Wallace v. Jaffree - Oral Argument

ORAL ARGUMENT OF JOHN S. BAKER, JR., ESQ. ON BEHALF OF APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Wallace v. Jaffree and the consolidated case.

Mr. Baker, you may proceed whenever you are ready.

Mr. Baker: Mr. Chief Justice, and may it please the Court:

The question in this case is whether a statute providing a minute of silence for meditation or voluntary prayer constitutes an establishment of religion, or whether it constitutes a common sense accommodation of the religious diversity of our people which is consistent with the purposes of the religion causes.

Alabama statute provides an opportunity to pray for so minded students, but this opportunity to pray is one that is perfectly consistent with the letter and the spirit of this Court's cases under the establishment clauses.

Moreover, we submit that this type of accommodation is one that is perfectly consistent with the spirit of the religion clauses in that it promotes pluralism which pervades both of the religion clauses.

This type of a statute involves none of the circumstances that have concerned this Court in prior cases.

This kind of a statute does not endorse religion, it does not endorse one religion over another, it does not endorse belief over nonbelief.

This kind of a statute is perfectly neutral on its face.

The statute is one that does not coerce in any way; it coerces only silence.

It does not coerce any religious practice, it does not coerce religious belief, it does not affirm religious belief.

It is in the nature of a statute neutral in that it respects the consciences of all students equally by allowing them either at their own choice to say a prayer in silence or to say or simply to meditate during this one moment, this one minute at the beginning of the day.

In addition to Alabama, there are 23 other states that have found that providing a moment of silence is a reasonable way to accommodate the various desires and needs of children in the public schools in a way that the states have deemed to be consistent with the case law in this Court.

Unidentified Justice: Of course, some of those other states didn't have your accompanying statutes, did they, the ones that have been declared invalid.

Mr. Baker: Alabama had several statutes--

Unidentified Justice: --had a package.

Alabama had rather a package.

Mr. Baker: --They were not passed as a package, Your Honor.

They were passed in various years.

There was first of all a moment of silence statute passed in 1978.

There was this statute which was passed in 1981.

There was a prayer statute which was struck down by the Eleventh Circuit which was passed in 1982, but they were not presented as a package.

They were lumped together in the course of litigation, Your Honor, yes.

The issue in this case--

Unidentified Justice: Well, my only point is that your Alabama situation may be somewhat different from Massachusetts or some of the others which have just the single statute.

Mr. Baker: --Your Honor, I think if you look at the legislative history in Massachusetts, you will find that there are certain parallels.

Massachusetts started out with a moment of silence statute in 1966.

They later amended that statute to add meditation or prayer, and later on they also attempted later on to amend the statute--

Unidentified Justice: Is this true of all the other 36 states?

Mr. Baker: --No, Your Honor, it is not true of all the other states.

Unidentified Justice: I didn't think it was.

Mr. Baker: The issue in this--

Unidentified Justice: Mr. Baker, may I inquire of whether the statute that Alabama already had providing for a period of silence not to exceed a minute would have been violated under state law by the use of that statute for silent prayer?

Mr. Baker: --No, it would not have, Your Honor.

In fact, the Appellee concedes that the 1978 statute which provided for a minute of silence simply for meditation is perfectly constitutional.

Really, the difference between the Appellee and ourselves in this case comes down to the word "prayer" in the statute.

First of all, the Appellee proceeds--

Unidentified Justice: May I ask one other question before you get into your argument?

Mr. Baker: --Justice Stevens, yes, sir.

Unidentified Justice: As to the... similar to Justice O'Connor's question, the earlier statute, '78 statute, says that teachers shall announce.

Mr. Baker: Yes, Your Honor.

Unidentified Justice: Whereas this one, the second statute, does not say that.

Does the first statute remain in effect?

Is there still a duty to announce?

Mr. Baker: Your Honor, the first statute is still in effect, but the statutes are basically self-executing in the sense that the State Board of Education does not enforce the statutes.

There are several references to this in the opinion of the Court of Appeals and in the lower court.

Unidentified Justice: But in the earlier statute, the one not challenged, the teacher was under an obligation, a mandatory obligation to make this announcement.

And is that still true?

Mr. Baker: It is still true, Your Honor, but just to add, the first statute was in fact originally challenged by the Appellee in his Second Amendment complaint.

He later dropped that challenged and now concedes the constitutionality of that first statute.

Unidentified Justice: I understand.

Mr. Baker: The difference between the Appellee and our own position on this question really comes down to the significance of the word "prayer" in the statute.

As I have already said, the Appellee concedes the constitutionality of the moment of silence statute for meditation, and the Appellee also concedes that students have a right to pray silently to themselves at any time that they would wish to during the school day.

Obviously, then, during this one minute of silence, the students, even under the 1978 statute, the statute providing only for silent meditation, the student would have the right during that minute to pray silently.

In other words, the effect under either statute, under the 1978 statute or the 1981 statute, is the same as far as the classroom goes.

The difference comes down to that one-word prayer in the statute, but certainly it cannot be unconstitutional simply to insert in a statute a statement that it is constitutional... what is constitutionally permissible.

In other words, the statute merely informs students that one of the purposes that they can put this minute of silence to is that they can use it to pray silently during that minute.

This opportunity for prayer is not, as the Appellee has suggested, one of group prayer.

We have here none of the characteristics of group prayer.

It is not vocal prayer.

No one student knows what another student is saying, is thinking, or whether that student is praying, whether the student is meditating, whether the student is simply vegetating for that one minute.

