Sherman Ex Rel. Sherman v. Koch

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1455

D AWN S. S HERMAN, a minor, through

R OBERT I. S HERMAN, her father and

next friend, on behalf of herself and

all others similarly situated,

Plaintiff-Appellee,

v.

D R. C HRISTOPHER K OCH, State

Superintendent of Education,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 6048—Robert W. Gettleman, Judge.

A RGUED F EBRUARY 10, 2010—D ECIDED O CTOBER 15, 2010

Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.

M ANION, Circuit Judge. In 2007, Illinois amended

Section 1 of the Silent Reflection and Student Prayer Act

making mandatory a period of silence in public schools;

2 No. 09-1455

prior to this amendment, teachers had the option of

observing a period of silence at the beginning of the

school day. After the Illinois legislature amended

Section 1, Dawn Sherman, through her father, Robert I.

Sherman, sued Christopher Koch in his official capacity

as Superintendent of the Illinois State Board of Educa-

tion (“Koch”), and Township High School District 214

(“District 214”), alleging that Section 1 was facially

unconstitutional. The district court certified a plaintiff class

of all public school students in Illinois, with Sherman as

the class representative (“Sherman”), and a defendant class

of all public school districts in Illinois, with District

214 as the class representative. The parties filed cross-

motions for summary judgment. The district court

granted Sherman summary judgment, concluding that

Section 1 violated the first and second prongs of the

Lemon test and thus the Establishment Clause. Specif-

ically, the district court held that Section 1 lacked a

secular purpose and that it had the primary effect of

advancing or inhibiting religion by favoring religions

which engage in silent prayer (over religions which do

not). The district court further held that Section 1 was

unconstitutionally vague in violation of the Due Process

Clause of the Constitution because it did not specify

the length of the period of silence, how the period of

silence would be implemented, or the penalty for vio-

lating the statute. The district court then permanently

enjoined the defendants from implementing or enforcing

Section 1. Koch appeals.

On appeal, Sherman relies extensively on Wallace v.

Jaffree, 472 U.S. 38, 56 (1985), wherein the Supreme

No. 09-1455 3

Court held that Alabama’s moment of silence law lacked

any secular purpose and was thus unconstitutional.

She likewise points to the Third Circuit decision in May

v. Cooperman, 780 F.2d 240, 242 (3d Cir. 1985), which

held that the New Jersey moment of silence law violated

the Establishment Clause. Koch responds that unlike

Wallace and May, where there was no secular purpose

justifying the moment of silence laws at issue, Illinois’s

period of silence law provided the secular purpose of

having a uniform moment of quiet reflection to calm

school children before they start the day. Thus, Koch

claims, Section 1 passes constitutional muster, as do the

Georgia, Virginia, and Texas moment of silence laws

upheld by the Eleventh, Fourth and Fifth Circuits in

Bown v. Gwinnett County School District, 112 F.3d 1464

(11th Cir. 1997), Brown v. Gilmore, 258 F.3d 265 (4th Cir.

2001), and Croft v. Governor of Texas, 562 F.3d 735 (5th Cir.

2009). We agree. Like the statutes at issue in Bown,

Brown, and Croft, Section 1 serves a secular purpose

and does not have the principal or primary effect of

promoting religion. Section 1 also is not unconstitu-

tionally vague. Accordingly, we reverse and remand.

I.

Since 1969, Illinois has had a statute authorizing a

period of silence in public school classrooms. The

original statute provided:

An Act to authorize the observance of a brief period

of silence in public school classrooms at the opening

of each school day.

4 No. 09-1455

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 1. In each public school classroom the

teacher in charge may observe a brief period of

silence with the 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.

Ill. Rev. Stat. 1969, ch. 122, par. 771.

