Twenty-five years ago, in the celebrated case of Engle vs. Vitale, the United States Supreme Court held that the establishment clause of the First Amendment precluded the board of education of Union Free School District Number 9, Hyde Park, New York, from causing the following prayer to be said aloud at the beginning of the school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The Court, through Justice Black, concluded that the practice was unconstitutional because it was “part of a governmental program to further religious beliefs” that “breach[ed] the constitutional wall of separation between Church and State.” In Karcher vs. May (no. 85–1551), the Court recently faced, but ultimately did not decide, whether the New Jersey legislature violated Engel’s constitutional strictures by providing a moment of silence at the start of each school day during which students could ponder, daydream, meditate, plan a date, or—if they chose—pray.
The question of private devotion in the public schools has been a contentious one since the Engel decision. Persons opposed to any official recognition of divinity have used the decision to argue for the extirpation of all reference to deity from public life. On the other hand, the decision has been used as emotional fodder by radicals of another ilk to whip devotees into furious indignation over the banishment of God from the classroom. Whatever the perspective, the decision simply resists receding quietly into the constitutional background.
The continuing debate over private devotion in the public schools has many facets. The problem can be approached on a historical basis. Those who favor a “strict” or “original intent” construction of the Constitution insist that Engel and other establishment clause decisions are flatly inconsistent with the goals originally animating the First Amendment. Alternatively, the controversy can be analyzed somewhat more pragmatically by focusing not on what the Founding Fathers thought or intended but rather on whether prayer or moments of silence in the public schools threaten principles that have come to be fundamental to American democracy. This has been the approach taken by the Court during the past several decades. But whatever the analytical approach, it is my contention that providing public schoolchildren with a moment of silence during which they can ponder, meditate, or pray does not transgress the proscriptions of the First Amendment’s establishment clause.
A Moment of Silence in Historical Perspective
Recently, it has been somewhat in vogue for conservative legal scholars to attack the historical foundation for the Court’s religion clause cases. The “wall of separation between Church and State,” upon which Engel and other establishment clause decisions are based, has been decried by Chief Justice Rehnquist, for one, as a “metaphor based on bad history . . . which has proved useless as a guide to judging.” Indeed, the problems with the church-state “wall” become apparent upon even cursory examination.
In the first place, Thomas Jefferson—the first person to use the “wall” construct—was out of the country at the time the First Amendment was debated and adopted. He is, accordingly, a “less than ideal source of contemporary history as to the meaning of the Religion Clauses.” Moreover, the records of the debates surrounding the drafting of the First Amendment suggest that the primary concerns of the Founding Fathers were to prevent establishment of a national church and the preference of one religious sect over another. They did not set out to construct a “wall” that would preclude any government acknowledgment of or even generalized aid to religion. Indeed, it is quite clear that the drafters of the First Amendment did not even intend to prohibit limited governmental endorsement of religion. One day after the House of Representatives voted to adopt the form of the First Amendment that was ultimately ratified, it passed a resolution asking George Washington to issue a Thanksgiving Day proclamation.
Thus the men who drafted and adopted the establishment clause of the First Amendment almost certainly did not perceive in it a “wall” that would prohibit schoolchildren from voluntarily acknowledging their “dependence” upon God or begging his “blessings upon us, our parents, our teachers and our Country.” It follows a fortiori that they would not have considered a moment of silence statute, which merely provides a moment for meditation or prayer by those who want to pray, unconstitutional. A moment of silence ceremony (or even a voluntary, nondenominational prayer, such as that involved in Engel) that does not seriously threaten creation of a state church or evidence hostility to any particular creed seems fairly far removed from the core concerns that prompted enactment of the First Amendment. From a historical or “original intent” viewpoint, therefore, the constitutionality of a moment of silence provision such as that enacted by the New Jersey legislature should be unquestionable.
