The Constitutional Principle: Separation of Church and State
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A Moment of Silence:
The Trojan Horse of Our Age

Welcome a new contributor: Dawn Reitan-Brockman received her Juris Doctorate from the University of Oklahoma College of Law and Bachelor of Arts in Classics from the University of Oklahoma. Brockman served on the Oklahoma State School Boards Association's legal staff for four years and now serves as a consultant on education law related issues.

by Dawn Reitan-Brockman.


This fraud of Sinon, his accomplished lying,
Won us over; a tall tale and fake tears
Had captured us, whom neither Diomedes
Nor Larisaean Achilles overpowered,
Nor ten long years, nor all their thousand ships.
Aeneid, Book II, Lines 268-272

"Moment of silence" legislation is at best a thinly veiled attempt to reintroduce state-sanctioned prayer into its schools. Through trial and error in the courts, legislators have finally learned how to beat the system, beat the Lemon test, and apparently beat all the meaning out of the Religion Clauses of the First Amendment. Governmental intention to promote religion is clear when a state enacts a law to serve a religious purpose, and the intention may be evidenced by promotion of religion in general or by advancement of a particular religious belief.1 "Moment of silence" statutes not only promote religion in general by mandating a state sanctioned time to pray in schools, but also accommodate free exercise of religion for those who engage only in traditionally Protestant practices of praying silent, seated and still.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."2 These religion clauses are made applicable to the states through the Fourteenth Amendment.3 The religion clauses of the First Amendment seek to mark boundaries to avoid excessive entanglement between government and religion.4 While the Establishment Clause limits any governmental promotion of particular religious views to the detriment of those who hold other religious views or no religious beliefs, the Free Exercise clause directs the government not to meddle in the religious practices of its citizenry.

The Supreme Court has long recognized the neutral role government must play in the area of religion and has promulgated many tests to ensure that government remains uninvolved. The only test with staying power in Establishment Clause cases has been the three-pronged Lemon test. Although often criticized, it has never truly been knocked out. Its first prong, whether the governmental action had a secular purpose (one that intends to serve the general welfare), has served to invalidate many governmental schemes. Although the purpose must be secular, it need not be purely secular.5 Legislators have seized this opportunity and provided other reasoning for "moment of silence" legislation such as instilling calm in the classroom and accommodating the free exercise of religion. Meanwhile, the statute's true aim is clear: to encourage students to pray. Like the Trojans, who if they had listened as they brought the horse into their walls would have heard the sound of clanging armor inside its belly, we strive on, "deaf and blind, to place the monster on our blessed height."6

Our framers sought to protect American citizens and their religious practices from governmental interference. This is clear by looking at the Constitution and the Supreme Court's interpretation of it. In the search to find out how the separation of church and state has become muddled by "moment of silence" legislation, the evolution of Free Exercise of Religion and the Establishment Clause in relation to the public schools will be traced. Second, there will be an examination of Wallace v. Jaffree7, the only case regarding "moment of silence" legislation to reach the United States Supreme Court. Third, this paper will attempt to distinguish Wallace v. Jaffree8 from "moment of silence" legislation that has been challenged in other Circuit Courts, specifically looking at Brown v. Gilmore,9 which was denied certiorari by the U.S. Supreme Court. Fourth, there will be a comparison of Oklahoma "moment of silence" legislation from the 2002-2003 session to established precedent. An examination of ways to challenge the constitutionality of such statutes in light of the first prong of Lemon will conclude this research.

Free Exercise of Religion and the Establishment Clause in Relation to the Public Schools

Until the case of Wisconsin v. Yoder,10 courts dealt with free exercise claims on the basis of a belief/conduct distinction. Government could regulate conduct, not beliefs. However, this was not possible with the Amish who viewed secondary education as impermissible exposure of their children to worldly influence in conflict with their beliefs.11 Therefore, the Supreme Court came up with a "Balance of Interest" test. This balanced the Free Exercise claimants' level of coercion against the compelling state interest.12 Although there was a compelling state interest in educating the nation's youth, it must nonetheless be accomplished through the least restrictive means.13