In 1990, as part of an act that assigned short titles

to hundreds of statutes, the law was given the short

title, “the Silent Reflection Act.” Pub. Act 86-1324, § 933,

eff. Sept. 6, 1990. Then, in 2002, the Illinois legisla-

ture added a new section to the Act, Section 5, which

set forth a student’s right to free exercise of religion

(and specifically the right to engage in non-disruptive

prayer) and his right to be free from pressure

from the State to engage in or refrain from religious

observance. 105 ILCS 20/5. 1 Simultaneously, the Illinois

1

In full, Section 5 provides: “In order that the right of every

student to the free exercise of religion is guaranteed within

the public schools and that each student has the freedom to not

be subject to pressure from the State either to engage in or to

refrain from religious observation on public school grounds,

students in the public schools may voluntarily engage in

individually initiated, non-disruptive prayer that, consistent

(continued...)

No. 09-1455 5

legislature amended the short title of the act to “the

Silent Reflection and Student Prayer Act.” Pub. Act 92-

832, eff. Jan. 1, 2003.

The Silent Reflection and Student Prayer Act remained

unchanged until early 2007 when the Illinois legislature

passed a bill amending Section 1, making the period of

silence mandatory by changing the phrase “may observe”

to “shall observe.” After this amendment, Section 1 read:

Period of silence. § 1. In each public school classroom

the teacher in charge shall observe a brief period of

silence with the participation of all the pupils therein

assembled at the opening of every school day. This

period shall not be conducted as a religious exer-

cise but shall be an opportunity for silent prayer

or for silent reflection on the anticipated activities of

the day.

105 ILCS 20/1 (emphasis added).

Then-Governor Rod Blagojevich vetoed the amend-

ment, but the Illinois legislature overrode the veto and

the amendment became effective on October 11, 2007.

On October 26, 2007, Dawn Sherman, through her

father, sued her high school, District 214, under 42 U.S.C.

§ 1983, seeking declaratory and injunctive relief that

1

(...continued)

with the Free Exercise and Establishment Clauses of the

United States and Illinois Constitutions, is not sponsored,

promoted, or endorsed in any manner by the school or any

school employee.” 105 ILCS 20/5.

6 No. 09-1455

Section 1 is facially invalid under the First Amendment.

Less than one week later, Sherman filed an amended

class action complaint for declaratory and injunctive

relief under 42 U.S.C. § 1983 against District 214 and Koch,

alleging that Section 1 is facially invalid under the

First Amendment because it effects an establishment of

religion and under the Fourteenth Amendment because

it is unconstitutionally vague.

In November 2007, the district court preliminarily

enjoined the defendants from implementing or en-

forcing Section 1. Sherman then moved for certification

of a bilateral class. The district court certified a plaintiff

class of all students in public schools in the State of

Illinois, represented by Sherman, and a defendant class

of all public school districts in the State of Illinois, repre-

sented by District 214. The district court then ex-

tended the preliminary injunction to all defendant class

members.

Sherman, supported by amicus curiae the American

Civil Liberties Union (“ACLU”), then moved for sum-

mary judgment, arguing that Section 1 violates the Estab-

lishment Clause because it lacks a secular purpose, en-

dorses prayer and discriminates against religions

whose beliefs do not embrace the concept of momentary,

silent prayer. Sherman also claimed that Section 1 is

unconstitutionally vague because it does not specify

how the period of silence will be implemented or the

penalties for not complying with the statute.

Koch, supported by amicus curiae Alliance Defense

Fund (“ADF”), also filed a motion for summary judg-

No. 09-1455 7

ment. He argued that Section 1 serves the secular pur-

pose of providing a uniform moment of quiet reflection

to calm school children before they start the day. And

while acknowledging the law could be misapplied to

endorse prayer, Koch asserted that the statute is neutral

on its face and offers secular benefits to all students.

Koch further argued that the law is not unconstitu-

tionally vague in all its applications, as many school

districts had successfully implemented the period of

silence.

The district court denied Koch’s motion for summary

judgment and granted Sherman’s motion, concluding

that Section 1 violates the Establishment Clause and is

unconstitutionally vague in violation of the Due Process

Clause of the Fourteenth Amendment. Specifically, the

district court concluded that Section 1 violates the

first prong of the Lemon test, see Lemon v. Kurtzman, 403 U.S.

