Alabama Prayer Law Struck Down (May 1997)

On March 12, 1997, Federal Judge Ira DeMent struck down a 1993 Alabama statute permitting “nonsectarian, nonproselytizing student-initiated voluntary prayer” during compulsory or noncompulsory school-related student assemblies, sporting events, graduation and other school-related student events.

The case, taken by the ACLU, was brought on behalf of Assistant Principal Michael Chandler, of the DeKalb County school district, and a parent and child in the Tallegeda school system. Plaintiffs in both counties alleged other serious violations of state/church separation in Alabama public schools. The Talledega school district settled with their plaintiffs early this year, agreeing to abide by constitutional law. Judge DeMent issued a 40-page ruling finding the statute unconstitutional and “fatally flawed” and ordering DeKalb County school officials to negotiate settlements.

Congratulations to the plaintiffs for this significant Establishment Clause victory!

Below are excerpts from DeMent’s thorough ruling, minus most legal citations:

The right to be free from state-established religion lies at the heart of the concept of “freedom of religion.” It has been said that nothing short of a “wall of separation between church and state” can adequately safeguard our religious freedom. While this wall may be more metaphor than mortar . . . the concept continues to be a useful one as the separation of church and state is fundamental to the preservation of our pluralistic society.

The framers codified at least two purposes when they enacted the Establishment Clause. “Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.” See Engel, 370 U.S. at 431. Although frequently touted as a telic tool used by religious dissenters, the Establishment Clause is properly seen as an essential safeguard for the sanctity of religious belief. James Madison acknowledged this when he stated, ” ‘[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.’ ” Lee v. Weisman, 505 U.S. 577, 590 (1992) (quoting James Madison’s Memorial and Remonstrance Against Religious Assessments (1785). While government support of religion may, for the benefitted believer, have an initial appeal, this support ultimately leads to governmental influence and a concomitant erosion of religious tenets. For this reason, “[i]t is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.” Schempp, 374 U.S. at 259 (Brennan J. concurring).

Second, by enacting the Establishment Clause, the framers sought to prevent the political persecution of those people of a minority faith. Religious faith can be a powerfully divisive force. See Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 382 (1985) ([J]ust as religion has provided spiritual comfort, guidance, and inspiration to many, it can also serve powerfully to divide societies and to exclude those whose beliefs are not in accord with particular religions or sects that have from time to time achieved dominance.”) While our political system is founded on majoritarian principles, freedom of religious belief was deemed too important to be subject to the whim of the majority. The Establishment Clause prevents one’s religious beliefs from being made relevant to one’s standing in the political community.

The Establishment Clause works together with the Free Exercise Clause to protect our religious freedom. As discussed above, the Establishment Clause prevents the majority from legislating preferential treatment for those of a particular religious faith. In turn, the Free Exercise clause insures that government will not unduly burden the practice of any religious faith. . . .

Although the Establishment Clause works with the Free Exercise Clause to fully safeguard our religious freedom, there is an inherent tension between the two clauses. If the Free Exercise Clause were interpreted as an absolute mandate, it would subsume the Establishment Clause. Paradoxically, making “Free Exercise” an absolute mandate would, for all the reasons discussed above, effectively destroy “freedom of religion” as we know it.

The Free Exercise Clause does, however, contain an absolute component: freedom of belief. The government can never take action which has the effect of proscribing or prescribing a belief. . . .

Although the Free Exercise Clause guarantees complete freedom of belief, the guarantee does not extend to protect all religious activity. If the Free Exercise Clause protected all religious activity, it would not be possible to maintain a civil, pluralistic society. To take an obvious example, consider a religion which required adherents to make human sacrifices; while the Free Exercise Clause protects the right to ascribe to such a faith, it would not protect believers who acted in accordance with such tenets. Similarly, it is easy to see how the absolute protection of religious activity would quickly lead to an establishment of religion. If a school principal’s religious beliefs commanded him or her to “save” others and taught him or her that other religions were false, he or she might consider it his or her religious duty to “establish” his or her religion in that particular school. And, if the Free Exercise Clause were an absolute, the principal would have a constitutional right to press his or her religious views on students through official school channels. Clearly, the Free Exercise Clause cannot be interpreted as an absolute mandate.

