Monday, October 18, 2010
A three-judge panel of the Seventh Circuit on Friday upheld an Illinois law requiring a moment of silence at the beginning of each school day. The case, Sherman v. Koch, involved this provision:
Period of Silence. Sec. 1. In each public school classroom the teacher in charge shall observe a brief period of silence with participation of all the pupils therein assembled at the opening of every 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.
The provision was previously discretionary, but the legislature in 2007 changed the "may" to "shall" (as in "teacher in charge shall observe") over the governor's veto.
Two of the three judges held that the provision satisfied the three-part Lemon test:
Secular Purpose. The majority ruled that the legislature enacted the moment of silence in order to help students get settled for the day. They relied upon the plain language of the provision--the choice that students have under the provision to engage in "silent reflection on the anticipated activities of the day"--in concluding that the legislature's purpose was secular.
Advance or Inhibit Religion. The majority ruled that the statute as written neither advanced nor inhibited religion. The provision as written need not necessarily advance or inhibit religion, and the plaintiffs (in their facial challenge) didn't show that the provision was applied in a way that advanced religion.
Entanglement. This wasn't at issue in the case.
The majority also concluded that the provision was not unconstitutionally vague.
Judge Williams dissented, taking aim particularly at the legislative purpose:
So while I recognize that we assess a legislature's stated purpose with some deference, let's call a spade a spade--statutes like these are about prayer in schools. In my view, the legislature's decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the "hollow guise" of a mandated period of silence. While the secular purposes articulated by the state might not be "shams," it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones. I share the concerns raised by a number of legislators who expressed their doubts about the true purposes behind amending the Act.
Op. at 41-42 (citation omitted).