Is Silence a Lemon?

By Shawn Healy

Last Thursday, the Illinois House of Representatives joined their Senate peers to override Governor Blagojevich's veto of a state law mandating a daily moment of silence in Illinois public schools. The statute reads as follows:

"In each public school classroom the teacher in charge shall observe a brief period of silence with the participation of all of the pupils therein assembled at the beginning of the school day. This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day."

Illinois joins 11 other states with a similar mandate, along with 23 others that allow for the teacher to voluntarily institute a daily moment of silence (Illinois was formerly a member of this group after passage of a 2002 law). Its implementation is to occur immediately, although the statute fails to spell out consequences for insubordination, not to mention potential punishments for unruly students who disturb the mandatory silence. Moreover, it says nothing about its duration.

These concerns considered, the mention of prayer as a potential option during the moment of silence, and the historical intent of mandated silence at schools, raises the First Amendment issue of the Establishment Clause, which reads: "Congress shall make no law respecting the establishment of religion..."

The Supreme Court first addressed the issue in the 1962 Engel case when it deemed New York's Regents Prayer unconstitutional. Speaking for the Court, Justice Hugo Black wrote, "the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government."

The Illinois law dodges this decision because it mandates a moment of silence, not a specific prayer, but read on.

The Court currently uses the so-called Lemon Test, a product of the 1971 case Lemon v. Kurtzman, to weigh Establishment Clause challenges. It is composed of three parts.

1. The statute must have a secular purpose.
2. Its primary effect can neither advance nor inhibit religion.
3. The statute cannot foster "excessive entanglement" with religion.

The answers to all three questions, by my count, are murky. We cannot be certain about the purpose of the law, although I am skeptical given the repeated attempts nationwide to institute prayer and its specific mention in the statute. By allowing for prayer during the moment of silence, it clearly does not inhibit religious practice, but it may advance it beyond what was already occurring in Illinois schools. Third, the statute probably doesn't reach the level of "excessive entanglement," but it does represent some degree of mixing church and state.

We must search elsewhere for a more definitive answer.

In a 1985 case, Wallace v. Jaffree, the Court considered an Alabama law that mandated a minute of silence in all public schools for "meditation or voluntary prayer." Sounds a lot like what the Illinois legislature cooked up, huh? Justice John Paul Stevens wrote for the majority, arguing that the law failed the first prong of the Lemon test given the state's former law mandating prayer. Stevens contended that the law "...had no secular purpose."

Representative Lou Lang (D-Skokie) feels the same about the Illinois statute he voted against. He said, "This doesn't mandate school prayer, but let's face it--that's what this is about."

Concurring opinions in the Alabama case, however, allowed for a statute that mandated a moment of silence with no mention of prayer. By this measure, Illinois is on thin ice.

Enter atheist and activist Rob Sherman, whose daughter is a 14-year old freshman at Buffalo Grove High School. He promises a lawsuit against Township High School District 214 upon implementation and will seek an immediate injunction. Sherman points to the minute his daughter will likely lose in her biology class each day, the equivalent of 3 hours over the course of a 181-day school year.

We'll await the verdict of Sherman's challenge to the latest product of our vaunted state legislature. This much we know. The Governor vetoed it because he thinks it erodes the barrier between church and state. Schools have scratched their heads as to why the law was passed, and how to effectively implement its vague language.

May a hundred lawsuits bloom.

1. For analysis of the statute's constitutionality by religious scholar Charles Haynes click here.
2. For an update on the act's implementation and first legal challenge, along with its place in the larger context of the "culture wars" click here.
3. To read about the first court decision considering the statute and barring an injunction click here.