the

placing of the governmental hand upon the shoulder of a

young religious adherent for holding and expressing those

views would be equally inappropriate. In the past, this

23

Court has sought to “sponsor an attitude on the part of

government that shows no partiality to any one group and

that lets each flourish according to the zeal of its adherents

and the appeal of its dogma. When the state encourages

religious instruction or cooperates with religious authorities

by adjusting the schedule of public events to sectarian needs,

it follows in the best of our traditions. ... The government

must be neutral when it comes to competition between sects.

It may not thrust any sect on any person. . . . But it can

close its doors or suspend its operations as to these who

wish to repair to their sanctuary for worship and instruction.

No more than that is undertaken here.” Zorach v. Clauson,

343 US. at 313-314.

The school room is undoubtedly a “market place of

ideas.” This is the goal of the pluralism we profess. Ala-

bama’s solution, the accommodation of all creeds, while

espousing none, cannot help but to further the true spirit

of voluntarism, pluralism, and religious liberty. In this Re-

public, where large degrees of personal autonomy from

governmental restraints are normative and limitations upon

preferred freedoms are the exception, it is inappropriate “to

impose a crabbed reading of the [religion] clauses on the

country.” Lynch v. Donnelly, 104 S.Ct. at 1366.

IV.

Alabama’s Statutory Provision Allowing Meditation Or

Silent Prayer Does Not Violate The Lemon Tripartite Test.

A. ALABAMA Cope § 16-1-20.1 Serves

SECULAR EDUCATIONAL PURPOSES.

In the past, this Court has found it useful to inquire 1)

whether a challenged law or conduct has a secular purpose,

2) whether its principal or primary effect is to advance or

inhibit religion, and 3) whether it creates an excessive en-

24

tanglement of government with religion. Lemon v. Kurtz-

man, 403 U.S. at 612-613. However, as this Court has re-

cently noted, even where applicable, this “tripartite test”

provides “no more than a helpful ‘signpost’ in dealing with

Establishment Clause challenges.” Lynch v. Donnelly, 104

S.Ct. at 1367 (O'Connor, J., concurring); Mueller v. Allen,

463 US. ___, ___, 103 S.Ct. 3062, 3066 (1983); Hunt

v. McNair, 413 U.S. 734, 741 (1973).’

The first of those criterion, that the legislation or con-

duct have a secular purpose, is easily met. Undoubtedly

“the definition of ‘secular’ here must be a generous one. .

[otherwise]... virtually nothing that government does

would be forbidden because they overlapped the fifth com-

mandment of the Mosaic Decalogue.” L. Tribe, American

Constitutional Law 835 (1978).

Prayer is a patently religious activity. Meditation may

or may not be. _Used in its ordinary sense, “meditation”

and Marsh v. Chambers, 103 S.Ct. at 3330, this Court did not

25

contemplate anything that he desires. Thus, the words...

[meditation or silent prayer]. . .are capable of a reasonable

construction by which the constitutional difficulties raised

by the plaintiffs may be avoided. See, e.g., Curtis v. Loether,

415 U.S. 189, 192, n.6 (1974).” Gaines v. Anderson, 421

F.Supp. 337, 342 (D. Mass. 1976).

Plainly, those who do not wish to pray are free to con-

template anything they want. Reed v. Van Hoven, 237

F.Supp. 48, 56 (W. D. Mich. 1965). Because of this, there

is no element of peer-pressure:

If a student’s beliefs preclude prayer in the setting of a

minute of silence in a schoolroom, he may turn his

mind silently toward a secular topic, or simply remain

silent, without violating the statute . . . or facing the

scorn or reproof of his classmates.

Gaines v. Anderson, 421 F.Supp at 345. Accord, Choper,

Religion in the Public Schools: A Proposed Constitutional

Standard, 47 Minn.L.Rev. 329, 371 (1963). Thus, the

content of the “meditation or prayer” may be wholly secu-

lar, or wholly religious, depending on the individual’s exer-

cise of conscience.