The case of Oregon v. Smith14 limited the "Balance of Interest" test to cases where the government is targeting a religion. As a result, the test comes into play only if the government doesn't apply a statute across the board.15 Congress tried to circumvent this by passing the Religious Freedom Reformation Act ("RFRA"),16 which was a return to the Yoder test. Yoder was limited by Smith because the Yoder test burdens government with a compelling state interest every time government action affects religion. When an Archbishop cited RFRA as one basis for relief when he was unable to enlarge his church due to restrictions for historic buildings, RFRA was found to be unconstitutional because Congress exceeded its power.17 The Court reasoned that there were not any examples of generally applicable laws passed because of religious bigotry for Congress to remedy with this act.18 Consequently, Supreme Court precedent, not RFRA, controls. "Government's ability to enforce generally applicable prohibitions of socially harmful conduct$133;cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development."19 It now stands that unless one can show targeting in regard to a statute, there is no viable Free Exercise claim. Free Exercise essentially died in this country in 1997 because the government does not have to accommodate religion if the law is one of general applicability. Any burdens to religion as a side effect are irrelevant.

The Establishment Clause was intended to afford protection against three main evils: "sponsorship, financial support, and active involvement of the sovereign in religious activity."20 The case which assembles the criteria for analysis developed over the years in Establishment Clause cases is Lemon v. Kurtzman21. Lemon promotes a three-pronged test for allegedly unconstitutional governmental action. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and third, the statute must not foster "an excessive government entanglement with religion."22

Lynch, Mayor of Pawtuckett v. Donnelly23 critiques the Lemon test, but does not overrule it. Instead, Justice O'Connor proposes in her concurrence that when investigating government infringements, one should focus on whether the government endorses or disapproves of religion by what it is doing.24 In this "Endorsement Test," O'Connor examines the message sent and the message received and focuses on the psychological effects. O'Connor suggests that this test modify the "primary effect" prong of Lemon, which was essentially a financial inquiry.25

The Court utilized this modified Lemon test when dealing with prayer clubs, replacing the second prong of Lemon with O'Connor's Endorsement Test. In the 1980's, students sought access to public schools relying on the Equal Access Act, which gave high school students the right to come together and meet for the purpose of discussing religion, philosophy, or politics. In Board v. Mergens,26 the Court found the Act did not violate the Establishment Clause and went on to define how the Act could be constitutionally applied. Conditions included the presence of one or more non-curricular clubs at the school, maturity of the students, meeting during non-instructional time, no outsiders in attendance, no "sponsor," and no participation of school employee monitors.27 The trigger is a noncurricular club, which in essence creates a limited open forum.28 If all the public school's clubs can be traced to one of the following, the Equal Access Act does not apply: the subject is related to a course; is related to the whole curriculum, like student government or honor society; gives course credit; or is required for a course.29

The next major case dealing with religion dealt with a Rabbi and an invocation. Lee v. Weisman30 dealt with invocations and benedictions in public school graduations. When the Court applied the Lemon test, it held that the invocation in this case violated the second part of the test, having a primary effect that neither advances nor inhibits religion.31 The Court felt the practice created an identification of governmental power with religious practice by endorsing religion and, as a result, violated the Establishment Clause.32 The Supreme Court reinforced:

The principle that government may accommodate the free exercise of religion does not supercede the fundamental limitations imposed by the Establishment Clause which at a minimum guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in such a way which establishes a [state] religion or religious faith or tends to do so.33

The Court went on to say that prayer exercises in schools carry a particular risk of indirect coercion because they places public and peer pressure on the student.34

Jones v. Clear Creek35 learned from the mistakes in Lee v. Weisman to find an appropriate way to permit invocations at graduation. High school seniors could choose student volunteers to deliver nonsectarian, non-proselytizing invocations to solemnize the occasion to pass Lemon.36 While the Establishment Clause forbids inflicting religion on public schools, the public schools still have the responsibility to develop the pupil's character and decision-making skills.37 Since religion has always been a foundation in such areas, it should not be left out of the mix.38 In order to pass Lee, students, not the government, must direct the activity.39 The religiosity level must be low.40 The level to which the students feel coerced to participate must also be low.41 In Jones, the focus is directing, but the activity must also have a low religiosity and coercion level.

