705 F.2d 1526 (11th Cir. 1983), 83-7046, Jaffree v. Wallace

Docket Nº:83-7046, 83-7047
Citation:705 F.2d 1526
Party Name:Ishmael JAFFREE, et al., Plaintiffs-Appellants, v. George C. WALLACE, et al., Defendants-Appellees, Douglas T. Smith, et al., Intervenors. Ishmael JAFFREE, et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al., Defendants-Appellees, Douglas T. Smith, et al., Intervenors.
Case Date:May 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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705 F.2d 1526 (11th Cir. 1983)

Ishmael JAFFREE, et al., Plaintiffs-Appellants,


George C. WALLACE, et al., Defendants-Appellees,

Douglas T. Smith, et al., Intervenors.

Ishmael JAFFREE, et al., Plaintiffs-Appellants,



Douglas T. Smith, et al., Intervenors.

Nos. 83-7046, 83-7047

United States Court of Appeals, Eleventh Circuit.

May 12, 1983.

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Ronnie L. Williams, Mobile, Ala., for plaintiffs-appellants.

Jack D. Novik, ACLU, New York City, amicus curiae.

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Charles S. Coody, Counsel Dir., Div. of Legal Services, Dept. of Educ., Montgomery, Ala., for Tyson, Creel, Cherry, Higginbotham, Poole, Martin, Allen and Roberts.

Bob Sherling, Mobile, Ala., for intervenors.

John S. Baker, Baton Rouge, La., for Governor Wallace.

Robert C. Campbell, III, Mobile, Ala., for defendant-appellee Bd. of School Com'rs of Mobile County, et al.

Thomas O. Kotouc, Montgomery, Ala., for intervenors McHenry, et al.

Appeals from the United States District Court for the Southern District of Alabama.

Before HATCHETT and CLARK, Circuit Judges, and SCOTT [*], District Judge.

HATCHETT, Circuit Judge:

We must decide whether the trial court correctly determined that the recitation of prayers in the Mobile County, Alabama, public schools and the implementation of two Alabama statutes permitting religious practices in those public schools do not violate the establishment clause of the first amendment to the Constitution of the United States. 1 We are not called upon to determine whether prayer in public schools is desirable as a matter of policy. Because we find that the trial court was incorrect, we reverse and remand with directions to the trial court to issue and enforce an injunction prohibiting these unconstitutional practices.

Ishmael Jaffree, the appellant, is the father of five minor children, three of whom are enrolled in the Mobile County, Alabama, public schools. Jaffree's original action challenged the right of teachers in the public schools of Mobile County to conduct prayers in their classes, including group recitations of the Lord's Prayer. Before filing this action, Jaffree attempted to have the teachers discontinue prayer activities in those classes which his children attended. Jaffree held conversations with the teachers, wrote letters to the superintendent of the school board, and made several telephone calls to the superintendent. When these efforts failed to halt the religious practices, Jaffree instituted this action against the appellee, Board of School Commissioners of Mobile County (Board). Jaffree alleged that in addition to the Lord's Prayer, the teachers and students also recited the following three prayers:

(1) God is great, God is good, Let us thank Him for our food, bow our heads we all are fed, Give us Lord our daily bread. Amen.

(2) God is great, God is good Let us thank Him for our food.

(3) For health and strength and daily food we praise Thy name, oh Lord.

Jaffree amended his complaint to include class action allegations, which the district court denied. Jaffree filed a second amended complaint to include as appellees the Governor of Alabama, the attorney general, and other state education authorities. In this amended action, Jaffree challenged the constitutionality of Ala.Code § 16-1-20.1 (1982) and Ala.Code § 16-1-20.2 (former Ala.Act 82-735), which are known as the "Alabama school prayer statutes." Section 16-1-20.1 states that:

At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which each such class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in.

Section 16-1-20.2 states that:

From henceforth, any teacher or professor in any public educational institution

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within the State of Alabama, recognizing that the Lord God is one, at the beginning of any homeroom or any class, may lead the willing students in the following prayer to God:

Almighty God, You alone are our God. We acknowledge You as the Creator and Supreme Judge of the world. May Your justice, Your truth, and Your peace abound this day in the hearts of our countrymen, in the counsels of our government, in the sanctity of our homes and in the classrooms of our schools. In the name of our Lord. Amen.

