U.S. 38 (1985)
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
Engel v. Vitale (1962), a state may not sponsor public
school prayer. But may a state authorize public schools
to set aside a moment of silence in which students can meditate—
or pray? In Wallace v. Jaffree, the Supreme Court
said no. The case did not promise to be the last word on
"moment of silence" laws, enacted by numerous states; the
opinions in the case in fact suggested that a majority of
the Court would have approved such a law had the one under
inspection—Alabama's—been crafted differently. The doctrinal
importance of Jaffree lay in the fact that the Court
now seemed to put an end to the precedent-shattering suggestion
in Marsh v. Chambers (1983) that government might
support religion after all.
Jaffree of Mobile County, Alabama, sued on behalf of his
three children, all in public schools, challenging the constitutionality
of three Alabama statutes: §16-1-20, enacted in 1978, which
authorized a one-minute period of silence in all public
schools "for meditation"; §16-1-20.1, enacted in 1981, which
authorized a period of silence "for meditation or voluntary
prayer"; and §16-1-20.2, enacted in 1982, which authorized
teachers to lead "willing students" in a prescribed prayer
to "Almighty God . . . the Creator and Supreme Judge of
the world." The federal district court concluded that, because
the ban on establishment did not apply to the states, Alabama
had the power to establish religion.
was a remarkable judgment. Lower courts almost always adhere
to the decisions of the U.S. Supreme Court, but in this
instance the district court had declared, in effect, that
it was not to be bound by Cantwell v. Connecticut
(1940) and Everson v. Board of Education (1947),
the two cases applying the religion clause to the states.
Indeed, the district judge challenged Everson, declaring
that the Court had "erred in its reading of history." The
U.S. Court of Appeals for the Eleventh Circuit reversed
the lower court on the issue of Alabama's power to establish
religion (thus reaffirming Everson) and held that
16-1-20.1 and 16-1-20.2 were unconstitutional. In 1984 the
Supreme Court affirmed the appeals court's ruling in respect
to 16-1-20.2, limiting argument to 16-1-20.1, the "moment
of silence" statute. It is this law that the Court, by a
6-to-3 vote, deemed unconstitutional in Jaffree.
Polls taken since the Court's school-prayer decision in
Engel v. Vitale (1962) had produced consistently
large majorities favoring the reintroduction of formal prayer
in the public schools, and numerous state legislatures,
like Alabama's, had passed laws aiding religious practices
and schools. The 1980 election of Ronald Reagan and the
development of a litigating capability on the part of cultural
conservatives did not bode well for the strict "separationist"
position. Indeed, by 1985 the new administration had won
from the Supreme Court more "accommodationist" decisions
in Mueller v. Allen (1983), Marsh v. Chambers
(1983), and Lynch v. Donnelly (1984). In Jaffree,
the original school prayer and Bible-reading cases seemed
vulnerable. But the decision disappointed those who hoped
the Court would alter its establishment jurisprudence by
lowering Everson’s famous "wall" separating church
case produced six opinions, all of which are presented here.
Justice John Paul Stevens wrote for the Court, expressing
the views of five members. Justice Lewis Powell, concurring
in the judgment and the opinion, and Justice Sandra Day
O'Connor, concurring in the judgment, also wrote separately.
Chief Justice Warren Burger, Justice Byron White, and Justice
William Rehnquist each filed dissents. The opinions are
followed by commentary from The Christian Century,
the Wall Street Journal, and a syndicated column
by George Will.
opinion for the the Court advanced the usual separationist
arguments. The most notable opinion in the case was Rehnquist's
dissent, the first opinion by any justice since Everson
to challenge Everson's history, which Rehnquist said
was "totally incorrect." Upon examination of the original
First Amendment history, Rehnquist advanced the "no preference"
understanding of the establishment prohibition. His opinion
provoked scholarly discussion in law reviews and, in Lee
v. Weisman (1992), a lengthy response in an opinion
by Justice David Souter (see Case 25).
in Wallace v. Jaffree, decided June 4, 1985, were
Chief Justice Warren E. Burger and Associate Justices Harry
A. Blackmun, William J. Brennan, Jr., Thurgood Marshall,
Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist,
John Paul Stevens, and Byron R. White.