602 (1971), because it had no clear secular purpose and the

stated purpose was a sham. The district court also con-

cluded that Section 1 violates the second prong of Lemon

because its primary effect is to advance or inhibit reli-

gion. The district court further held that Section 1 was

unconstitutionally vague because it “provides no direc-

tion as to how the ‘period’ of silence should be imple-

mented, how long the period should last, and whether

pupils would be permitted to pray in a manner that

was either audible or required movement.” Sherman v.

Township High School Dist. 214, 594 F.Supp.2d 981, 990

(N.D. Ill. 2009). The district court then permanently

enjoined the defendants from implementing or enforcing

8 No. 09-1455

Section 1. Koch appeals.2

II.

A. Standing

Initially we consider Sherman’s standing, because if a

class representative lacks standing at the time the com-

plaint is filed, the entire class action should be dis-

missed. Walters v. Edgar, 163 F.3d 430, 437 (7th Cir. 1998)

(“[T]he present suit was properly dismissed for want of

standing, dooming the class action because [the named

plaintiffs] lacked standing when they filed the suit . . . .”).

To have standing, “a plaintiff must allege (1) that he

has suffered an injury in fact (2) that is fairly traceable to

the action of the defendant and (3) that will likely be

redressed with a favorable decision.” Books v. Elkhart

County, Ind., 401 F.3d 857, 861 (7th Cir. 2005) (internal

quotation and citation omitted).

Amicus ADF argues that Sherman lacks standing

because she has not suffered an injury. As ADF sees it,

Sherman lacks a cognizable injury because she has not

2

On appeal, the ACLU and ADF again filed amicus curiae briefs.

Additionally, Wallbuilders, Inc., and the attorneys general of

seventeen states (Alabama, Florida, Idaho, Indiana, Louisiana,

Mississippi, Nevada, North Carolina, North Dakota, Ohio,

Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Virginia,

and Washington) filed amicus curiae briefs in support of Koch.

We thank these parties for their helpful contributions to the

court.

No. 09-1455 9

suffered direct and unwelcome exposure to religious

exercises, practices, or words—rather, Section 1 only

“subjects Plaintiff to brief silence.” The Fifth Circuit

rejected this same argument in Croft, 562 F.3d 735. See

infra at 25-26. There, the plaintiff had challenged Texas’s

moment of silence law and ADF, who also appeared

as an amicus in that case, argued that Croft lacked

standing because a moment of silence did not injure

the plaintiff. Croft, 562 F.3d at 745. The Fifth Circuit

rejected that argument, noting that “that is a question

to be determined on the merits, which must come after

determining whether we have jurisdiction to hear the

case.” Id. at 746. The court further held that the Crofts

had standing because “their children are enrolled in

Texas public schools and are required to observe the

moment of silence daily.” Id.

Similarly, in this case, Sherman is a student at a

public school in Illinois and under Section 1 is subject to

a mandatory period of silence. Sherman alleges that

Section 1’s period of silence exposes her to a religious

practice in violation of the Establishment Clause.

Whether that is true is a question of the merits of her

claim, not of her standing to bring the claim; her status

as a student establishes her standing to sue. Id.

B. Establishment Clause

Turning, then, to the merits: Sherman first argues

that Section 1 violates the First Amendment. The First

Amendment provides, in relevant part, that “Congress

10 No. 09-1455

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; . . . .” U.S.

Const. amend. I. The Supreme Court has held that the

Fourteenth Amendment imposes the substantive limita-

tions of the Establishment Clause on the legislative

power of the States and their political subdivisions. Santa

Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). The

Supreme Court has further held in Lemon v. Kurtzman,

403 U.S. 602 (1971), that to be constitutional: “First, the

statute must have a secular legislative purpose; second,

its principal or primary effect must be one that neither

advances nor inhibits religion; finally, the statute must

not foster an excessive government entanglement with

religion.” Id. at 612-13 (internal quotations and cita-

tions omitted). We consider each prong of the Lemon test

in turn.