Because no student knows what another student is doing during that period of time, there is not the problem of coercion that concerned this Court in earlier cases.

We do not have here a joint effort or joint purpose as among the various students in the classroom for that one minute.

There is, in other words, no communal effort.

It does not involve any of the characteristics that this Court discussed in Engel and in Shemp, and we submit on this basis that this statute is essentially different.

By providing an opportunity to pray, we submit that the statute is in the line of cases including Zorach where this Court has recognized that it is perfectly consistent for states to in certain areas accommodate the religious needs of our people.

In this area of accommodation, we find that the statute accommodates those admittedly who have this desire to pray, but it does so in a way that in no way interferes with the free exercise of rights of anyone else in the class.

It does not present the problem of embarrassment or excusing students as was a problem in the earlier cases.

The statute does in fact, as indicated, leave to the teacher a certain discretion in the sense that this statute is permissive.

It says that a teacher may implement this minute of silence.

This statute, however, is not inconsistent with the notion that local school boards in their independent areas would or could adopt regulations dealing with the implementation of the statute.

But the sense of the statute is that this moment of silence should be allowed for students who wish to have their religious needs accommodated during the day.

We see no difference constitutionally between a statute which is permissive, as this statute is in the sense that it has the word "may" in it, as opposed to a statute which is mandatory, as was indicated in one of the questions.

We have from the 24 states that have moment of silence statutes, we have a variety of language in those statutes.

In some of the states the decision is made by the state legislature.

In other states the decision is made by the state school board or the local school board.

It may be made by the principal.

It may be made by the teacher.

In viewing these statutes in terms of the fact that we have 24 states which have deemed this to be a proper, reasonable way to accommodate, we have to take into account the fact that there are various conditions from state to state, and that the statute may in fact be implemented in somewhat a different way in various states depending upon the local needs.

Unidentified Justice: May I ask you a question here, too, because you point out there is a very narrow difference between the two statutes in constitutional terms.

Mr. Baker: Yes, sir.

Unidentified Justice: What is the practical difference between the two?

What has the legislature accomplished by passing the second statute?

Mr. Baker: Your Honor, it was very clear from the testimony of the sponsoring legislator here that he was concerned that people did not understand that they had a right to pray silently in the classroom, and many people are under the impression apparently that students no longer even have the right to pray silently.

What this statute does is to clarify that and make it very clear on the face of the statute that this is one of the uses to which the minute of silence can be put.

It does so in a way that is neutral because it at the same time emphasizes the word "meditation" already in the statute.

This statute, this opportunity to pray, was struck down by the Eleventh Circuit on its face in this case.

The Eleventh Circuit recognized that the teacher activity in Mobile, in the Mobile schools that were challenged in the other part of the case were not related to this statute.

We thus have in this case no real experience; there is nothing indicated on the record in this case as to the implementation of this kind of statute.

And we submit that at this point, that this Court ought to allow and recognize the constitutionality of this statute and allow for it to be implemented.

We recognize that any sort of statute which deals with the area of prayer is one that is obviously a controversial one, and there--

Unidentified Justice: Mr. Baker, may I ask you another question because I am still troubled by the narrow difference between the two states.

You say the idea of the sponsor was to make sure that prayer was a permissible activity pursuant to the statute.

Mr. Baker: --Yes, Your Honor.

Unidentified Justice: Is that... is it your view that the students in the classroom are aware of that purpose?

Mr. Baker: Aware of the purpose that that is a--

Unidentified Justice: That that's the difference between the way it used to be before 1981 and the way it is after 1981?

Mr. Baker: --There's no indication in Mobile, for instance, that either statute has ever been implemented.

In fact, the testimony in the record is to the effect that neither statute has been implemented, so that we have no experience in this record on either the moment of silence statute or the meditation or prayer statute.

Unidentified Justice: So we don't know as a practical matter whether there is a difference between the two in their practical operation.

Mr. Baker: Not on this record we do not, Your Honor.

This opportunity to pray, we submit to the Court, is one that is consistent with this Court's cases dealing with the notion of accommodation, and as this Court recognized in Lynch v. Donnelly, the Constitution affirmatively mandates accommodation, not merely a tolerance of all religions, and forbids hostility towards none.

We submit that this kind of a statute is that type of accommodation which accommodates those who feel in conscience compelled to dedicate their day at the opening with a brief moment of prayer, while at the same time allowing other students to silently reflect during that minute, and in no way does the statute involve any sort of--

Unidentified Justice: How about the student that doesn't believe in prayer or meditation?

Mr. Baker: --That student can simply stand there for one minute, Your Honor.

During that minute he is in no way embarrassed, he is in no way coerced to do anything.

The only coercion involved on the student during that minute is that he engage in no activity.

Unidentified Justice: But there is no accommodation for him at all except that he can be standing there as an individual?

Mr. Baker: Exactly, Your Honor.

He is simply standing there during a moment of silence.

That moment of silence is obviously applicable to everyone.

The only group unity here is the unity of silence for one minute.

Unidentified Justice: May I ask why you say they will be standing?

The statute doesn't say what the posture of the people will be.

Mr. Baker: You are perfectly correct, Your Honor, you are perfectly correct.

It could be that they would be sitting during that period of time, depending upon whatever the teacher's normal course of opening the day would be, assuming Pledge of Allegiance and other opening activities.

Unidentified Justice: They would stand for the Pledge of Allegiance, I suppose, and then maybe continue this, or would the prayer come first, the moment of silence come first?

Mr. Baker: The statute does not indicate any order, Your Honor.