Jones, however, must be read in light of Santa Fe v. Doe42 as both cases deal with handing a student a microphone. In Santa Fe, the Court rejected the notion that the secular purpose of solemnization could be extended to prayer before a football game and that the invocation was private student speech.43 The delivery of a religious message on school property, at school-sponsored events over the school's public address system by a speaker representing the student body under the supervision of school faculty, pursuant to school policy endorses religion.44 The Court focused on the voluntary participation prong of Lee and concluded there was coercion to attend football games in high school due to social pressure.45 This shows the Court hasn't moved away from the psycho-coercive effect in deciding Establishment Clause cases in the public schools.

The preceding line of cases seems to show accommodationists never have a chance with Lemon. As it stands, school districts don't know what they are permitted to do, especially if there is any sense that students are uncomfortable and there is the possibility for indirect coercion. Then, along comes a "moment of silence."

Wallace v. Jaffree

In Wallace v. Jaffree,46 a parent of three public school children challenged the constitutionality of three Alabama school prayer and meditation statutes. Originally, the constitutionality of three Alabama statutes was questioned:

  1. §16-1-20, enacted in 1978, which provided:

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

  2. §16-1-20.1, enacted in 1981 which provided:

    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 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.

  3. §16-1-20.2, enacted in 1982 which provided:

    From henceforth, any teacher or professor in any public educational institution within the state of Alabama, recognizing that the Lord God is one, at the beginning of any homeroom or any class, may pray, may lead willing students in prayer, or 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 Appellees abandoned any claim that §16-1-20 was unconstitutional. In regard to the Alabama statute47 authorizing a daily period of silence in public schools for meditation or voluntary prayer, the Supreme Court held that the statute was an establishment of religion in violation of the First Amendment.

In coming to that conclusion, the Court noted that the "prime sponsor" of the bill admitted that the bill was "an effort to return voluntary prayer to our public schools…it is a beginning and a step in the right direction."48 In fact, the sponsor testified under oath that he had "no other purpose in mind."49 Even the state itself did not present any evidence of a secular purpose. When Governor George C. Wallace argued that this statute "is best understood as a permissible accommodation of religion" and that viewed in terms of the Lemon test, the "statute conforms to acceptable constitutional criteria," the Court dismissed his argument.50 The Court reasoned that his arguments seem to be based on the theory that the free exercise of religion of some of the State's citizens was burdened before the statute was enacted. The Court pointed to the United States' Amicus Brief that stated "it is unlikely that in most contexts a strong Free Exercise claim could be made that time for personal prayer must be set aside during the school day.";51 The Amicus concluded that there was no basis for the suggestion that §16-1-20.1 "is a means for accommodating the religious and meditative needs of students without in any way diminishing the school's own neutrality or secular atmosphere."52

The preamble of the statute also evidenced its purpose, to provide for a prayer that may be given in public schools.53 Legislative intent was also confirmed by looking at the statute's predecessor, which authorized a period of silence "for meditation" only. Adding "or prayer" to the existing statute evidenced a lack of neutrality toward religion.54 Since the statute did not reflect a clearly secular purpose, the Court found no necessity to look at the last two prongs of Lemon.55

The Court took pains to differentiate legislative intent to return prayer to public schools and merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence.56 The Court pointed out that the original 1978 statute already protected that right without adding the word "prayer." Nevertheless, the significance of the addition of the words "or voluntary prayer" was irrelevant to the Court because the focus should be the message conveyed. Whenever the State itself speaks on a religious subject, one of the questions the Court is obliged to ask is "whether the government intends to convey a message of endorsement or disapproval of religion."57 Since the statute intended to convey a message of state approval of prayer activities in public schools, the Court concluded that the statute violates the First Amendment.58

The Court left the door open that some "moment of silence" statutes may be constitutional in the main opinion59 as well as Powell's60 and O'Connor's61 concurrence. However, Justice O'Connor acknowledged that the secular purpose of the statute must be "sincere"; a law will not pass constitutional muster if the secular purpose articulated by the legislature is merely a "sham."62 Nevertheless, O'Connor hints to legislators that if a legislature expresses a plausible secular purpose for a moment of silence statute in either the text or the legislative history, or if the statute disclaims an intent to encourage prayer over alternatives during a moment of silence, then courts should generally defer to that stated intent.63

Moment of Silence Cases after Wallace v. Jaffree

In Bown v. Gwinnett County School District,64 a public school teacher from Georgia brought an action against the state and the school district challenging the constitutionality of a statute requiring a period of quiet reflection in public schools. The 1994 Act provided:

20-2-1050. Brief period of quiet reflection authorized; nature of period.