It is, however, quite unlikely that the moment of silence debate will be settled by pointing out the faulty historical footing of Engel. Two terms ago, in Wallace vs. Jaffree, the Supreme Court expressly rejected a strict historical approach to the establishment clause. The United States District Court for the District of Alabama had upheld the constitutionality of a statute that explicitly returned prayer to the public schools on the grounds that the Supreme Court had erred in Engel and other cases by applying the strictures of the First Amendment to the states. From a historical point of view, the district court was probably correct: the Founding Fathers did not intend the religion clauses to apply to the states, as evidenced by the persistence of state-established churches in Massachusetts, New Hampshire, Maryland, and Rhode Island well into the nineteenth century. Nevertheless, the Supreme Court summarily affirmed the Court of Appeals’ reversal of the lower court’s holding.
The writers of the establishment clause may well have never dreamed that preventing the federal government from establishing a national church would in turn hobble the states, but “original intent” is no longer controlling in this sensitive area of constitutional law. The Supreme Court began applying various provisions of the Bill of Rights to the states in the late nineteenth century, and it is simply too late in the day to abandon that course. Indeed, most ordinary citizens would be shocked at the mere suggestion that, although the federal government could not establish a church, their state legislatures could. The current controversy over moments of silence in the public schools likely will not be resolved by pointing out to the Supreme Court that its decision in Engel would receive a flunking grade if submitted as a paper in a constitutional history course.
A Moment of Silence in the Modern Court
Rather than take a strictly historical approach to establishment clause issues, the modern Court has analyzed several factors to determine whether particular government actions unduly involve the church or state in the affairs of the other. Indeed, only one case decided during the past twenty years, Marsh vs. Chambers, has utilized a strict historical analysis of an establishment clause issue. Instead, beginning with its 1971 decision in Lemon vs. Kurtzman, the Court has quite regularly applied a three-pronged test to determine the constitutionality of governmental activities ranging from the provision of bus transportation to parochial school students to the erection of a Christmas crèche in a city park. Under that test, government actions challenged under the establishment clause must meet the following criteria: “First, the [action] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster ‘an excessive government entanglement with religion.’”
The Court’s application of the Lemon factors has been fairly consistent. However, because state action must meet all three criteria in order to pass constitutional muster, and because the proper application of the three factors to concrete fact is almost always debatable, the results obtained from the Lemon test can only be described as spotty and inconsistent. But despite the difficulties of the Lemon test, no majority of the Court has shown an inclination to abandon it.
Application of the Lemon test to a moment of silence statute is problematic. Depending on the predilections of individual jurists, a simple moment of silence can be viewed as violating all or none of the Lemon factors. The district court in Karcher vs. May, for example, concluded that the New Jersey moment of silence statute violated all three prongs of the test. Even though the state urged before the trial court that a moment of silence had the secular purpose of providing a “transition” between nonschool and school activities—and supported that assertion with significant testimony by experienced educators and other experts—the trial court rejected that proffered purpose as an “after the fact rationalization.” The district court made this finding despite its recognition that “a brief period of silence serves a transition purpose.” It further found that a moment of silence had the “effect” of advancing religion by “mandat[ing] a period at the start of each school day when all students would have an opportunity to engage in prayer.” Finally, the court found that the statute was unduly “entangling” because a “required minute of silence would put children and parents who believed in prayer in the public schools against children and parents who do not.”
The United States Court of Appeals for the Third Circuit, applying the same legal test, disagreed with virtually all of the district court’s reasoning. The court of appeals rejected the holding that the statute violated the “effects” test simply by “designating a time and place when children and teachers may pray,” reasoning that the state “equally injects itself into religious matters when it designates a time and place when children and teachers may not pray.” It similarly rejected the notion that the statute was impermissibly “entangling” because of its potential for divisiveness. Noting the reality that any governmental action to accommodate religious belief will upset someone, the court of appeals wrote, “If political divisiveness were the test for entanglement, no governmental accommodation of religion would survive Establishment Clause scrutiny.” But despite its well-reasoned conclusion that the moment of silence statute did not violate the “effects” and “entanglement” prongs of Lemon, the court of appeals affirmed the district court on the grounds that the asserted secular purpose for the statute was “pretextual.”
The question whether the New Jersey moment of silence statute has a secular “purpose” is not readily answered. In a lengthy concurring opinion to a decision invalidating Bible reading in the public schools, handed down the year after Engel, Justice Brennan suggested that states could avoid violating the establishment clause but still accommodate the desires of those students who want to pray by providing for a brief moment of silence at the start of each school day. Such a ceremony, he suggested, would serve the “solely secular ends” of “fostering harmony and tolerance among the pupils, enhancing the authority of the teacher, and inspiring better discipline.”