1. Secular Purpose

Under Lemon, the first question is whether the law at

issue has a secular legislative purpose. Lemon, 403 U.S. at

613. A statute may be motivated in part by a religious

purpose and nonetheless satisfy the first criterion of

Lemon. Wallace v. Jaffree, 472 U.S. 38, 56 (1985). Thus, “a

secular purpose need not be the exclusive one; it [is]

sufficient if the government had ‘a secular purpose.’ ”

Bridenbaugh v. O’Bannon, 185 F.3d 796, 800 (7th Cir. 1999)

(emphasis added). As we explained in Metzl v. Leininger,

57 F.3d 618, 620 (7th Cir. 1995), “[a] law that promotes

religion may nevertheless be upheld . . . because of the

secular purposes that law also serves.” Finally, we note

No. 09-1455 11

that the Supreme Court has recognized that the pur-

pose prong of Lemon has rarely been determinative

“because [the] government does not generally act uncon-

stitutionally, with the predominant purpose of advancing

religion.” McCreary County, Ky. v. American Civil Liberties

Union of Ky., 545 U.S. 844, 859, 863 (2005). And in those

rare cases where the Court has invalidated a statute

because of an illegitimate purpose, “openly available

data supported a commonsense conclusion that a

religious objective permeated the government’s action.”

Id. at 863.

In this case, Koch asserts that Section 1 serves the

secular purpose of providing a moment of silence at the

beginning of each school day to calm students and ready

them for the school day. Sherman concedes that quieting

pupils down at the beginning of the school day serves

a valid pedagogical purpose. However, Sherman con-

tends that Illinois’s stated secular purpose is not sin-

cere—that it is a sham—and that the real purpose is

to promote prayer.

This court recognized in Indiana Civil Liberties Union

v. O’Bannon, 259 F.3d 766, 771 (7th Cir. 2001), that we

generally defer to the government’s articulation of a

secular purpose unless it is a sham. In assessing whether

a law has a secular purpose or the purpose is a sham,

we look to the “plain meaning of the statute’s words,

enlightened by their context and the contemporaneous

legislative history [and] the historical context of the

statute, . . . and the specific sequence of events leading

to [its] passage.” McCreary, 545 U.S. at 862 (internal quota-

tion marks omitted).

12 No. 09-1455

a. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)

Sherman argues that the language of Section 1 (i.e.,

that the period of silence “shall be an opportunity for

silent prayer or for silent reflection on the anticipated

activities of the day”), 105 ILCS 20/1, coupled with

Section 1’s legislative history and historical context,

demonstrates that the asserted secular purpose is a

sham. In support of her position, Sherman relies heavily

on the Supreme Court’s opinion in Wallace, 472 U.S. 38,

in which the Court considered the constitutionality of

Alabama’s moment of silence law, which provided: “At

the commencement of the first class of each day in all

grades in all public schools the teacher in charge of the

room in which each class is held may announce that a

period of silence not to exceed one minute in duration

shall be observed for meditation or voluntary prayer,

and during any such period no other activities shall be

engaged in.” Id. at 40 n.2 (quoting Alabama Code § 16-1-

20.1). The Court held that Alabama’s moment of silence

law lacked any secular purpose. Id. at 59-60. However,

while striking the Alabama statute in Wallace, the

Supreme Court recognized that “[t]he legislative intent 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 school day.” See Wallace,

472 U.S. at 59.

This case is significantly different than Wallace. In

Wallace there was no evidence of a secular purpose;

rather, the asserted legislative purpose was to return

No. 09-1455 13

prayer to public schools. The sponsor of the moment of

silence law in that case “inserted into the legislative

record—apparently without dissent—a statement in-

dicating that the legislation was an ‘effort to return volun-

tary prayer’ to the public schools.” Id. at 56-57. The

bill’s sponsor later confirmed this purpose in court pro-

ceedings, testifying that he was the “prime sponsor” of

the bill and that the bill was an “effort to return

voluntary prayer to our public schools . . . it is a begin-

ning and a step in the right direction.” Id. at 43. The

bill’s sponsor also testified that apart from the purpose

to return voluntary prayer to public school, he had

“no other purpose in mind.” Id.

