In October 2007, the state of Illinois passed a law requiring its public schools to lead students each morning in a moment of silence for “reflection and student prayer.” Illinois already had a law on the books permitting schools to lead such moments of silence. But the Illinois General Assembly, overriding Gov. Rod Blagojevich’s veto, decided to strengthen the law by making moments of silence a requirement. Atheist Rob Sherman and his daughter, Dawn, a freshman at Buffalo Grove High School in Buffalo Grove, Ill., sued her school district, claiming that the new state requirement violated the U.S. Constitution.

Shortly thereafter, the Illinois House of Representatives voted to repeal the law so that a moment of silence would once again be permitted rather than mandated; the Illinois Senate, however, has not yet voted on the bill. Meanwhile, the U.S. District Court hearing Sherman’s claim has found that the Illinois law is probably unconstitutional and thus has blocked not only her school district but all Illinois school districts from requiring a moment of silence. But this is only a temporary order; it will likely be several months before the court decides whether to invalidate the law. This will depend on whether it finds that the law is actually, not just probably, unconstitutional.

Sherman’s suit is not unique. Indeed, it is one in a long line of constitutional cases over the past several years involving moment-of-silence statutes. Many states enacted this type of statute after two Supreme Court decisions in the early 1960s. One of the decisions, Engel v. Vitale (1962), prohibited school-sponsored prayer in public schools; the other, Abington School District v. Schempp (1963), prohibited Bible reading in public schools. According to the National Conference of State Legislatures, 36 states currently have moment-of-silence statutes – 23 permit teachers to lead a moment of silence, and 13 require a moment of silence.

Polls find that a majority of Americans favor the idea of a moment of silence in public schools. According to a 2005 Gallup poll, for example, American adults much prefer allowing a moment of silence for contemplation or silent prayer in public schools over a spoken prayer in public schools (69% vs. 23%). According to a separate 2005 Gallup poll, an even higher percentage (84%) of teenagers ages 13-17 favor allowing a “moment of silence to allow students to pray if they want to” in public schools.

The Supreme Court has repeatedly stressed that government actions in such matters must have a clearly secular purpose. In its only ruling on moment-of-silence statutes, Wallace v. Jaffree (1985), the court, by a 6-3 vote, invalidated an Alabama moment-of-silence law largely because its sponsor admitted that the statute’s sole purpose was “to return voluntary prayer to our public schools.” But in a concurring opinion that has influenced subsequent lower court decisions, Justice Sandra Day O’Connor wrote that she would have upheld the Alabama law if the legislature had shown a genuine secular purpose in passing it. Indeed, she explained, school-led moments of silence, unlike school-led prayers, are often permissible because they are not inherently religious and do not coerce participation in a religious act.

The majority opinion in Wallace along with Justice O’Connor’s concurrence had the Janus-like effect of striking down the Alabama moment-of-silence statute while simultaneously suggesting to lower courts that they may uphold such laws in certain circumstances – namely, when the laws have a secular purpose. And, indeed, lower courts have responded to the high court’s signals. Before the Wallace ruling, almost all courts that heard challenges to moment-of-silence statutes found such laws to be unconstitutional; since 1985, however, almost all court decisions have upheld moment-of-silence laws.

In the most recent lower court ruling on the issue, Croft v. Perry (2008), a U.S. District Court upheld a Texas law that mandates teachers to lead students in a moment of silence during which students may pray or engage in any other silent activity. The district court acknowledged that the case “present[ed] a close question because the Texas legislature was less than clear in articulating the [statute’s] secular purpose.” Nevertheless, the court upheld the law because it said the various committee meetings and floor debates on the bill indicated that the Texas legislature genuinely sought to accomplish the secular purpose of promoting “contemplation, seriousness and reverence.” This decision is currently on appeal before the 5th U.S. Circuit Court of Appeals.

Some legal experts have predicted that the Supreme Court ultimately may decide to hear another moment-of-silence case in order to eliminate lingering ambiguities in this area of the law. After Chief Justice John Roberts and Justice Samuel Alito joined the court in late 2005 and early 2006, some court watchers speculated that the court may be more likely to overrule its decision in Wallace. They reason that since Roberts and Alito expressed a preference for deferring to legislative judgment on church-state issues in Hein v. Freedom From Religion Foundation (2007), they might be likely to tip the court toward holding that all moment-of-silence statutes, regardless of legislative intent, are constitutional. But until then, courts, like the one addressing Sherman’s claim, will have to continue to scrutinize each statute’s legislative history for evidence of a secular purpose.

This analysis was written by Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life.

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