That is left to the discretion of the teacher as to how it would be implemented.

Unidentified Justice: Would you be making the same argument if the statute said not exceeding five minutes?

Mr. Baker: Your Honor, the statute does deal only with one minute and not five minutes.

Certainly the longer a statute goes, the more you get into the question of how long is an appropriate time.

But when we compare this, for instance, to the Zorach case where you release students for an hour a week, it seems that one minute a day does not appear to be unreasonable at all.

Thank you, Your Honor.

Unidentified Justice: May I ask one other question?

Would the state's purpose be equally well served by a statute that allowed this moment or two or three moments immediately before school commenced so that it would be totally optional as to whether to attend or not?

Mr. Baker: Your Honor, I think that raises the question of equal access, which is not this statute, it is a different statute.

I think that that kind of a statute would be perfectly constitutional, but that is a different issue, Your Honor.

Unidentified Justice: My question was whether you think the state's purpose would be equally well served by such a statute.

Mr. Baker: That might be one of the ways to serve it, and I think it would be constitutional, but I think this is equally--

Unidentified Justice: The question is whether you think it would be equally well served by such a statute.

Mr. Baker: --Your Honor, I think that is a policy judgment for the legislature to make.

Unidentified Justice: You are not willing to answer my question, I guess, whether you as advocating the constitutionality of this type of statute think that the state's purpose would be equally well served by such a statute.

Mr. Baker: I think there are some students who want to start the main work of the day during a minute of silence, and prior to class that is not starting the main work of the day.

So I think there is a slightly different purpose, yes, Your Honor.

Thank you.

Chief Justice Burger: Mr. Bator?

ORAL ARGUMENT OF PAUL M. BATOR, ESQ. AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

Mr. Bator: Mr. Chief Justice, and may it please the Court:

I might start by supplementing the colloquy about the relationship between these two statutes.

The new statute made three changes.

It said that the practice of the moment of silence is discretionary rather than mandatory.

The old statute applied only to grades one through six, so this statute generalized the moment of silence to all of the school grades.

And finally, the statute added the, what I think is really the purely informational addendum, that it is one of the appropriate uses of the moment of silence that so minded students may use it for silent prayer.

Unidentified Justice: Mr. Bator, if the teacher chooses to have a moment of silence, must the teacher say what it is for?

Mr. Bator: The statute doesn't specify, Your Honor, and I think that it simply remains in the future to see whether this teacher will make some explanation of what it is all about.

I don't--

Unidentified Justice: Well, isn't it... wouldn't the issue change a little at least if the teacher had to announce what it was for, or that it is discretionary?

Mr. Bator: --We don't believe that it would matter constitutionally.

Unidentified Justice: Well, I know, I know you believe that, but wouldn't the issue be... wouldn't it have a different, a little bit different ring to it?

Mr. Bator: Maybe.

It seems to us the central question here whether the teacher in some way respects the spirit of the statute, which is to mandate and establish one simple practice, a moment of absolute stillness.

Unidentified Justice: Also, may I ask, when this case started, the attack was on the teachers' practices in the school of having a prayer, wasn't it?

Isn't that right?

Mr. Bator: I think the original lawsuit challenged what went on, what was alleged to go on in some Alabama schools, which was vocal prayer.

Unidentified Justice: Well, what is the case or controversy between... what was the case or controversy with respect to the moment of silence statute?

So far as I can tell, it was never... that the statute was never applied in the school.

Mr. Bator: Well, Your Honor, the lawsuit was brought to enjoin the state authorities--

Unidentified Justice: Well, I know you just can't page through a statute book and pick out some statute you don't like and sue to enjoin it.

You have to have a case or controversy.

What was the case or controversy between this plaintiff and the state or the school about this statute?

Mr. Bator: --The case or controversy, as I understand it, Your Honor, was that the plaintiff said that it violates the Constitution for the state--

Unidentified Justice: Well, I know, but it had never been applied to them.

Mr. Bator: --Well, the suit was brought very shortly after the new statute was passed and the complaint was amended to challenge it.

The state of Alabama is now under an injunction preventing it from enforcing the statute on the ground that it violates the establishment clauses.

I mean, at that point there must be a case or controversy with respect to whether that injunction may continue in place.

Unidentified Justice: Well, it may be that the District Court made a mistake in saying there was a case or controversy.

Mr. Bator: That may be, Your Honor, but the District Court and the Eleventh Circuit concluded that this statute is unconstitutional on its face, and it is--

Unidentified Justice: Well, were there allegations in the complaint that the statute was about to put the statute into operation?

Mr. Bator: --I don't know, Your Honor, I don't know, Your Honor.

Unidentified Justice: Mr. Bator, there is no question that the purpose of this, that it was not for silence, or am I wrong, does the teacher have a right in the public schools of Mobile to tell the children to shut up for the next five minutes, and I don't want to hear a sound out of you, without a statute?

Can't they do that without a statute?

Mr. Bator: It may be that they were free to do that, but what this statute--

Unidentified Justice: You say maybe?

Have you ever heard of a teacher that didn't have that authority?

0 [Generallaughter.]

Mr. Bator: --Your Honor, the statute institutionalizes and puts the sanction of state policy behind a practice.

Unidentified Justice: The state policy is that you can have a moment of silence for prayer.

Mr. Bator: The state policy is that you may start the school day for a moment of silence within which so minded students who are under a claim of conscience have an opportunity to pray or meditate, all--

Unidentified Justice: Didn't they have that right before the statute?

Mr. Bator: --I suppose.