Wallace also involved a suspect historical context. The

statute challenged in Wallace was passed in 1981, even

though the state legislature had just recently (1978) autho-

rized a one-minute period of silence in all public

schools “for meditation.” Id. at 40. Then in 1982, the

state legislature enacted another provision authorizing

teachers to lead “willing students” in a prescribed prayer

to “Almighty God . . . the Creator and Supreme Judge

of the world.” Id. That historical context confirmed the

sponsor’s testimony that the moment of silence law

was just “a beginning and a step in the right direction” to

the “effort to return voluntary prayer to our public

schools.” Id. at 43.

Conversely in this case, the State has offered a

secular purpose for Section 1—establishing a period of

silence for all school children in Illinois to calm the stu-

dents and prepare them for a day of learning. The

14 No. 09-1455

plain language of the statute supports this secular

purpose by establishing a mandatory moment of silence:

“In each public school classroom the teacher in charge

shall observe a brief period of silence with the participa-

tion of all the pupils therein assembled at the opening of

every school day.” 105 ILCS 20/1. And emphatically

Section 1 declares: “This period shall not be conducted as

a religious exercise . . . .” Id. Thus, the plain language

disavows any religious purpose in Section 1.

Rather than exposing a sham, the legislative history

confirms the secular purpose of Section 1. Specifically,

the Senate sponsor, Senator Lightford, explained that,

under the 1969 version of the law some teachers were

observing a period of silence, but others—often in the

same school—were not. S. Proceedings, 95th Ill. Gen.

Assem., March 21, 2007, at 88. Lightford explained that

her intent in amending the law was to “create uniformity

across the State in all of our schools,” so that all public

school students would be given the same opportunity

for “meditation, moment of silence, reflection.” Id. She

further emphasized that the moment “should not be

conducted as a religious exercise,” but rather was “a

neutral act which affords students the opportunity to

reflect on whatever they wish, whether religious or not.”

Id. at 86. During debate on the bill, other members of

the House and Senate expressed support for a man-

datory moment of silence to quiet students and to

“instill a little meditative exercise” at the beginning of

the day. Id. at 87, 88 (statements of Sens. Cronin & Sieben);

see also id. at 89 (statements of Sen. Meeks); H.R. Pro-

ceedings, 95th Ill. Gen. Assem., May 31, 2007, at 63-64.

No. 09-1455 15

And throughout the debates no one in either the House

or Senate spoke of using the period of silence as a mecha-

nism to return prayer to the schools.

After the Governor vetoed the bill, the Senate and

House debated the propriety of overriding the veto.

During these debates, those supporting the bill again

spoke of the need for a mandatory moment of silence

to calm students at the beginning of the school day.

S. Proceedings, 95th Ill. Gen. Assem., Oct. 3, 2007, at 11;

H.R. Proceedings, 95th Ill. Gen. Assem., Oct. 11, 2007, at

95, 99. The Senate sponsor also reiterated that the period

of silence was not to be conducted as a religious exer-

cise. S. Proceedings, 95th Ill. Gen. Assem., Oct. 3, 2007,

at 11. And as with the debate on the original passage of

the bill, there were no statements indicating a legisla-

tive intent to return prayer to school.

Our dissenting colleague claims any secular purpose

is secondary to religious motives, citing statements

made during the House debate by opponents to the bill,

including comments made by one representative who,

speaking in support of sustaining Governor Blagojevich’s

veto, focused on the religious motivation of the constitu-

ents who called his office in support of Section 1.