  1. In each public school classroom, the teacher in charge shall, at the opening of school upon every school day, conduct a brief period of quiet reflection for not more than 60 seconds with the participation of all the pupils therein assembled.
  2. The moment of quiet reflection authorized by subsection (a) of this Code section is not intended to be and shall not be conducted as a religious service or exercise but shall be considered as an opportunity for a moment of silent reflection on the anticipated activities of the day.
  3. The provisions of subsections (a) and (b) of this Code section shall not prevent student initiated voluntary school prayers at schools or school related events which are nonsectarian and nonproselytizing in nature.65

Following the Lemon test, the Eleventh Circuit Court of Appeals concluded the statute had a secular legislative purpose; the statute's principal or primary effect neither advanced nor inhibited religion; the statute did not involve impermissible government coercion; and the statute did not foster excessive government entanglement with religion.66 The Court examined the language of the statute on its face, considered the legislative history of the statute and the specific sequence of events leading up to the adoption of the statute.67 The Court noted the preamble gave a plainly secular purpose for the Act: to offer beneficial quiet reflection before commencing the activities of the day in such a hectic world.68 The Court felt that subsection (b) of §20-2-1050 also expressed a secular purpose and deliberately disclaimed a religious purpose.69 The Act amended the former version of § 20-2-1050, which provided for a moment of "silent prayer or meditation." The deletion of the words "prayer or meditation" and the substitution of the words "period of quiet reflection" provides some support also.70 The Court read subsection (c) as merely a deterrence to any unintended reading of subsection (b) and felt it merely spelled out that (a) and (b) do not prohibit any activity that is constitutionally permissible under the First Amendment.71 The fact that there was a severability clause didn't fill the Act with a religious purpose either.72 It merely showed that legislators would have been content going on with (a) and (b) if (c) was found to be unconstitutional.73

The Court distinguished Jaffree by pointing to a different legislative history. Even though some legislators had religious motives, this alone wouldn't invalidate the Act since what was important was the purpose of the statute, not the motives of the legislators who enacted the law.74 The Court concluded that legislative history was not as paramount as express statutory language that communicates a clear secular purpose and disclaims a religious purpose.75

The Court moved on to the second prong of Lemon and found that the Act as implemented did not have the primary effect of advancing or inhibiting religion.76 The principal only indicated that there would be a moment of silence to reflect on the day's activities.77 An administrative bulletin instructed that teachers should not suggest that students use the moment for prayer.78 There was no evidence that teachers violated those guidelines.79 Students with religious beliefs that require non-silent prayer may instead sit and quietly reflect without compromising their beliefs.80 Those students who don't believe in religion may also sit quietly.81 There was no impermissible government coercion of students to engage in religious activity because all the students need do is remain silent for 60 seconds.82 A teacher stopping a student from praying audibly or monitoring the moment of silence does not result in excessive government entanglement with religion.83 The Court concluded that the statute satisfies Lemon.

In Doe v. School Board of Ouachita Parish,84 schoolchildren and their parents challenging the constitutionality of a Louisiana statute providing for verbal prayer in the schools. In 1976 the Louisiana legislature enacted a statute that required local school boards and parishes to permit school authorities to allow students and teachers to observe a "brief time in silent meditation."85 This was amended in 1992 to allow for a "brief time in silent prayer or meditation."86 In 1999 an amendment was passed deleting the word "silent" from the statute so that it now reads:

Each parish and city school board in the state shall permit the proper school authorities of each school within its jurisdiction to allow an opportunity, at the start of each school day, for those students and teachers desiring to do so to observe a brief time in prayer or meditation.87