What then do these complementary, yet competing, clauses (Establishment and Free Exercise) require? They require government to remain strictly neutral both among religions and between religion and non-religion. It is the job of the judiciary to insure that governments do not run afoul of this command of neutrality–to insure that government takes no action which favors or disfavors religion or religious belief.

Courts must perform this task with added vigilance when governments take action affecting our public schools. School children are particularly susceptible to peer pressure and other forms of direct or indirect coercion. Furthermore, school attendance is mandatory, and while in school, students’ expressive behavior is strictly regulated. When prayer is introduced into a public school curriculum, students who find the particular prayer, or prayer in general, offensive cannot express their dissent by “walking away” or verbally objecting. . . .

Moreover in the public school setting, federal courts have repeatedly struck down legislation and practices permitting prayer even when the prayer at issue was ostensibly “voluntary” or “student-initiated.” For example, in Engel v. Vitale, the Supreme Court declared unconstitutional a school district’s practice of having students recite aloud a nondenominational prayer even though students were free to elect not to participate. . . . Similarly, because the resources and facilities of the state are utilized when a “student-initiated” prayer is given in public schools, those hearing the prayer may be led to believe the state is associated with or endorses either the speaker’s religion, or religion over non-religion. . . .

A statute which lacks a clearly secular purpose is unconstitutional on its face. Here, although the Alabama legislature sought to recite a secular purpose for enacting Statute 16-1-20.3, the Court finds that the preeminent purpose behind the statute was to endorse religion. Accordingly, the Court finds that ¤ 16-10-20.3 violates the Establishment Clause.

Even if ¤ 16-1-20.3 were enacted for a wholly secular purpose, the Court would still be compelled to find the statute unconstitutional because the Court finds the primary effect of ¤ 16-1-20.3 is to endorse religion and the Court finds that ¤ 16-1-20.3 results in excessive entanglement between the state and religion. Irrespective of the State’s actual purpose, if legislation conveys either a message of endorsement or disapproval of religion it is unconstitutional. . . .

. . . Thus, the effect of ¤ 16-1-2.3 is to create a school system wherein public school students must, at the whim of their peers, participate in a religious practice. It is precisely this forbidden effect which ¤ 16-1-20.3 creates.

The foregoing analysis is not changed by the fact that under ¤ 16-1-20.3 the students ultimately decide whether there will or will not be a prayer at the referenced school-events. A practice which tends towards the establishment of religion cannot be made secular by delegating some aspect of the practice to nongovernmental actors. The state of Alabama, by enacting a statute which gives students the absolute right to pray at compulsory student events, has sown the seeds of religious establishment. That the final step is carried out by nongovernmental actors is of no consequence.

Nor is it of any significance that the statute only authorizes “nonsectarian, nonproselytizing” prayer. The Establishment Clause does more than protect against coerced indoctrination in one particular faith; as the Supreme Court has noted time and again, the Establishment Clause prevents government from favoring religion over nonreligion. And . . . any prayer in a compulsory school setting may have a forbidden coercive effect.

Finally, ¤ 16-1-20.3 is unconstitutional because it fosters excessive entanglement between religion and the state. . . .

Thus, the Court finds that ¤ 16-1-20.3 is unconstitutional because it (1) unreasonably restricts the private speech and religion rights of public school students; (2) was not enacted for a secular purpose; (3) has the primary effect of endorsing religion; (4) has the further effect of coercing public school students to participate in religious activity; and (5) creates excessive entanglement between religion and the state by forcing school officials to continually monitor both the content of prayer and the conduct of dissenting students.

Freedom From Religion Foundation