(Dissent at 42). The dissent also asserts there are “troubling

statements in the record indicating religious motiva-

tions on the part of some of the Act’s supporters,” pointing

to a press report and the singing of a parody. (Dissent at

42-43). However, “what is relevant is the legislative pur-

pose of the statute, not the possibly religious motives of

the legislators who enacted the law.” Board of Education of

16 No. 09-1455

Westside Community Schools v. Mergens, 496 U.S. 226, 249

(1990) (plurality opinion). Even less relevant are the

motives of opponents to a bill and the varied motives of

constituent. Moreover, even assuming motivation was

relevant and that a press report could be considered

legislative history, Senator Lightford’s statement to a

newspaper reporter (that the General Assembly opens

every day with a prayer and the Pledge of Allegiance,

and that “I don’t get a choice” and “I don’t see why

students should have a choice”) has no bearing on

Section 1. The Illinois legislature may open its sessions

with a prayer by the assigned clergy for that day. Some

legislators may prefer silence. But Section 1 does not

likewise require schools to start the day with a prayer. In

fact, Section 1 expressly states that the period of silence

“shall not be conducted as a religious exercise.” 105 ILCS

20/1. Therefore, it is not reasonable to read the press

quote as an expression by Senator Lightford of a desire

to institute school prayer or as undermining the stated

secular purpose of Section 1. See Mueller v. Allen, 463

U.S. 388, 394-95 (1983) (stating that the Court is reluctant

“to attribute unconstitutional motives to the states, par-

ticularly when a plausible secular purpose for the

state’s program may be discerned from the face of the

statute”). Rather, the proposed amendment sought

solely to change the “may” to a “shall” in Section 1. Thus

the only mandate is for silence. Regarding the Simon

and Garfunkel take-off, neither Sherman nor the

ACLU relied on the singing of this parody as evidence

that the legislature’s stated secular purpose was a sham,

and we think rightly so; a few legislators singing a

parody does not evidence legislative intent, much less

No. 09-1455 17

overcome the clear statements of secular purpose made

by the legislature during debate.

In short, then, the debate of the initial bill and the

veto override overwhelmingly supports Illinois’s stated

secular purpose and provides a stark contrast to the

Wallace case. In Wallace, the bill’s sponsor inserted into

the legislative history a statement that the legislation

was an “effort to return voluntary prayer” to the public

schools. And the bill’s sponsor, during testimony at the

preliminary injunction stage, confirmed that was the

sole purpose of the statute. In contrast, here, the floor

debates confirm the asserted secular purpose.3

3

The Fifth Circuit noted in Croft, 562 F.3d at 748, n.7 that

“[w]here, as here, a valid secular purpose can be gleaned

from the text of the [moment of silence] statute at issue, we

are not convinced of the wisdom of reviewing legislative

history, an arduous and potentially risky task.” In Croft,

though, because the history supported the textual purpose,

the court found it “unnecessary to belabor the point.” Id.

We agree that reliance on legislative history to determine

whether a secular purpose is genuine or a sham is ques-

tionable, given that “what is relevant is the legislative purpose

of the statute, not the possibly religious motives of the

legislators who enacted the law.” Mergens, 496 U.S. at 249

(plurality opinion). Wallace, of course, did look to the legisla-

tive history behind Alabama’s moment of silence law, not to

second-guess an asserted secular purpose, but rather because

the only legislative purpose in that case was to return prayer

to public schools. Like the Fifth Circuit, though, we need not

belabor the point because the legislative history supports

the state’s asserted secular purpose.

18 No. 09-1455

Sherman also claims that the historical context demon-

strates that Section 1’s secular purpose is a sham, again

relying on Wallace. The historical context underlying

Section 1, however, differs significantly from that facing

the Court in Wallace. In Wallace, the historical context

made clear that Alabama was attempting to reintroduce

school prayer in a stepped approach: first by estab-

lishing a moment of silence in 1978, then in 1981 by

adding prayer to the statute, and finally, the following

year, by authorizing teachers to lead a prayer at the

beginning of the school day. Conversely, in this case,

the Illinois legislature adopted a period of silence in

1969 and the only change to that law came with the

2007 amendment making the period of silence manda-

tory.4 This timing contrasts sharply with Wallace’s

tightly choreographed historical context which moved

Alabama in four short years from a moment of silence to

a moment of teacher-led prayer.