The Court of Appeals for the Fifth Circuit found the case virtually identical to Jaffree.88 The Court noted that an inappropriate purpose behind a statute could be determined by looking at the statute on its face, its legislative history as well as the historical context of the statute and the specific sequence of events leading to passage of the statute.89 Proof that the 1999 amendment was motivated wholly by a religious purpose was shown by the deletion of the word "silent" from the statute which affirmatively authorizes verbal prayer in schools.90 The act of deleting words to serve a certain purpose is almost identical to the Jaffree amendment that added the words "silent prayer" to a statute that allowed only for meditation: both show an intent to advance religion.91 The Court also examined the legislative history and found that the plain language of the 1999 amendment as well as the legislature's statements at the time showed that the sole purpose of the amendment was to return verbal prayer to the public schools in violation of the Establishment Clause.92

In Brown v. Gilmore,93 students and their parents brought suit challenging the constitutionality of a Virginia statute that mandated a "minute of silence" in the state's public schools. In 2000, Virginia amended a 1976 statute from merely authorizing to mandating local school boards to establish a minute of silence in their classrooms for the expressly stated purpose of allowing students to meditate, pray, or engage in any other silent activity. The amended version provides:

In order that the right of every pupil to the free exercise of religion be guaranteed within the schools and that the freedom of each individual pupil be subject to the least possible pressure from the Commonwealth either to engage in, or to refrain from, religious observation on school grounds, the school board of each school division shall establish the daily observance of one minute of silence in each classroom of the division.

During such one-minute period of silence, the teacher responsible for each classroom shall take care that all pupils remain seated and silent and make no distracting display to the end that each pupil may, in the exercise of his or her individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice.

The Office of the Attorney General shall intervene and shall provide legal defense of this law.

(Italics show additions and strike-throughs show deletions).94

Because the case was based only on a facial, preapplication challenge, there was no factual record of how the statute was applied. Therefore, the Fourth Circuit Court of Appeals scrutinized the text, context, and legislative history to look for an unconstitutional purpose, and examined available data to determine the statute's inevitable effects.95

The Court first pointed out that it need not find that the legislative purpose be "exclusively secular" because the statute may still satisfy Lemon if it also has a "clearly secular purpose."96 The Court found at lest two purposes, one clearly secular (nonreligious meditation) and one which may be secular even though it addresses religion (to the extent it permits students to pray is merely an accommodation).97 The Court emphasized that accommodation of religion is itself a secular purpose in that it fosters the liberties secured by the Constitution and, therefore, doesn't amount to an endorsement of religion when consistent with the values of the Constitution.98

On the subject of the statute's effect, the Court cited the statute's facial neutrality between religious and nonreligious modes of introspection. The Court dismissed the argument that children would perceive the moment of silence as the Commonwealth endorsing prayer calling the fear "speculative at best."99 The Court concluded that the State would not become excessively entangled with religion if it was enforced as written, satisfying the third prong of Lemon.100

The Fourth Circuit distinguished the case at bar from Jaffree in that Jaffree was decided on unique facts and the decision did not categorically prohibit moment of

silence statutes.101 Jaffree was "quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday."102 In Jaffree, the sponsor of the bill testified the legislation was passed only in an "effort to return voluntary prayer to our public schools."103 In Jaffree, the State did not present evidence of any secular purpose.104 Finally, the Fourth Circuit pointed to O'Connor's concurrence in Jaffree, which rejected that the use of the word "pray" is dispositive of an intent to endorse prayer.

