From Justice John Paul Stevens' opinion:
Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority.
At one time it was thought that this right merely proscribed the preference of one Christian sect over another but would not require equal respect for the conscience of the infidel, the atheist or the adherent of a non-Christian faith such as Mohammedism or Judaism.
But when the underlying principle has been examined in the crucible of litigation, the court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.
This conclusion derives support not only from the interest in respecting the individual's freedom of conscience but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects -- or even intolerance among "religions" -- to encompass intolerance of the disbeliever and the uncertain.
As Justice Jackson eloquently stated in Board of Education v. Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
The state of Alabama, no less than the Congress of the United States, must respect that basic truth.
Justice O'Connor, concurring:
. . . The relevant issue is whether an objective observer, acquainted with the text, legislative history and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. A moment-of-silence law that is clearly drafted and implemented so as to permit prayer, meditation and reflection within the prescribed period, without endorsing one alternative over the others, should pass this test . . . .
M oment-of-silence laws in many states should pass Establishment Clause scrutiny because they do not favor the child who chooses to pray during a moment of silence over the child who chooses to meditate or reflect.
Chief Justice Burger, dissenting:
Some who trouble to read the opinions in this case will find it ironic -- perhaps even bizarre -- that on the very day we heard arguments in this case, the court's session opened with an invocation for divine protection. Across the park a few hundred yards away, the House of Representatives and the Senate regularly open each session with a prayer.
These legislative prayers are not just one minute in duration but are extended, thoughtful invocations and prayers for divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States.
Congress has also provided chapels in the Capitol, at public expense, where members and others may pause for prayer, meditation -- or a moment of silence.
Inevitably some wag is bound to say that the court's holding today reflects a belief that the historic practice of the Congress and this court is justified because members of the judiciary and Congress are more in need of divine guidance than are schoolchildren . . . .
The court today has ignored the wise admonition of Justice Goldberg that "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." The innocuous statute that the court strikes down does not even rise to the level of "mere shadow . . . . "
The mountains have labored and brought forth a mouse.