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Four times in five years (1980-85) the Court revisited the Establishment Clause and decided by badly split majorities that the posting of the 10 Commandments in public school classrooms was unconstitutional (Stone), legislative prayers led by a paid chaplain were constitutional (Chambers), a creche display, owned by a city and exhibited on privately-owned property was constitutional (Lynch) and now, in Wallace, that Alabama's statute allowing a moment of "meditation or voluntary prayer" was unconstitutional. But Wallace is significant not only for the principle that it establishes but also because of the vigorous debate within the concurring and dissenting opinions about the continuing validity of the Lemon framework. In addition Justice Rehnquist's searching historical inquiry into the origin of the Establishment Clause and his conclusion that would overthrow the Court's precedents and frameworks interpreting the Clause since 1947 merits close consideration. [I will devote a separate mini-essay to presenting Justice Rehnquist's argument in dissent].

Relevant Facts in Wallace

The State of Alabama passed three laws from 1978-82 that would allow a 1-minute period of silence "for meditation (1978)" in public schools, a 1-minute period of silence "for meditation and silent prayer (1981)" and teacher leadership of "willing students" in a prescribed prayer to "Almighty God (1982)." At issue in this case was only the 1981 statute.

One aspect of the procedural history of the case is arresting. The District Court conducted a preliminary hearing and enjoined the activities because they were prohibited by the US Supreme Court's precedents. In its subsequent decision on the merits, however, the District Court again recognized that the 1981 statute violated the Establishment Clause as construed by the Court but then concluded, "The United States Supreme Court has erred." Therefore, it decided that the practice need not be enjoined. Though the Court of Appeals reversed, the "remarkable conclusion" of the District Court gave Justice Stevens, writing for a 6-3 majority, a chance to hit the ball out of the park, so to speak, before articulating the legal principles that controlled the case.

The Decision

Justice Stevens first articulated (or repeated) the theory of incorporation, wherein the Religion Clauses, as well as many other provisions of the Bill of Rights, were made no less applicable to the States as to Congress. That is, the "theory of incorporation" provides that the "due process" clause of the 14th Amendment "imposed the same substantive limitations on the States' power to legislate that the First Amendment had always imposed on the Congress' power." Stevens called this principle an "elementary propostion," though upon deeper reflection, it seems that "incorporation" is neither obvious nor elementary. In any case, Alabama must recognize the doctrine, he concluded.

Important for Justice Stevens in considering the merits of the case was the application of the first prong of the Lemon test (the "secular purpose" prong) to the facts of the case. After considering the legislative history of the enactment and quoting the Senate sponsor of the bill to the effect that the legislation was an "effort to return voluntary prayer" to the public schools, the Court concluded that there was no evidence of secular purpose for the statute. Previous Court precedent would have allowed even a mixed purpose to surmount the purpose prong; however, no such purpose could be divined by the Court majority. Thus, the Court concluded that the addition of a reference to voluntary prayer in the statute rendered the statute violative of the Establishment Clause.

Justice O'Connor's concurrence (in the judgment only) is the more significant concurring opinion. She repeats her approach to Lemon articulated the previous year in Lynch by stating the importance to her of the "endorsement" test--whether the gobvernment's purpose is to endorse religion and whether the statute actualy conveys a message of endorsement. She would be more deferential to the legislature than Justice Stevens appeared to be, but even with a highly deferential standard, she admitted that the 1981 statute was wholly religious. She did not rely on the testimony of the State Senator, however, but compared the 1978 and 1981 language and concluded that since the "voluntary prayer" language was the only change in the statute, and the official legislative history emphasized the religious that change, no secular purpose could be attributed to it. Finally, Justice O'Connor would seek reconsideration of the Lemon framework.

Of the three separate opinions of dissenting Justices, Justice Rehnquist's opinion is the most dramatic, scholarly and radical. Citing the aphoristically-inclined Holmes to the effect thtat "a page of history is worth a volume of logic," Justice Rehnquist surveyed the history surrounding the early debates over the Establishment Clause before concluding that it was primarily passed to prevent the Congress from establishing a national church as well as possibly to forbid discrimination among religious sects. Thus, he concluded that the entire Establishment Clause jurisprudence of the Court since the 1947 Everson decision, where the Court concluded that the Clause prohibited not simply favoring one religious group over another but also forbade preference to religion over irreligion, was historically wrong. In addition, the Lemon framework should not simply be re-examined but summarily discarded.

It is no exaggeration to say that by the time this case was decided, the basic contours of the philosophical dispute over the Establishment Clause within the Court were now well-expressed. These two approaches, which I will call the "separationist" and "accommodationist" approaches, will now stand behind each subsequent decision. It will be instructive to see how these principles inform subsequent decisions.