Following the decision of the Fourth Circuit to uphold the statute in Brown v. Gilmore, an application was made to Chief Justice Rehnquist, as Circuit Justice, for an order enjoining further implementation of the Virginia statute, pending the decision for the writ of certiorari to the U.S. Supreme Court.105 Chief Justice Rehnquist, sitting as single justice, chose not to issue an injunction because the rights of the applicants were not "indisputably clear" due to the clear secular purpose of the Virginia statute.106 Rehnquist stated the clear secular purpose alone may distinguish Jaffree where the sole purpose of the statute was to return prayer to the schools. The Chief Justice felt that the secular purpose casts some doubt on the question whether §22.1-203 establishes religion.107

Rehnquist went on to cite O'Connor's concurrence in Jaffree, which stated "Even if a statute specifies that a student may choose to pray silently during a quiet moment, the State has not thereby encouraged prayer over other specified alternatives."108 Rehnquist also pointed out that there was no evidence that Virginia schoolteachers have used the minute of silence, or any other occasion, to lead students in collective prayer even though the moment of silence statute had been in force since 1976.109 After the denial by Rehnquist for the injunction, the Supreme Court itself denied the writ of certiorari to review the case of Brown v. Gilmore.110 This denial has led to Brown being used as a model for legislators wishing to pass moment of silence legislation in their own states.

The Oklahoma Legislature 2002: A Case Study

Armed with their very own University of Oklahoma Church and State Relations law professor, Dan Gibbens, Lieutenant Governor Mary Fallin, Representative Lance Cargill, and Senator Glenn Coffee (all Republicans) held a press conference to promote a moment of silence in Oklahoma Schools. Fallin stated:

When you start out a day with a moment of silence, it gives our children a chance to come and settle down, to have a moment of calmness. It gives our students a peaceful minute each day to gather their thoughts, and if they choose, they can sit and they can bow their heads and they can pray.

The article in the Daily Oklahoman111 went on to quote Gibbens, who specializes in constitutional separation issues:

A law in Virginia cleared the way for other states to mandate moments of silence in schools after the U.S. Supreme Court upheld the idea . . . the U.S. Supreme Court and the lower court found Virginia's law was not a violation of the separation of church and state because it is different than the moment of silence laws that came before it--such as the law in Alabama, which the Court struck down . . . the difference was the intent of the legislators. Virginia lawmakers skirted the problem by saying they wanted the silent time for meditation and reflection. If that reflection happened to include prayer, so be it. (emphasis added)

Coffee and Cargill wrote Oklahoma's potential moment of silence law the same way. "I start my day with a moment of reflection. I call it my quiet time where I read a devotional," Coffee said.112 Although House Bill 1967's purpose is to allow students "free exercise of religion," the group said they are not trying to force prayer back into public schools.113

On March 20, 2002, Coffee inserted the language of his bill into a bill concerning opening teachers' personnel records for inspection (Senate Bill 1471). When several Democrats charged that the Coffee amendment was unconstitutional, Coffee denied that it mandated religion and said it contains the same language as the Virginia law that the U.S. Supreme Court declined to review.114 Republican lawmakers denied that this legislation was politically motivated and Senator Charles Ford said, "This isn't about establishing religion, it's about practicing religion."115 The Coffee amendment to Senate Bill 1471 provides:

In order that the right of every pupil to the free exercise of religion be guaranteed within the schools and that the freedom of each individual pupil be subject to the least possible pressure from the state either to engage in, or to refrain from, religious observation on school grounds, the school board of each school district shall establish the daily observance of one (1) minute of silence in each classroom of the district.

During such one-minute period of silence, the teacher responsible for each classroom shall take care that all pupils remain seated and silent and make no distracting display to the end that each pupil may, in the exercise of individual choice, meditate, pray, engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice.

The office of the Attorney General shall intervene and shall provide legal defense of this law.

(Words in bold reflect exact language from the Virginia statute declined for review by the U.S. Supreme Court in Brown v. Gilmore.)

This wasn't the only moment of silence statute offered by the Oklahoma Legislature this year. House Bill 2090 authored by Russ Roach provides:

In order that the right of students to the free exercise of religion be guaranteed within a school and that the freedom of each student in a school be subject to the least possible pressure from the state either to engage in, or to refrain from, religious observation on school grounds, the board of education of a school district shall establish the daily observance of one (1) minute of silence in each classroom of the district.

When the board of education of a school district establishes a one-minute period of silence, the teacher responsible for each classroom shall take care that all students remain seated and silent and make no distracting display to the end that each student may, in the exercise of individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other students in the like exercise of individual choice.

The Office of the Attorney General shall intervene and shall provide legal defense of this law.

