Date: Wed Oct 08 09:11:22 1997
To: Frank Grose
From: Rob Weinberg
Frank,
Here is the first of the two memos I referred to that I wrote nearly ten years ago. The law hasn't changed.
Attachment: school.prayer.wpd;
TO: Don Siegelman, Attorney General
Walter S. Turner, Chief Assistant Attorney General
FROM: Robert M. Weinberg, Assistant Attorney General
DATE: August 31, 1989
RE: Prayer in Public Schools and Institutions
In Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989), the Eleventh Circuit held that a Georgia high school's practice of having religious invocations delivered prior to public high school games violated the Establishment Clause of the First Amendment. The Supreme Court denied certiorari. Arguments presented by the school district such as the fact that attendance at the games was voluntary; that the prayer or invocation was essentially non-sectarian (i.e., denominationally neutral); and that it occurred outside the classroom setting were all rejected by the Eleventh Circuit.
The primary question is whether state action appears to have the purpose, intent or effect of endorsing religion or a theistic belief system at all, and whether there is any secular purpose which can not be achieved by other than religious means. Edwards v. Aguillard, 482 U.S. 578, 585 (1987); Wallace v. Jaffree, 472 U.S. 38 at 56 (1985); Jager, 862 F.2d at 830; cf. County of Allegheny v. Greater Pittsburgh A.C.L.U., ___U.S.___ (Decided July 3, 1989) (deciding constitutionality of city-county displayed creche and menorah during Christmas-Hanukkah season). The question is not whether one religion is established over another or to the exclusion of others, but whether any religious belief system is fostered or endorsed through state or governmental action. Jaffree, 472 U.S. at 52-53.
Governments are constitutionally mandated to "pursue a course of complete neutrality toward religion." Jaffree, 472 U.S. at 60. In the context of public schools, the courts have been "particularly vigilant" in enforcing the Establishment Clause. Edwards, 482 U.S. at 583-584. The fact that a prayer or invocation sponsored or endorsed through state action is denominationally neutral and voluntary is irrelevant and will not be enough to "free it from the limitations of the Establishment Clause...." Engel v. Vitale, 370 U.S. 421, 430 (1962), so long as the action is void of a secular purpose, and has the purpose or effect of endorsing religion.
Alabama statutes pertaining to periods of silence for meditation or voluntary prayer such as Code of Alabama, 1975, §16-1-20.1, and officially written or sponsored prayers such as Code of Alabama, 1975, §16-1-20.2 have been held unconstitutional by the Supreme Court. Wallace v. Jaffree, 472 U.S. 38 (1985). What may be unclear is whether school sponsored moments of silence which do not invoke religious sentiment will similarly be held unconstitutional.
Alabama does have a "moment of silence for meditation" law which is still on the books, see Code of Alabama, 1975, §16-1-20, but that may be only because it has not been challenged fully in the courts. Jaffree, 472 U.S. at 40 n.1. In other circuits, nearly identical laws and practices have been struck down. See e.g., May v. Cooperman, 780 F.2d 240 (3rd Cir. 1985), appeal dismissed sub. nom. Karcher v. May, 98 L.Ed.2d 327 (1987).
Arguably, pre-game invocations may have valid secular purposes such as to raise school spirit, sense of community pride, sportsmanship, patriotism, etc. But these purposes can be achieved in ways other than by invoking the blessings of any deity. Cf., County of Allegheny, slip op. at 41. ("The absence of a more secular alternative symbol is itself part of the context in which the city's actions must be judged...."). Thus, a pre-game warm up speech, or call for sportsmanship and a recitation of secular values such as honesty and fair play, hard work and patriotism is constitutionally acceptable so long as an invocation of religious belief is not the means whereby the message is conveyed. See, e.g., Stone v. Graham, 449 U.S. 39 (1980); and see, Jager, 862 F.2d at 830.
Even where valid secular purposes are articulated, the courts will ask "whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion]." Jaffree, 472 U.S. at 56 n. 42; Jager, 862 at 831; see also, Lynch v.Donnelly, 465 U.S. 668 at 690 (1984) (O'Connor, J., concurring). This is known as the "effects" test. If the state or government sponsored activity has the effect of endorsing religious beliefs, even if a valid secular purpose is recognized, it can not pass constitutional muster. Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 690 (11th Cir. 1987).