I don't know what the practice in the Alabama schools is, Justice Marshall.

Unidentified Justice: Well, didn't the children in Alabama have the right to pray silently before the statute was passed?

Mr. Bator: Yes, Your Honor, it is the case that without this statute, long before this statute, after this statute, children have a right in the Alabama schools to pray silently, and of course, in that sense it is false to say what is always said, that it is this statute that has brought prayer in to the Alabama schools.

But what the Alabama legislature has concluded, Justice Marshall, and 23 other states have, is that the opportunity to pray is enhanced, made easier, made somewhat more natural.

A modern American school is a very busy and a very noisy place.

It is not easy to find a moment of respite and serenity within which those students--

Unidentified Justice: Mr. Bator, let me just be sure I understand the point you are making.

Is it made easier by the 1978 statute or by the 1981 statute?

Mr. Bator: --Either one, either one.

Unidentified Justice: And you think the difference between a moment of meditation and the wording in the other is what creates this change.

Mr. Bator: No, Your Honor.

We think that what was in the new statute was already implicit in the other, that there is--

Unidentified Justice: And you said, when you mentioned the three points... and I want to be sure I get a chance to ask you this... that there was an informational purpose to the new statute because it added the word "prayer".

To whom in your view was that information conveyed?

Mr. Bator: --We think it became the public policy of the state--

Unidentified Justice: And there was information conveyed to the students, to the teachers, or to the citizenry at large?

Mr. Bator: --It simply reaffirmed to the world at large, to the schools--

Unidentified Justice: No, you said there was a change.

You said the informational point was a difference, and I want to know in your view to whom was that message sent.

Mr. Bator: --Your Honor, we think the message was sent to everyone who looks at the statute or was informed about it.

The statute simply makes explicit that one of the uses to which this moment of... this zone of privacy and silence and serenity--

Unidentified Justice: Is it your view that that message did or did not reach the students in the classroom?

Mr. Bator: --We don't have a record, Your Honor.

I really, I really don't know.

Unidentified Justice: I am just trying to understand what your point was about this informational purpose of the statute.

Mr. Bator: Your Honor, the point I was addressing when I was responding to Justice Marshall was that quite aside from a formal moment of silence, students may pray during snatches of inactivity during the day--

Unidentified Justice: Which they could have done under the old statute.

Mr. Bator: --What the--

Unidentified Justice: But you are saying this statute is different because of its informational content, and I don't understand your argument.

Mr. Bator: --Without the old statute, without the new statute, without any statute.

What this statute does, what these two statutes do is to formalize a practice.

It is a very simple, it is really a very inoffensive practice; we're all used to it, we have all been asked occasionally to fall silent for a minute, to remember something, to dedicate ourselves, and within that, the with to enhance, to accommodate the opportunity for students who are under a claim of conscience to bring silent prayer as part of their activities in school.

I think I want to return to Justice Marshall's question because this is absolutely crucial to us.

What this statute does is add an additional opportunity.

It enhances the freedom.

It is not that easy, it is not that unembarrassing, it is not that natural for students to find a moment of serenity.

I mean, what the moment of silence does is to create silence.

That is what it does.

Unidentified Justice: Yes, but Mr. Bator, the question is whether the new statute and the difference between the new and the old, is subject to attack or not, and you are... all of your arguments would apply to the earlier statute.

Mr. Bator: We think there is no constitutionally relevant distinction between the two statutes.

Unidentified Justice: Do you think that the new statute accomplished any significant legislative purpose, and if so, what?

Mr. Bator: Yes.

It expanded the operation of the formal moment of silence from grades one through six to grades one through twelve.

It made a change in the administrative structure because it said the teacher has some discretion.

Then the statute adds what was already the case.

How can it be unconstitutional for Alabama simply to say what was already the fact, which is that in this uncoerced, neutral atmosphere, a brief moment of stillness, within this small zone of privacy, it is permissible for so minded students to dedicate their day to God.

What this does is expand the freedom of all the students in a way that is wholly inoffensive.

This is a modest gesture of generosity toward students who are under a claim of conscience.

Unidentified Justice: On the point that was raised in some of the earlier questions, Mr. Bator, is there any mechanism by which the State of Alabama could have applied to some Court for a construction of this statute in order to enable the state to instruct its teachers?

Mr. Bator: Your Honor, I don't know whether there is a formal mechanism available, and maybe there might have been.

But in this case, where the state is now under injunction against even putting the statute into operation, the situation seems to us to be... the confrontation is here before this Court, at least under the judgment of the Eleventh Circuit.

Thank you, Your Honor.

Unidentified Justice: Mr. Bator, that judgment or injunction does not extend to the earlier statute, I take it.

No.

Mr. Bator: No, Your Honor, it doesn't, but we don't... we don't think it can be the law that it is all right to knock down a constitutional statute because there is another constitutional statute which to some extent covers the same ground.

Chief Justice Burger: Mr. Williams?

ORAL ARGUMENT OF RONNIE L. WILLIAMS, ESQ. ON BEHALF OF APPELLEES

Mr. Williams: Mr. Chief Justice, and may it please the Court:

I think what has become clear here is that this is not a case about accommodation.

I think the prior opinions of this Court has made clear that to accommodate the free exercise rights of individuals and citizens of this nation, there must be a burden placed upon those rights by the government.

Here the state has shown no burden placed upon the rights of young children in the Alabama public school system prohibiting the free exercise of their religious rights.

I think as has been pointed out, the earlier statute, the 1978 statute that provides for a moment of silent meditation, adequately provides time for reflection, introspection, meditation, whatever a child feels a need to engage in.