(Words in bold reflect exact language from the Virginia statute declined for review by the U.S. Supreme Court in Brown v. Gilmore.)

Another House Bill, 1966, is also virtually identical to the Virginia statute. Coincidence?

Should the Courts Be Doing More?

When all that the courts can do is scrutinize the text, its context, and legislative history to look for an unconstitutional purpose, and examine available data to determine the statute's inevitable effects, is this really enough? It is not enough when legislators are being coached by Constitutional Law professors on what to say and what language to use in legislation to get around an Establishment Clause challenge. It is not enough when the first prong of Lemon does not require a purely secular purpose, just a clear secular purpose. It is not enough when the courts do not require that the clear secular purpose be truthful. It is not enough when the courts call students' perception of the time as state endorsement of prayer "an unsubstantiated fear"; a "heckler's veto," in the words of Justice Clarence Thomas in Good News Club v. Milford Central School.116 It is a fact that students are impressionable and their attendance is involuntary. That the statute is merely offering alternatives under the guise of accommodation is not enough:

That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and non-conformity is not an outstanding characteristic of children.117

Accommodating religious practices may seem to serve a secular purpose. However, "at some point, accommodation may devolve into an unlawful fostering of religion."118

This paper does not advocate that there is no place for prayer in public schools. As Justice Stevens pointed out in Santa Fe "nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day."119 However, it should not be a state-sanctioned, mandatory event. Students generally are free to pray alone or in groups, as long as the activity is not disruptive and does not infringe upon the rights of others. Of course, these religious activities must be truly voluntary. Free Exercise of religion was not burdened before the passage of moment of silence statutes.

While "some deference" is owed to a legislature's professed secular purpose for an arguably religious policy,"it is nonetheless the duty of the courts to distinguish a sham secular purpose from a sincere one."120 Unless the "sham" can be seen in the purpose of the statute as evidenced by the words or legislative history, the courts will continue to uphold moment of silence statutes. Religious motives of the legislators who enacted the law have been deemed irrelevant.121

There are many who do not see the harm in such an activity and as a result believe that there is no reason to challenge such a statute even if it is a pretext for returning prayer to the school. The problem with this kind of reasoning is that it ignores the purpose of the Religion Clauses of the First Amendment. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.122 The perception that government encourages prayer demonstrates a lack of neutrality. The wall of separation between church and state that the First Amendment erected against the establishment of religion has been broken down by moment of silence statutes. Who's to blame? "The harsh will of the gods it is, the gods, that overthrows the splendor of this place and brings Troy from her height into dust."123

 

