IFAS | Freedom Writer | December 1994 | silence.html

Moment of silence in public schools

By Barbara A. Simon, Esq.

Thirty-two years ago in Engel v. Vitale the Supreme Court ruled that state-sponsored school prayer violated the Establishment Clause. Justice Hugo Black, author of the majority opinion in Engel, reminded his readers that the Establishment Clause rests upon the belief that "a union of government and religion tends to destroy government and degrade religion." Since 1962, there have been numerous attempts, including attempts at formally amending the Constitution, to bring state-sponsored school prayer back into the classroom.

The current wave of attempts, which began in the mid-1980s, is the "moment of silence" ploy. In the 1985 Wallace v. Jaffree decision, the Court struck down an Alabama state statute, which authorized a moment of silence to be used for "meditation or voluntary prayer" in the public schools. The Court applied the Lemon v. Kurtzman (1971) standard of review (known as the Lemon Test) to the Alabama moment of silence law. The Lemon standard, which is frequently employed by the Court to review Establishment Clause cases, requires that if the challenged practice is to be found constitutional it must have: (1) a legitimate secular purpose; (2) the principle or primary effect of not advancing or inhibiting religion; and (3) not fostering excessive governmental entanglement with religion. In applying the secular purpose test, Justice Stevens argued that it was appropriate to ask whether the governmental purpose was to endorse or disapprove of religion. The legislative history showed that the bill's sponsor stated the law was "an effort to return voluntary school prayer" to the public schools of Alabama, and therefore was violative of the Establishment Clause.

Two years later the Court had been expected to rule on a New Jersey law, which required that students in public schools be allowed a moment of silence for "quiet and private contemplation or introspection," however, the case was dismissed for lack of jurisdiction.

Among the many states that have adopted "moment of silence" laws are Alabama, Georgia, Maryland, Massachusetts, Mississippi, Tennessee, Virginia, and South Carolina. Florida, Oklahoma, and Pennsylvania are considering similar laws.

This past August, in suburban Atlanta, Georgia, a social studies teacher at South Gwinnett High, Brian Bown, was fired by the school board for lecturing, as an act of protest, throughout the newly enacted moment of silence. Bown told the Associated Press: "I either violate my conscience and beliefs and follow a law that is blatantly unconstitutional, or I'm fired." Bown stated that the law violated his conscience because the law is intended as a first step to get state-sponsored prayer into the schools. Bown intends to take his case to federal court.

South Carolina's recently enacted moment of silence law was spearheaded by Rep. Becky Meacham of (R-York). In an interview in the Columbia State she admitted that her real goal was school prayer legislation, but a moment of silence was the best she could do for now.

These back-door attempts to promote state-sponsored prayer in our public schools provide all the more reason to remind those pro-state-sponsored prayer in public school advocates of Justice Hugo Black's admonition: that "a union of government and religion tends to destroy government and degrade religion."

© 1998 Institute for First Amendment Studies, Inc.