There was no need for this new statute, the 1981 statute, but simply the major part, the major change simply added the word "prayer".

I think it is a a clear attempt on the part of the state to promote religion, to promote religious practice, and one of the most basic of religious practices, and that is prayer.

The whole idea behind the accommodation doctrine was to assure that a person fares no worse for being religious than a nonreligious person subject to the same governmental activity.

There has been no showing here, and I will point out that the record is clear, there is no hindrance to any child from praying during their period of time of meditation under the 1978 statutes.

Senator Holmes, the sponsor of that particular statute, of the new statute, the 1981 statute, testified in District Court that it was his purpose to return prayer to Alabama public schools, that is constituents had advised him that they felt a need to have prayer in school.

Now, the new statute was impermissive, and if there is going to be any type of accommodation, how do you accommodate when you allow a teacher the discretion to make the determination of whether or not that statute will be applied or not.

Unidentified Justice: Mr. Williams, let me ask you for a moment about the case in controversy problem which Justice White raised with your opponent.

The District Court's opinion, I see, says that your clients' suit was initiated in order to challenge certain prayer activities initiated by his children's public school teacher.

Now, was that the 1982 statute that had actually been put into effect at that time?

Mr. Williams: No, initially, when this case first started, the activity being complained about was teacher-led group, vocal prayer in the public school system.

Later, as the case progressed, this complaint was amended when it became clear because of other people coming forward, that other religious activity was taking place in the public school system as well, including silent prayer, Bible reading over the public address system, just a variety of religious activity.

The District Court did not allow plaintiff to get into the details of all that... those activities, so the main focus of the case became the teacher-led prayer, the recently enacted Bob James Prayer, and this new silent meditation or prayer statute.

Unidentified Justice: Then it was enjoined before it could actually be put into effect, the '82 statute.

Mr. Williams: No, the '82 statute was already in effect.

Unidentified Justice: And what, people were acting under it?

Mr. Williams: Well, that was the indication that we had received.

Now, there was no evidence produced at trial because... let me back up one moment.

This case was amended once again to allege class allegations because other citizens of Mobile were coming forward to complain about this type of activity, silent prayer, Bible reading, just a variety of activity.

It was brought as a class.

The District Court would not certify it as a class, would not allow any testimony other than on the particular two statutes, the Bob James statute, the new medication statute, and the teacher-led prayer.

So there is... the record is basically clean of any actual testimony regarding the implementation of the silent meditation or prayer statute.

As I was about to say about the accommodation, you do not accommodate someone when there is no burden.

Any student had the right, in fact still has the right since the 1978 statute has not been... as a fact, has not been repealed.

That statute is still good law.

I disagree with counsel that Appellees concede the constitutionality of that particular statute.

We simply did not challenge it.

The legislative history of that particular statute was unclear.

There is nothing to indicate what the purpose of that particular statute was, what the effect of it was, and whether or not there was any entanglement, which is the three-part test that has been used by this Court repeatedly in these types of cases, establishment clause cases.

So that particular statute was not challenged by the Appellees.

The 1982 statute... the 1981 silent meditation or prayer statute was a different matter.

The only major change, as I suggested earlier, was the addition of the word "prayer", and I think that is very important because it shows the clear purpose on the part of the state to bring prayer back to the public schools.

Unidentified Justice: Mr. Williams, do you take the position that the earlier statute is invalid on its face, unconstitutional on its face?

Mr. Williams: The '78 statute?

Unidentified Justice: Yes.

Mr. Williams: No, I do not take that position.

In fact, I am not sure I have a position on that particular statute at all, based on the fact that there has just been no information--

Unidentified Justice: Well, I know officially you haven't, but I am asking you whether you believe it is valid, facially, the earlier statute?

Mr. Williams: --I think I would take the position that it is valid or its face, just a simple moment of silence for meditation to do whatever you will, which may include prayer as well.

I think when the state went further to add or to suggest, and when we talk about impressionable children, young children in elementary schools, some who look up to their teachers, who idolize their teachers, I think you are allowing the state to promote religion as opposed to accommodate someone's free exercise rights.

I think that is exactly what has happened in this situation.

I think that is why, as the record would suggest in this case, there was so much turmoil within the Mobile public school system.

The record of this case I think indicates the turmoil that has come about because of this case.

The Governor of the State of Alabama introduced his own statute suggesting prayer in, I guess, a direct response to the filing of this complaint in District Court.

This is no attempt to accommodate the rights of young children in the Alabama public school system.

This is simply a blatant attempt to do I guess through the back door what cannot be done through the front door.

Unidentified Justice: Mr. Williams, suppose the teacher said at the opening of the class, we now have a moment when we will all remain silent to collect your thoughts and think about why you are here in school, any problems with that?

Mr. Williams: A moment of silence just to think about why we are here in school?

I see no problems with that at all.

Unidentified Justice: Mm-hmm.

Aren't they free to do just that?

Mr. Williams: They are, indeed.

I think the difference here... well, in fact, they are free to pray silently on their own without establishing or without the teacher saying anything at all.

I think the difference here is by the teacher suggesting that in addition to meditating on whatever subject, that you also may pray, imposes--

Unidentified Justice: Is she telling them any more than the First Amendment guarantees to every person in this country, man, woman and child?

Mr. Williams: --Well, I'm not so sure that that's the job of the teacher or the government explain each and every law.

Unidentified Justice: Well, aren't we supposed to be teaching the children about the Constitution and about freedom of press and freedom of speech?