1 Edwards v. Aguillard, 107 S.Ct. 2573 (1987).
2 U.S. Const. amend. I.
3 See Everson v. Bd. Of Educ., 67 S.Ct. 504 (1947) (applying the Establishment Clause to the states); Cantwell v. Connecticut, 60 S.Ct. 900 (1940) (applying the Free Exercise Clause to the states).
4 Walz v. Tax Commission of City of New York, 90 S.Ct. 1409 (1970).
5Lynch v. Donnelly, 104 S.Ct. 1355 (1984).
6 Virgil, The Aeneid, Book II Lines 328-329 (Robert Fitzgerald trans., Vintage Books 2d ed. 1985) (1980).
7Wallace v. Jaffree, 105 S.Ct. 2479 (1985).
8Id.
9Brown v. Gilmore, 258 F.3d 265.
10Wisconsin v. Yoder, 92 S.Ct. 1526 (1972).
11Id. at 1531.
12Id. at 1535.
13Id. at 1536.
14 Oregon v. Smith, 110 S.Ct. 1595 (1990).
15 Id>. at 1602.
16 42 U.S.C.S. 2000bb et seq.
17 City of Boerne v. Flores, 117 S.Ct. 2157, 2164 (1997).
18 Id. at 2169.
19 Oregon v. Smith, 110 S.Ct. 1595, 1603 (1990).
20 Walz v. Tax Commission, 397 U.S. 664, 668 (1970).
21 Lemon v. Kurtzman, 91 S.Ct. 2105 (1971).
22 Id. at 2111.
23 Lynch v. Donnelly, 104 S.Ct. 1355 (1984).
24 Id. at 1367.
25 Id.
26 Board of Ed. V. Mergens, 110 S.Ct. 2356 (1990).
27 Id. at 2372.
28Id. at 2364.
29Id. at 2366.
30Lee v. Weisman, 112 S.Ct. 2649 (1992).
31Id. at 2660.
32Id. at 2655.
33Id.
34Id. at 2659.
35Jones v. Clear Creek, 977 F.2d 963 (1992).
36Id. at 966.
37Id. at 965.
38Id.
39Id. at 967.
40Id.
41Id. at 968.
42Santa Fe v. Doe, 120 S.Ct. 2266 (2000).
43 Id. at 2275.
44 Id. at 2278.
45 Id. at 2280.
46> Wallace v. Jaffree, 105 S.Ct. 2479 (1985).
47 Ala.Code 1975, § 16-1-20.1
48 App. at 50.
49 Id. at 52.
50 Id. at 2490.
51 Brief for United States as Amicus Curiae 10.
52 Id. at 11.
53 Ala.Code 1975, § 16-1-20.2
54 Wallace v. Jaffree, 105 S.Ct. 2479, 2485 (1985).
55 Id. at 2483.
56 Wallace v. Jaffree, 105 S.Ct. 2479, 2491 (1985).
57 Wallace v. Jaffree, 105 S.Ct. 2479, 2492 (1985).
58 Id.
59 Id. at 2491.
60 Id. at 2493.
61 Id. at 2498.
62 Id. at 2501.
63 Id. at 2498.
64 Bown v. Gwinnett, 112 F.3d 1464 (1997).
65 O.C.G.A. Section 20-2-1050 (1996).
66 Bown v. Gwinnett County School District, 112 F.3d 1464, 1474 (1997).
67 Id. at 1469.
68 Id.
69 Id.
70 Id. at 1470.
71 Id.
72 Id.
73 Id. at 1471.
74 Id.
75 Id. at 1472.
76 Id.
77 Id.
78 Id.
79 Id.
80 Id.
81 Id.
82 Id. at 1473.
83 Id. at 1474.
84 Doe v. School Board of Ouachita Parish, 274 F.3d 289 (2001).
85 La.Rev.Stat. §17:2115 (West 1976).
86 La.Rev.Stat. § 17:2115(A) (West 1992).
87 La.Rev.Stat. § 17:2115(A) (West 1999).
88 Doe v. School Board of Ouachita Parish, 274 F.3d 289, 293 (2001).
89 Id.
90 Id. at 294
91 Id.
92 Id.
93 Brown v. Gilmore, 258 F.3d 265 (2001).
94 Va.Code Ann. § 22.1-203.
95 Brown v. Gilmore, 258 F.3d 265, 275 (2001).
96 Id. at 276.
97 Id.
98 Id..
99 Id. at 278.
100 Id.
101 Id. at 279.
102Id.
103 Id.
104 Id. at 280.
105 Brown v. Gilmore, 122 S.Ct. 1 (2001).
106 Id. at 2.
107 Id.
108 Id.
109 Id. at 3.
110 Brown v. Gilmore, 122 S.Ct. 465 (2001).
111 Diane Plumberg Clay, Group Tries To Rally Support For Moment-Of-Silence Bill, Daily Oklahoman, Jan. 21, 2002.
112 I/d.
113 Id.
114 Chuck Ervin, Measure on Prayer Added to School Bill, Tulsa World, Mar. 20, 2002.
115 Id.
116 Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001).
117 Illinois ex rel. McCollum v. Board of Education, 68 S.Ct., 473 (concurring opinion) (1948).
118 Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 107 S.Ct. 2862, 2868 (1987).
119 Santa Fe Independent School Dist. V. Doe, 120 S.Ct. 2266 (2000).
120 Wallace v. Jaffree, 472 U.S. at 75 (1985).
121 Bown v. Gwinnett, 112 F.3d 1464, 1471 (1997).
122 Abington School District v. Schema, 83 S.Ct. 1560, 1573 (1963).
123 Virgil, The Aeneid, Book II Lines 792-794 (Robert Fitzgerald trans., Vintage Books 2d ed. 1985) (1980).

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