An important secular interest furthered by this legisla-

tion is that of recognizing religious liberty. It is inconsistent

to insist that the concept behind the Free Exercise Clause

has a necessarily religious purpose. If it does, then the

Lemon test is fatally flawed. It is obvious that the estab-

lishment of the freedom to believe or not to believe is not

an establishment of religion. If this were not so, the Free

Exercise Clause and the Establishment Clause would be

incompatible. Such self-invalidation is a constitutional ab-

horrence. A moment of silence for meditation or silent

prayer is a reasonable accommodation of the spiritual or

non-spiritual needs of students which avoids such anom-

26

alies. See, e.g., Note, Religion and the Public Schools, 20

Vand.L.Rev. 1078, 1092-93 (1967); P. Freund, Religion

and the Public Schools, 23 (1965); Kauper, supra; Com-

ment, Accommodating Religion in the Public Schools, 59

Neb.L.Rev. 425, 450-462 (1980).

Several other secular educational functions are more ob-

vious. As this Court noted over two decades ago: “A quiet

moment at the beginning of the day would tend to ‘still the

tumult of the playground and start a day of study.’ ” School

District of Abington Township, Pa. v. Schempp, 374 U.S.

at 281 and n. 57 (1963) (Brennan, J., concurring). Fur-

thermore, the legislature could reasonably believe that stu-

dents tend to learn greater self-discipline and respect for

the authority of a teacher from a required moment of si-

lence. Gaines v. Anderson, 421 F.Supp. at 342. Surely, it

is consistent with the public schools secular educational

goals to encourage students to turn silently towards serious

thoughts and values. /d. at 343.

Another secular purpose also exists. It is that purpose

which is analogous to “those governmental acknowledge-

ments of religion [which] serve, in the only ways reasonably

possible in our culture, the legitimate secular purpose of

solemnizing public occasions, expressing confidence in the

future, and encouraging recognition of what is worthy of

appreciation in society.” Lynch v. Donnelly, 104 S.Ct. at

1369 (O’Connor, J., concurring). Accord, School District

of Abington Township, Pa. v. Schempp, 374 U.S. 203.

Such a recognition of our religious-cultural heritage is

clearly a legitimate educational goal.

B. ANY ADVANCEMENT OF RELIGION BY A MOMENT OF

SILENCE Is MERELY De Minimus AND INCIDENTAL.

A moment of silence provides no opportunity for in-

culcation or indoctrination. The entire exercise is content

27

neutral and uniquely voluntary. It does not have the primary

effect of advancing a state religion, or religion in general.

It is neutral as between belief and non-belief. It coerces no

one. Providing a forum for an exchange of ideas or silence

“does not confer any imprimatur of state approval on re-

ligious sects or practices.”* Widmar vy. Vincent, 454 US.

263, 274 (1981). It fosters religious freedom. As Justice

Brennan has noted: “It has not been shown that. ..the

observance of a moment of silence at the opening of class,

may not adequately serve...solely secular purposes...

without jeopardizing either the religious liberties of any

members of the community or the proper degree of separa-

tion between the spheres of religion and government.”

School District of Abington Township, Pa. v. Schempp, 374

U.S. at 281. Any reverent attitude which would prevail

during the silent period would be merely incidental to the

secular purpose of the quieting of the students. Note,

Supra, 20 Vand. L.Rev. 1078 (1967).

C. THERE Is No ENTANGLEMENT ISSUE PRESENTED HERE.

The entanglement prong of the Lemon “test” is inappro-

priate here. The entanglement “test” was uniquely adopted

in the instances where administrative entanglements or

political divisiveness arise. Lynch v. Donnelly, vJD S.Ct. at

1364-1365. Because there are no such entanglements in this

case, it is inappropriate to use it in this analysis. In addi-

*The imprimatur of state approval or disapproval is particularly

relevant in this case because of certain findings of fact made at the

trial court level. In the companion case, Jaffree v. Board of School

Commissioners of Mobile County, 554 F. Supp. 1104 (S.D. Ala.