Mr. Williams: Certainly, I think that would be fine in a subject matter context, in a curriculum context, but during a moment of silence, every day, day in and day out, when the school bell rings, I think that is more than just teaching children about what the First Amendment stands for, what its protections and prohibitions are.

I think it goes much further.

I think it, as I said earlier, the states stepped across that line of neutrality.

It is not longer... the state is no longer being neutral.

It is basically explaining one aspects of the Constitution, and putting special emphasis on prayer, which offends the Constitution.

I think it would be appropriate if the teacher wanted to, say, Monday discuss the First Amendment, Tuesday the Second Amendment, and so on and so forth, but--

Unidentified Justice: Do you think... do you think the teacher could tell the children, you may meditate, but you may not pray silently?

Mr. Williams: --No, I don't think a teacher... I think that would be a violation of the Constitution as well, stepping across the line of neutrality the other way, showing a preference to the nonbeliever or possibly some other religious groups that do not have prayer as part of their religious tenet.

I think as suggested by this Court, and held by this Court in all of its prior decisions, that the state must maintain total neutrality in the areas of religious conscience and religious belief, not--

Unidentified Justice: Mr. Williams--

Mr. Williams: --discouraging one.

Unidentified Justice: --May I ask you a question?

Mr. Williams: Certainly.

Unidentified Justice: What establishment of religion do you think this statute proposes?

Mr. Williams: I think principally I would have to say the Christian religion as to a religion that is being established.

Unidentified Justice: The Christian religion?

Mr. Williams: Well--

Unidentified Justice: What was your answer?

I didn't hear.

Mr. Williams: --I did say Christian religion, yes.

Unidentified Justice: How many religious faiths are practiced in Alabama?

Mr. Williams: I'm sorry?

Unidentified Justice: Do you know how many religious faiths are practiced in Alabama?

Mr. Williams: No, I do not know the total number.

Unidentified Justice: There would be hundreds, wouldn't there?

Mr. Williams: Certainly.

I would think so.

Unidentified Justice: Any particular one of those furthered by this statute?

Mr. Williams: I think religion generally is being furthered by this statute.

Unidentified Justice: This big... the First Amendment doesn't say that.

The First Amendment says Congress shall make no law respecting an establishment of religion.

That was written with the Church of England in mind.

So I return to my question, does this statute further any establishment of religion?

Mr. Williams: I would say yes in the sense that--

Unidentified Justice: Which one?

Mr. Williams: --Well, I couldn't identify them all, but I was about to say that any religion--

Unidentified Justice: It furthers all of them?

Mr. Williams: --Pardon me?

Unidentified Justice: It furthers several hundred establishments.

Mr. Williams: Those that deal with prayer or have prayer as part of their religious worship exercises, I would--

Unidentified Justice: Do you think that is consistent with the language of the First Amendment?

Mr. Williams: --No, I do not.

I believe that as this Court has held in past cases that it is not the business of the government, period, to be involved in religious matters, even promoting a belief in all religions or a belief in no religion.

Unidentified Justice: On the other hand, the government certainly has a duty to, as you have already recognized, to make sure that people have their right to exercise whichever religion they prefer.

Could you construe this statute as having that as a primary purpose.

Mr. Williams: No, because I think--

Unidentified Justice: Go right ahead.

I would be interested in your response.

Mr. Williams: --Well, if Alabama simply had a silent meditation or prayer statute, no other statute, quite possibly... no, I don't think even... I don't even think in that situation.

I do not feel that this statute serves those purposes.

I think the moment of silence serves adequately any needs of any student.

They are not just that particular statute, but even without that statute, a child has the right to silently pray.

So I don't think the government has to take any step at all to encourage or influence a child to pray.

Unidentified Justice: As sort of a practical matter, do you think many children of school age are going to be thinking about prayer when they have this moment of silence, or will they be thinking about the next athletic contest or the next date or the next party or whatever?

There is no compulsion of any kind to think about anything.

You could doze.

Mr. Williams: That is correct.

In fact, the danger is that a teacher who, as I suggested earlier, may be basically taking the role of a parent in the classroom, someone that the child looks up to, may influence some children to pray, and I think that is the danger of allowing this type of statute to remain on the books.

Unidentified Justice: Mr. Williams, let me ask you a question about one of your responses to Justice Powell.

I think, at least I gathered from your answer that you feel that either the First Amendment or something else allows a student to pray of his own free will without any statute.

Supposing the schools in Mobile open with math class, and that the first thing the teacher does when the bell rings is say, John Smith, what's eight times nine?

Well surely John Smith doesn't have any constitutional right to pray at that point.

He's supposed to be trying to answer the question.

Mr. Williams: That is correct.

Unidentified Justice: So this kind of constitutional right to pray at any moment is always subject to the overriding concerns of the educational program of the school, I suppose, unless there is some sort of a statute that says there is a moment at the beginning when you can pray or do something else.

Mr. Williams: Well, a teacher, certainly during a period of time in which the student is not actually engaged in the pursuit of knowledge, I would think that he could take time to silently pray, but I don't think a child has a constitutional right to, when a teacher asks him what is five plus four, to ask the teacher for a brief moment to go and pray and then come back and respond to the question.

0 [Generallaughter.]

It may happen.

I think what is clear though is that no evidence was offered as to any secular purpose regarding the second statute, the 1981 silent meditation or prayer statute.

The sole witness, Senator Holmes, the sponsoring legislator on this particular bill, testified that it was his main purpose, I mean, his only purpose was to return prayer to the Alabama public schools.

