Silence in the Courtroom
By Shawn Healy
My analysis of the mandatory moment of silence required at the start of the day at public schools across the State of Illinois led me to Charles Haynes, senior scholar at the First Amendment Center, and a national expert on the subject of religious liberty. In addition to being an objective voice in the ever-intense culture wars, Charles was a key component of the Freedom Museum's advisory panel and one of three lead curators on the initial project.
I sent Charles the text of the statute and asked him to consider it in light of the Alabama case I referenced on Wednesday, for it appeared that the Supreme Court struck down a similar law in 1985. He disagrees, claiming "...there is nothing unconstitutional about this law. The Alabama 'moment of silence' law was struck down because a majority of the Supreme Court saw the legislative history as evidence that the law was an attempt to return state-sponsored prayer to the public schools."
The distinction, then, lies in the law's legislative history, sure to be revisited with the inevitable legal challenges surfacing in the coming months and years as the statute is applied.
Charles also referred to the potential exception specified in Justice O'Connor's concurring opinion. She "...indicated...that a genuinely neutral 'moment of silence' would be constitutional. Legislators have been careful about how their propose and word these laws ever since. The fact that the Illinois law mentions prayer as one of the options for students during the silence does not make it unconstitutional. As long as school officials do not encourage or promote prayer during that time, then the moment of silence does not violate the First Amendment. Listing prayer as one of the (obvious) activities students may engage in while silent is fine as I read current law."
Charles suggests that similar laws have been implemented elsewhere (Virginia for one) without disturbing the "wall of separation" between church and state, with a few exceptions. As a result, he finds no evidence that the Illinois law "...violates the First Amendment and...doubt(s) it can be successfully challenged in court."
The matter of whether this is sound policy remains in dispute. Some suggest we tread ever closer to the slippery slope of knocking down the revered wall, but Charles dissents, at least in this case. He "...tend(s) to think it is an appropriate accommodation for those many Americans who believe time should be set aside in public schools to acknowledge God. Even though students may pray in public schools today-- alone or in groups -- many people still want some formal time that is set aside for prayer -- or at least the option of prayer. A genuinely neutral moment of silence is one way to accommodate those people without violating the First Amendment."
The master has spoken, and his pupils are better informed, as always. Thanks, Charles!
I sent Charles the text of the statute and asked him to consider it in light of the Alabama case I referenced on Wednesday, for it appeared that the Supreme Court struck down a similar law in 1985. He disagrees, claiming "...there is nothing unconstitutional about this law. The Alabama 'moment of silence' law was struck down because a majority of the Supreme Court saw the legislative history as evidence that the law was an attempt to return state-sponsored prayer to the public schools."
The distinction, then, lies in the law's legislative history, sure to be revisited with the inevitable legal challenges surfacing in the coming months and years as the statute is applied.
Charles also referred to the potential exception specified in Justice O'Connor's concurring opinion. She "...indicated...that a genuinely neutral 'moment of silence' would be constitutional. Legislators have been careful about how their propose and word these laws ever since. The fact that the Illinois law mentions prayer as one of the options for students during the silence does not make it unconstitutional. As long as school officials do not encourage or promote prayer during that time, then the moment of silence does not violate the First Amendment. Listing prayer as one of the (obvious) activities students may engage in while silent is fine as I read current law."
Charles suggests that similar laws have been implemented elsewhere (Virginia for one) without disturbing the "wall of separation" between church and state, with a few exceptions. As a result, he finds no evidence that the Illinois law "...violates the First Amendment and...doubt(s) it can be successfully challenged in court."
The matter of whether this is sound policy remains in dispute. Some suggest we tread ever closer to the slippery slope of knocking down the revered wall, but Charles dissents, at least in this case. He "...tend(s) to think it is an appropriate accommodation for those many Americans who believe time should be set aside in public schools to acknowledge God. Even though students may pray in public schools today-- alone or in groups -- many people still want some formal time that is set aside for prayer -- or at least the option of prayer. A genuinely neutral moment of silence is one way to accommodate those people without violating the First Amendment."
The master has spoken, and his pupils are better informed, as always. Thanks, Charles!
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