1983), specific findings of fact were made that a state religion was

being established in Alabama schools. The trial court found that a

“religion of secularism”—secular humanism—was being promoted

through the organs of the state. See Id. at 1129-1130, n. 41. Cf.

Torcaso Vv. Watkins, 367 U.S. 488, 495, n. 11 (1961). Clearly such

indoctrination is improper.

28

tion, it should be noted that a unique barrier stands between

the state and religion in this instance—-silence. In a very real

way, the individual religious adherent is insulated by silence

from intrusion. Entanglements are impossible because of the

nature of this exercise.

CONCLUSION

Clearly, “[t]he purpose of the establishment clause was

not to extirpate religion from public life.” Comment, Secu-

larism in the Law: The Religion of Secular Humanism, 8

Ohio N.U.L.Rev. 329 (1981). The mind frame of those

who directed the constitutional era and the drive toward

separation of church and state “was, in some respects, anti-

clerical, as a result of Papism, Cromwellism, etc., but never

antireligious, so that some interrelating and intermeshing of

state and religion have always been with us.” Forkosch,

Religion, Education, and the Constitution—A Middle Way,

23 Loyola L.Rev. 617 632 (1977).

The Framers sought to avoid the kind of hostility found

in this case by accommodating the religious interests of

the people. There was no intention on the part of the

Framers to censor or eradicate religion from education. And

such has never occurred. The rule of separation that the

Framers had in mind when they drafted the First Amend-

ment was to be implemented in a climate of accommodation

and benevolence, not of hostility toward religion.

Appellees reasoning runs contrary to this central his-

torical and political truth. Such reasoning amounts to a

de facto establishment of what this Court has previously

identified as a “religion of secularism,” School District of

Abington Township v. Schempp, 374 U.S. at 225, which

seeks fervently to eradicate all mention of religion from

public life. See also Giannella, supra, 81 Harv.L.Rev. at

29

586-587 and Torcaso v. Watkins, 376 U.S. at 495, n. 11.

As Harvard professor Harvey Cox has noted, secularism

is an “ideology, a new closed world view which functions

very much like a new religion. ...It is a closed ism.” H.

Cox, The Secular City 18 (1965). “It is a menace to free-

dom because it seeks to impose its ideology through the

organs of the State.” /d.

Here, the State of Alabama did nothing more than ac-

commodate in neutral fashion the cultural-historical-reli-

gious elements of America’s past and present. As Kauper

has noted, by way of such accommodation governments are

“cuntributing to religious freedom and making it more

meaningful.” P. Kauper, Civil Liberties and the Constitu-

tion 10 (1962).

When the people of Alabama ratified their Constitution,

they echoed the religious beliefs of the Framers of the

Federal Constitution. In their preamble they proclaimed:

We, the people of the State of Alabama, in order to

establish justice, insure domestic tranquility, and se-

cure the blessings of liberty to ourselves and our poster-

ity, invoking the favor and guidance of Almighty God,

do ordain and establish the following Constitution and

form of government for the State of Alabama.

Ala. Const. of 1901, Preamble, Ala. Code, Vol. 1. In

ratifying the Bill of Rights, their descendants never

imagined that one day the United States Constitution

could be argued in such a manner as to limit the display of

the faith they proclaimed, much less prohibit a moment of

silence in their public schools.

30

It is, therefore, €. ‘ential that the conflict be resolved in

favor of the appellants.

; TEHE

JAMES J. KNICELY

Participating Attorneys for

The Rutherford Institute

P.O. Box 510

Manassas, Virginia 22110

Attorneys for Amicus Curiae

The Freedom Council

P.O. Box 64323

Virginia Beach, Virginia 23464