There was no secular purpose, and I think that even under the--

Unidentified Justice: Mr. Williams, can I ask you a question about the difference between the two statutes again, as a practical matter?

How do we know that the children of Mr. Jaffree, when they go to school, will encounter any different practice by the teacher, whether one or both statutes are in effect?

Does the statute cause anything different to happen in the classroom of the people who are parties to this lawsuit than if the statute were not on the books?

Mr. Williams: --I think so, and not just to the... Mr. Jaffree's minor children in school.

I think all children who are subjected day in and day out to the teacher suggesting that they can pray, not just--

Unidentified Justice: Well, how do we know the teacher is going to suggest that?

The statute doesn't require the testimony to say a word about prayer.

Mr. Williams: --No.

The statute--

Unidentified Justice: Could not the teacher comply with the new statute by continuing to follow whatever practice he or she followed under the old statute?

Mr. Williams: --That is correct.

Unidentified Justice: Then how does the new statute hurt your clients?

Mr. Williams: I think it is public perception, and I think with the fanfare of this whole thing, I think with having a statute that provides for meditation and then turning right around a few years later and having a very similar statute but simply adding prayer, I think gives perception to those who are interested--

Unidentified Justice: Do you think that makes your case or controversy?

Mr. Williams: --I think what makes the case or controversy is that this is not the business of the state at all to be engaged in promoting religion.

Unidentified Justice: Well, I know, but as Justice Stevens asked you, how does it hurt?

How can you show that this statute hurts your client, unless, unless the children have actually been in school and in class and the teacher has actually followed this new statute?

Mr. Williams: To my knowledge--

Unidentified Justice: Nobody knows if it has ever been applied yet, do you?

Mr. Williams: --Well, it is not on the record.

We do know it a been applied.

As far as Mr. Jaffree's children, no, we do not have any knowledge as to whether or not the statute has actually been applied in those children's classrooms.

Unidentified Justice: Well, in the long run, Mr. Williams, to go back to that point, is the teacher telling the students if they do so any more than what the Constitution guarantees, that is, that they may indulge in a few moments of silent prayer if they want to?

Mr. Williams: Yes, I think that the teacher may in effect be telling a child no more, or the class no more than what the Constitution provides, but I think by the teacher, a state through the teacher engaging in that behavior suggests more to some students than possibly to others, may suggest that prayer is the preferred activity during this one moment of meditation.

I see--

Unidentified Justice: What if the teacher tells them while you are in the classroom you may not whisper or speak to the other students, you will only speak when you are called upon, but when you go out on the playground or out in the hall, then the Constitution guarantees you the right of freedom of speech?

Anything wrong with that?

Mr. Williams: --No, I see nothing wrong with that, but there is no--

Unidentified Justice: There is no religious aspect to that, of course, but--

Mr. Williams: --You've got it.

And it would not require the state to take a position one way or the other.

Also, in the Alabama situation, I see--

Unidentified Justice: --In either situation of these two postulated statements, a statement of what the Constitution of the United States guarantees, is it not?

Mr. Williams: --That's correct.

Unidentified Justice: You may speak, you may pray.

Mr. Williams: A teacher is speaking of things that the Constitution do... does provide, but I think the danger, or the difference is that one statute prohibits the teacher or prohibits the state from engaging in that type of activity.

Unidentified Justice: Suppose under the first statute, just the moment of silence statute, without the word "prayer" in it, just meditation--

Mr. Williams: Yes.

Unidentified Justice: --Which I think you indicated previously you thought was facially valid.

Mr. Williams: That is correct.

Unidentified Justice: Suppose the teacher does say, we are now going to have a meditation, a minute of meditation.

Everybody be silent and meditate if you want to, and a hand goes up, may we pray during this time.

May the teacher say yes, you may pray as well as meditate?

Mr. Williams: I would think so.

I would think any time a child inquires about even protected areas, the teacher has a duty to respond.

Unidentified Justice: Well, isn't that the state... then isn't the state involving itself in religion by saying yes, you may pray as well as meditate?

Mr. Williams: Well, I think as--

Unidentified Justice: And after all, that's all the statute does is say you may pray as well as meditate.

Mr. Williams: --No, I think when it becomes part of a statute, part of a law, and something that is supposed to be done, that it is impermissible.

Unidentified Justice: Well, it doesn't say you are supposed to.

It still... the teacher doesn't need to do anything.

Mr. Williams: That is correct, but by the statute, but having the statute itself suggests that whenever a teacher does do it, that teacher will be suggesting or implying that prayer is the preferred activity.

If that was not the case, that simply to say you have a moment to meditate for whatever purpose you wish to use that time for, there's nothing wrong with that.

Unidentified Justice: Mr. Williams, the Internal Revenue Code provides special exemptions for churches and religions, and local statutes provide exemption from property taxation for churches.

Would you consider that those types of legislative provisions are compatible with your position, or would you hold, if you had the opportunity to do so, that all of those statute are invalid?

Mr. Williams: No, I think those statutes are perfectly consistent with the constitutional--

Unidentified Justice: You think they do not promote religion to the same extent, perhaps a far greater extent than this little statute that you are debating here today?

Mr. Williams: --I think, as this Court has held in prior cases, incidental benefits to religion does not necessarily constitute--

Unidentified Justice: Is there incidental benefit to being tax exempt?

Mr. Williams: --Well, if all nonprofit--

Unidentified Justice: I'd like to enjoy it.

0 [Generallaughter.]