It is irrelevant who owns the property upon which the alleged violation of the Establishment Clause occurs. The focus is not on the ownership (e.g., use of a city facility for a county high school football game); rather the focus is on the sponsorship of the event or activity. See, Jager, 862 F.2d at 831. Thus, last week when City of Montgomery Mayor Emory Folmar recited a prayer prior to the commencement of a county high school football game, the fact that it occurred on city property will not be available to the school board as a defense to a lawsuit challenging high school pre-game invocations. Indeed, the mayor's participation may be viewed by the court, depending upon the proof, as city endorsement of religion subjecting the city itself to liability. Because the city and county of Montgomery share one school system, it is quite likely that a federal court could find the city, as well as the county and school board, in violation of the Establishment Clause.
Furthermore, to persons of any age who do not believe in prayer, religious invocations ... convey the message that the state endorses religions believing in prayer and denigrates those religions that do not. If these prayers are delivered by authority figures, such as teachers [or the mayor],... the message endorsing prayer becomes even stronger.
Jager, 862 F.2d at 832.
As an aside it should be noted that state and local governments are not alone in having their actions or statutes challenged under the Establishment Clause of the First Amendment. The federal government has also been subject to constitutional challenges on the basis that a particular statute, practice or public benefit has the purpose or effect of endorsing religion. See e.g., Bowen v. Kendrick, 487 U.S. ___, 101 L.Ed.2d 520 (1988).
There do appear to be exceptions to the general prohibition on theistic invocations recognized by the Supreme Court either in answer to specific challenges, or acknowledged in dicta. For example, the Court has held that the practice of state legislatures of opening each legislative day with a non-sectarian prayer led by a chaplain who is paid by the state is not violative of the first amendment prohibition on the establishment of religion. Marsh v. Chambers, 463 U.S. 783 (1983).
To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.
Marsh, 463 U.S. at 792. Construing Congressional intent, the Court noted that during the same week that Congress approved the final version of the First Amendment for adoption by the states, it also passed a bill authorizing payment from the federal treasury for the services of a chaplain. Id., at 790-791.
The holding in Marsh however, premised upon two hundred years of "unique" historical tradition is of limited applicability in the context of school prayer and other types of Establishment Clause cases, and has not been cited by the Court as dispositive or authoritative in any of its subsequent cases. See, Allegheny County v. Greater Pittsburgh A.C.L.U., slip op. at 26 n. 52:
It is worth noting that just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional... Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct.
The Court has also acknowledged and distinguished what seem to be obvious inconsistencies between the holdings in various of its cases and other "accepted" practices of theistic invocation such as the printing of "In God We Trust" on United States currency, and the official proclamation of Thanksgiving, including its religious significance as a national holiday, see Lynch v. Donnelly, 465 U.S. at 674-678. Federal courts and the United States Supreme Court open court sessions with "God save the United States and this honorable court," Lynch, 465 U.S. at 693 (O'Connor, J., concurring); and the Declaration of Independence and our country's national anthem contain references to God, Engel v. Vitale, 370 U.S. at 435, n.21; as does, by statute, the Pledge of Allegiance to the flag, Lynch, 466 U.S. 716 (Brennan, J., joined by Marshall and Blackmun, JJ., dissenting).
Other examples, surely, abound, but it has been held, or at least tendered, that these forms of "ceremonial" invocation of deism in fact serve a secular purpose, one of inspiring national commitment to meet a common challenge, patriotism and a sense of common tradition, or of solemnizing public occasions, as opposed to endorsing religious faith. Id. While the Court may or may not be able to explain such discrepancies to the satisfaction of all its detractors, it has consistently held state government to the strictest scrutiny when it comes to the public education of our nation's youth:
Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary... The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure... Furthermore, "[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools...."
Edwards v. Aguillard, 482 U.S. at 584 (citations omitted). The cases construing the Establishment Clause seek to avoid the conflict and divisiveness inherent in persons of different religious, including non-religious, beliefs; not to stifle the free expression of individual religious belief as the detractors of these decisions would argue.
Our country was founded by people who knew, firsthand, religious persecution, and what it meant to have unwelcome religious doctrine forced upon them unwillingly. Some of the most ardent supporters of the First Amendment were also the most deeply religious of our founding fathers.
These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thought that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.
Engel v. Vitale, 370 U.S. 435. The Establishment Clause may not be popular with the majority in this country, but then, the majority does not need its protections.
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