Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting.
The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789—1897, p. 64 (J. Richardson ed. 1897).
We do not learn until late in the Court’s opinion that respondents in this case challenged the district’s student-message program at football games before it had been put into practice. As the Court explained in United States v. Salerno, 481 U.S. 739, 745 (1987), the fact that a policy might “operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” See also Bowen v. Kendrick, 487 U.S. 589, 612 (1988). While there is an exception to this principle in the First Amendment overbreadth context because of our concern that people may refrain from speech out of fear of prosecution, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. ___ (1999), ___ (slip op., at 5—7), there is no similar justification for Establishment Clause cases. No speech will be “chilled” by the existence of a government policy that might unconstitutionally endorse religion over nonreligion. Therefore, the question is not whether the district’s policy may be applied in violation of the Establishment Clause, but whether it inevitably will be.
The Court, venturing into the realm of prophesy, decides that it “need not wait for the inevitable” and invalidates the district’s policy on its face. See ante, at 24. To do so, it applies the most rigid version of the oft-criticized test of Lemon v. Kurtzman, 403 U.S. 602 (1971).
Lemon has had a checkered career in the decisional law of this Court. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398—399 (1993) (Scalia, J., concurring in judgment) (collecting opinions criticizing Lemon); Wallace v. Jaffree, 472 U.S. 38, 108—114 (1985) (Rehnquist, J., dissenting) (stating that Lemon’s “three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service” (internal quotation marks omitted)); Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting) (deriding “the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon”). We have even gone so far as to state that it has never been binding on us. Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area… . In two cases, the Court did not even apply the Lemon ‘test’ [citing Marsh v. Chambers, 463 U.S. 783 (1983), and Larson v. Valente, 456 U.S. 228 (1982)”]). Indeed, in Lee v. Weisman, 505 U.S. 577 (1992), an opinion upon which the Court relies heavily today, we mentioned but did not feel compelled to apply the Lemon test. See also Agostini v. Felton, 521 U.S. 203, 233 (1997) (stating that Lemon’s entanglement test is merely “an aspect of the inquiry into a statute’s effect”); Hunt v. McNair, 413 U.S. 734, 741 (1973) (stating that the Lemon factors are “no more than helpful signposts”).
Even if it were appropriate to apply the Lemon test here, the district’s student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the “policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.” Ante, at 26. The Court’s reliance on each of these conclusions misses the mark.