The district court severed Jaffree's complaint into two causes of action: one related to those teachers' activities unmotivated by the statutes, and the other related to the statutes. 2 Following the severance, the court issued a preliminary injunction against the implementation of the Alabama school prayer statutes. Jaffree By and Through Jaffree v. James, 544 F.Supp. 727 (S.D.Ala.1982). After trial on the merits, the district court dismissed both actions, thereby dissolving the preliminary injunction. Jaffree v. Board of School Commissioners of Mobile County, 554 F.Supp. 1104 (S.D.Ala.1983); Jaffree v. James, 554 F.Supp. 1130 (S.D.Ala.1983). Pending appeal, Jaffree filed an emergency motion for stay and injunction in this court; we denied the motion. 3 Jaffree requested Justice Powell, in his capacity as Eleventh Circuit Justice, to stay the trial court's order or reinstate the preliminary injunction previously issued by the district court. In a memorandum opinion, Justice Powell granted the stay and reinstated the injunction pending final disposition of the appeal in this court. In the memorandum opinion, Justice Powell stated:

In Engel v. Vitale, 370 U.S. 421 [82 S.Ct. 1261, 8 L.Ed.2d 601] (1962), the Court held that the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, prohibits a State from authorizing prayer in the public schools. The following Term, in Murray v. Curlett, decided with School District of Abington Township v. Schempp, 374 U.S. 203 [83 S.Ct. 1560, 10 L.Ed.2d 844] (1963), the Court explicitly invalidated a school district's rule providing for the reading of the Lord's Prayer as part of a school's opening exercises, despite the fact that participation in those exercises was voluntary.

Unless and until this Court reconsiders the foregoing decisions, they appear to control this case. In my view, the District Court was obligated to follow them. Similarly, my own authority as Circuit Justice is limited by controlling decisions of the full Court.

Jaffree v. Board of School Commissioners of Mobile County, --- U.S. ----, ----, 103 S.Ct. 842, 843, 74 L.Ed.2d 924, 926 (1983).

The contentions of the state and county officials of Alabama are easily stated. First, the county education officials contend that if prayers are being recited in the Mobile County public schools, this activity is without state action or participation and not pursuant to any policy or statute authorizing or encouraging such activities. Second, the Alabama officials contend that the Supreme Court has misread history regarding the first amendment and has erred by holding that the first amendment is made applicable to the states through the fourteenth amendment. They present failure of the Blaine amendment of 1876 to pass Congress as strong evidence in support of these contentions.

The district court accepted the premise that the first amendment to the United States Constitution does not prohibit states

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from establishing a religion. The district court conceded that its decision was contrary to the entire body of United States Supreme Court and Eleventh Circuit precedent, but declined to follow that precedent because, in its opinion, "the United States Supreme Court has erred in its reading of history." Board of School Commissioners of Mobile County, 554 F.Supp. at 1128.


Two views have been expressed regarding the interpretation of the history surrounding the establishment clause. One view is that the word "establishment" should be interpreted narrowly. Proponents of this view contend that the establishment clause prohibits only Congress, not the states, from establishing a religion. R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1982); J. McClellan, The Making and the Unmaking of the Establishment Clause, A Blueprint for a Judicial Reform (P. McGuigan and R. Rader eds. n.d. 1981); E. Corwin, The Supreme Court as a National School Board, 14 Law and Contemporary Problems 3 (1949).

A second view results in a much broader interpretation of the establishment clause. Proponents of this view contend that the establishment clause prohibits any governmental support of religion on the state or federal level. L. Levy, Judgments: Essays on American Constitutional History (1972); L. Pfeffer, Church, State, and Freedom, (rev. ed. 1967); R. Dixon, Religion, Schools and the Open Society, 13 Journal of Public Law 267, 278 (1964); Katz, Freedom of Religion and State Neutrality, 20 U.Chi.L.Rev. 426, 438 (1953). The Supreme Court has supported the broader view. See Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1946); H. Chase & C. Ducat, Constitutional Interpretation, Cases-Essays-Materials, 1384 (2d ed. 1979).

The appellees argue that historically the first amendment to the United States Constitution was intended only to prohibit the federal government from establishing a national religion. 4 Appellees, additionally, argue that historical evidence does not support the fourteenth amendment's...

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