Well, didn't the District judge say that he thought that this Court had been completely misguided in all of these cases, that is, the provision of textbooks for Catholic schools, the provision of transportation to Catholic schools and all the other fringe benefits, he thought this Court was just dead wrong, didn't he, and said so.

Mr. Williams: --Yes, the District judge did say that.

I do not agree with that opinion.

I think--

Unidentified Justice: But you don't agree with the District judge on that.

Mr. Williams: --No, I don't.

But if I could make one more point about the question that was just raised, the incidental benefit to the religion, I think to exclude religion from, say, tax exempt statutes would be showing some type of hostility.

If you are going to exempt other nonprofit organizations from the tax rules, then to turn around and tax churches and other religious entities, I think you would be showing some form of hostility, and I think it still crosses the line of neutrality.

So I would see... I would see absolutely nothing wrong with that incidental benefit to religion.

Unidentified Justice: Mr. Williams, do you think that every statute that is worded in the terms of this one would be invalid facially regardless of the evidence surrounding the purpose of its adoption?

Mr. Williams: That's a difficult question.

The Alabama situation is, in my mind, a lot clearer than other states, but I would venture, my opinion would be that if you are saying that by giving children a moment of silence for meditation to do whatever they will, I do not think there is a need for adding the word "prayer", and I think even those statutes in other states would also be constitutionally infirm.

Unidentified Justice: Your answer then is that you think that a statute worded as this one would be constitutionally invalid regardless of the evidence surrounding the intention of its adoption.

Mr. Williams: Yes.

I think if the perception among the citizens of a particular state is that by singling out one particular activity in addition to meditation, but one specific activity that can be engaged in during that what, that one moment involves the state in religious matters.

Unidentified Justice: Is that consistent with your response to Justice White's question that it would be constitutionally valid for a teacher to inform the students that they may use the moment to pray?

Mr. Williams: I think it would be consistent.

I think my response was that a child, or the teacher should be responsive to any question from a student.

You do not have the routine, although this statute is impermissive, but you do not have the possibility, I guess, of every day a student asking the same question, can we pray.

The teacher announces a moment of silence for meditation, and I think throughout that school year you would not have someone in that same class asking that same question.

I think once that question is asked and once it is answered by the teacher on one occasion, assuming this takes place in the same class with the same people, I think the teacher has satisfied that inquiry and there is no need to dwell on that subject.

But to each day have a teacher to remind the students that you can pray during this moment of silence I think is going too far.

And I would just like to repeat, I think I may have glossed over the point earlier, but particularly when you have impressionable minds, you have a captive audience, I think it is even more important, and this Court has saw fit to see it that way as well, that it is even more important to protect young people from this type of behavior, from the state involving itself in religion.

Adults obviously can pick and choose between beliefs, philosophies and whatever.

Young children do not have that capability to ferret out what they feel is unacceptable and to... or what is consistent with what they are being taught at home.

That was precisely the situation with the Jaffree family.

The children were being taught one thing at home and something else in the public school room, and it is just not the business of the state to engage in that type of activity.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Baker?

ORAL ARGUMENT OF JOHN S. BAKER, JR., ESQ. ON BEHALF OF APPELLANTS -- Rebuttal

Mr. Baker: Just briefly, Your Honor.

We would like to emphasize that there is a case in controversy here because in the second amended petition, the appellee did allege that the statute was being used, and it was under that that there was praying going on in the schools.

We have a situation--

Unidentified Justice: Do you want to indicate the paragraph you are talking about?

Mr. Baker: --Yes, Your Honor.

It is on page 25 of the Joint Appendix, Paragraph 32(f).

He makes that allegation.

We have a situation now, Your Honor, where we have a statute conceded to be valid regarding a minute of silence, and a teacher now is facing the dilemma when he or she announces that minute of silence whether he or she as to do as the Chief Justice suggested, namely, inform the students that they cannot pray because of the situation where she is fearing or he is fearing the possibility of a lawsuit here for violating the injunction against the minute of silence for meditation or prayer.

Unidentified Justice: Mr. Baker, let me just be sure I understand your reference to 32(f) there, which reads that pursuant to the grant of authority contained in 16-1-20.1, Defendants, and they name the teachers, have led their classes in religiously based prayer activities.

Is that a fair description of what this statute authorizes?

Mr. Baker: No, Your Honor.

Unidentified Justice: Well, then, how do we... so you don't admit that is a correct allegation.

How does that save it from being no case or controversy then?

Would you... does this or does this not reflect what the statute intends?

Mr. Baker: No, it is not the intent of the statute, but to the extent that the Appellee has tried to narrow the issue under this statute just to the issue of prayer, one could make the allegation pursuant to subparagraph (f) that by using this minute of silence to allow prayer, that it constitutes an exercise, and the Appellee has made the allegation in his brief that this does constitute a religious exercise.

Unidentified Justice: Under your view, does anything different happen under the statute under attack in this case than happened under the prior statute?

Mr. Baker: When you say the prior statute, do you mean the '82 one or the--

Unidentified Justice: No, the '78 one.

Mr. Baker: --'78?

The effect is no different, Your Honor.

Unidentified Justice: Well, then, where is the case or controversy?

Mr. Baker: The case or controversy goes to the face of the statute and the word "prayer" in there, and the problem for the teacher as to whether they can allow silent prayer, as indicated by--

Unidentified Justice: Well, nothing in the '78 statute forbade them from allowing silent prayer, did it?

Mr. Baker: --But the dilemma for the teacher is whether they have an affirmative duty now to state that this minute in response to a question can or cannot be used for prayer.

Thank you, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.