By making the apparently sensible suggestion that a state could serve a secular purpose and still accommodate the religious needs of its students by adopting a moment of silence ceremony, Justice Brennan set up a subtle “Catch-22” that was seized upon by the district court in Karcher to invalidate the New Jersey statute. Yes, the district court acknowledged, a moment of silence may have a secular purpose. However, because it is also adopted to facilitate religious practice, to provide a “period at the start of each school day when all students would have an opportunity to engage in prayer,” the secular purpose ipso facto converts to a sectarian purpose: the accommodation of prayer. The court of appeals in Karcher failed to find its way out of this box. Indeed, the court explicitly noted that the New Jersey statute did not endorse or encourage prayer and that the only possible sectarian “purpose” for the moment of silence was to accommodate the desires of those who wanted to pray. Nevertheless, the court of appeals refused to let the state out of the logical conundrum created by the trial court. A moment of silence may have a secular purpose, but because it also has the purpose of accommodating religious belief, it is constitutionally infirm.
The “heads you lose, tails I win” reasoning of the lower courts in Karcher could have been easily rectified by the Supreme Court. The Court’s prior cases applying the “purpose” prong of Lemon established that a statute need not have “exclusively secular” objectives to pass constitutional muster. It need only have “a secular purpose.” The fact that a moment of silence accommodates religious belief in addition to providing a secular transition period from nonschool to school life should be constitutionally irrelevant.
But while this approach to the “purpose” prong avoids the logical traps of the lower courts’ analysis, it too is troubling. If indeed all that is needed under Lemon’s “purpose” test is a plausible secular purpose, and if any such purpose will do, there is very little substance left to the inquiry. Human ingenuity being what it is, state or national legislatures will have little difficulty articulating some plausible secular goal for almost any undertaking—no matter how entwined with matters of religion. Although most such actions would probably run afoul of one of the other Lemon prongs—effect or entanglement—the fact remains that merely requiring “a” secular purpose renders the “purpose” test a virtual dead letter. Yet the alternative, exemplified by the logical juggernaut created by the lower courts in Karcher, where any plausible sectarian purpose is fatal, is equally unacceptable.
Faced with these legal realities, I have concluded that the Lemon test does not promote thoughtful constitutional analysis of moment of silence statutes. Such statutes, as the court of appeals in Karcher noted, should be acceptable under the “effect” and “entanglement” tests. But the ease with which those factors can be manipulated to support the contrary result—as exemplified by the district court’s opinion in Karcher—is troublesome. And the question whether such statutes have a “secular purpose” may not be worth asking. The answer will always depend upon the point from which the questioner begins, and the selection of that starting point will always be little more than an ipse dixit.
The Core Concerns:
Coercion and Debilitation of Government and Religion
Because of the difficulties inherent in the consistent and reasoned application of the Lemon test, the validity of a moment of silence statute should not depend, in the final analysis, upon a rote inquiry into purpose, effect, and entanglement. Rather, the constitutional question should turn on whether such a statute transgresses the fundamental concerns that led the Court to invalidate the recitation of a school prayer in Engel. In that case, the Court was troubled primarily by a prescribed prayer’s coercion of the individual right of conscience and its concomitant debilitation of both government and religion. Legislative enactments which accommodate religious expression but which do not coerce individual conscience or debilitate religious expression should pass constitutional muster.
In striking down state-prescribed prayers, the Court wrote, “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” The Court further noted that “a union of government and religion tends to destroy government and to degrade religion.” A neutral moment of silence provision, however, does not pose any serious threat to individual conscience or the essential autonomy of church and state. Perhaps more importantly, the provision of an opportunity for private contemplation or introspection facilitates the exercise of individual rights. The establishment clause should not preclude governmental accommodation of the felt need of many persons for voluntary religious expression.
As noted earlier, the Supreme Court in Jaffree summarily invalidated a statute that provided for the recitation of a state-sponsored prayer. It also invalidated a moment of silence provision enacted by the state of Alabama. It did so, however, only because the legislative history of that statute demonstrated that the provision’s sole purpose was to return prayer to the public schools. For example, the principal legislative sponsor of the Alabama statute testified that he had no other purpose for the statute other “than returning voluntary prayer to the public schools.” Moreover, the statute invalidated in Jaffree, which provided a moment of silence for “meditation or voluntary prayer,” was enacted despite the presence of an earlier statute that authorized a moment of silence for “meditation.” In such circumstances, the Court concluded that the statute was “enacted to convey a message of State endorsement and promotion of prayer.” Because such an “endorsement” could have the effect of intimidating or coercing those who chose not to pray, the statute suffered the defect found fatal in Engel.
Other moment of silence statutes, so long as they neither encourage nor discourage prayer, should not suffer the same constitutional infirmities. The New Jersey statute, for example, provided:
Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a one minute period of silence to be used solely at the discretion of the individual student, before opening exercise of each school day for quiet and private contemplation or introspection.
Such statutes do not create the same dangers as the recitation of a state-prescribed prayer. Unlike the established prayer in Engel, neutral moment of silence statutes protect “both the right to speak freely and the right to refrain from speaking at all”; they plainly are not “an instrument for fostering public adherence to an ideological point of view [an individual] finds unacceptable.” Moreover, such statutes do not disrupt the essential autonomy of church and state. First, neutral moment of silence statutes are permissive only. They do not require students to do anything other than remain silent—students need not close their eyes, bow their heads, or assume any posture suggestive of religion or irreligion. Second, the language of such statutes is absolutely neutral as to religion. Prayer is not even mentioned. Third, in contrast to the Alabama moment of silence statute, a truly neutral statute is not enacted exclusively to promote prayer. Several New Jersey legislators, for example, suggested that a moment of silence is provided “to help restore order in the classroom.” Finally, unlike the prayer at issue in Engel, a moment of silence does not involve the state—or the church—in religious indoctrination of any kind. Thus, on the surface, such statutes do not run afoul of the evils identified in Engel: they cannot coerce individual conscience because they do not require any particular thought; they do not interfere with church-state autonomy because they do not contemplate the involvement of either entity in the affairs of the other.
Moreover, unlike the situation in Engel, there is good reason to conclude that a moment of silence facilitates rather than inhibits the exercise and enjoyment of precious individual liberties. The argument has occasionally been made that, because compulsory attendance at public school effectively precludes many opportunities for personal prayer, a moment of silence to accommodate such activity is not only permissible but is in fact constitutionally required by the free exercise clause (which, of course, prohibits government from interfering with the free exercise of religion). The Court in Jaffree suggested that such an argument is weak. But even though the state may be under no constitutional command to provide an opportunity for private prayer, the “free exercise” argument cannot be ignored. The provision of a moment of silence in the context of a public school—a structured, compulsory state institution where contemplative opportunities are limited—necessarily furthers values protected by the free exercise clause. As Justice Brennan has noted, “even when the government is not compelled to do so by the Free Exercise Clause, it may to some extent act to facilitate the opportunities of individuals to practice their religion.”
State efforts to facilitate opportunities for voluntary private devotion in the public schools should be sustained so long as they do not—as in Engel—infringe upon “the individual’s freedom to choose his own creed.” A statute which simply “permits” a moment for “quiet and private contemplation or introspection” at the sole “discretion of the individual student,” is neutral among religions and between religion and nonreligion. Such a statute neither favors one religion over another nor “conveys a message of endorsement or disapproval of religion.”As with the released-time religious study program upheld thirty-five years ago in Zorach vs. Clauson, a simple moment of silence leaves students to their “own desires as to . . . [their] religious devotions, if any.”
The Court in Jaffree noted that an attempt “to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.” The Court has also noted that “in our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic.” The fundamental goal of the religion clauses of the First Amendment should not become the removal of all traces of religion from public life. On the contrary, the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” By providing its schoolchildren with the opportunity for voluntary, private introspection at the start of each schoolday, state legislatures do not transgress constitutional limits. Rather, as the Supreme Court noted in Zorach, by “adjusting the schedule of public events to sectarian needs” they “follow the best of our traditions.”