4

The dissent believes Illinois’s “decision to make the Act

mandatory represents an effort to introduce religion into Illinois

public schools. . . .” (Dissent at 41-42). But making the moment

of silence mandatory (by changing the “may” to a “shall”),

changed nothing about the nature of Section 1. Section 1

always—since its original passage in 1969—listed silent prayer

as a permissible option. And the prayer option is no more

an effort to introduce religion into the public schools now

that the moment of silence is mandatory than it was in 1969

when Section 1 established a discretionary moment of silence.

No. 09-1455 19

b. Title of Act and Section 5 are Unrelated to Section 1

Sherman attempts to equate the historical context in

this case with Wallace by pointing to the change in the

title of the Act in 2002 from “the Silent Reflection Act” to

“the Silent Reflection and Student Prayer Act.” She

argues that the insertion of the word “prayer” in the

name of the Act confirms that the Illinois legislature

sought to promote religion. This argument completely

ignores the fact that the title of the Act was changed in

2002 when the Illinois legislature passed an entirely

separate law—Section 5—which addressed students’

right to pray and be free from state-sponsored prayer

in schools. Thus, the addition of “and Student Prayer

Act” to the title merely updates the Act’s title based on

the addition of a new section to the law.

Sherman and the ACLU also argue that the addition of

Section 5 itself is evidence of the Illinois legislature’s

desire to promote religion. They further assert that there

was no need for Illinois to pass a law allowing school

prayer because nothing prohibited the students from

praying. There are several flaws in this argument. First

and foremost, Sherman did not challenge the constitu-

tionality of Section 5. And even if she had, we see

nothing improper with the government attempting to

summarize constitutional protections in a statute. The

timing of Section 5 indicates that this is exactly what

the Illinois legislature had in mind as Section 5 was

adopted shortly after the Supreme Court issued its deci-

sion in Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000). In Santa Fe, the Supreme Court held that

20 No. 09-1455

student-led, student-initiated prayer before a football

game violated the Establishment Clause, but the Court

also stressed that “nothing in the Constitution as inter-

preted by this Court prohibits any public school student

from voluntarily praying at any time before, during, or

after the schoolday.” Id. at 313. Second, while Sherman

and the ACLU portray Section 5 as promoting religion, it

does no such thing. Rather, Section 5 sets forth in a bal-

anced way the rights of students to both pray and to

be free from government-mandated prayer. Specifically,

Section 5 addresses students’ rights under both the Free

Exercise Clause and the Establishment Clause and

their rights to “free exercise of religion” and “freedom

to not be subject to pressure from the State either to

engage in or to refrain from religious observation on

public school grounds . . . .” 105 ILCS 20/5. Third, Sec-

tion 5 in no way addresses or relates to the period of

silence governed by Section 1. Section 1 established a

period of silence and addressed the prohibition on the

use of the period of silence as a religious exercise, as

well as the students’ right to pray during the period of

silence, if they chose. In Section 5, the Illinois legislature

was addressing an entirely separate issue—the students’

right to pray at other times during the school day, as

well as their right not to be subject to state-imposed

prayer. There is nothing in the text or legislative history

of Section 5 which indicates that the Illinois legislature

intended to amend or otherwise affect the period of

silence when it passed Section 5. In fact, Section 5 was

added by the legislature in 2002—three decades after

the original passage of Section 1—and during the legisla-

No. 09-1455 21

tive debate of Section 5, there was no mention of the

period of silence law established by Section 1. In short,

Section 5 is unrelated and separate from the question of

the constitutionality of Section 1.

c. Wallace Concurrences

As explained above, this case is entirely different from

the situation facing the Court in Wallace. Moreover, the

facts in this case mirror the scenarios presented by

Justices O’Connor and Powell in separate concurrences

of moment of silence laws which would pass constitu-

tional muster. We find these concurrences persuasive.

In their concurrences, both Justice O’Connor and

Justice Powell first stressed the unique facts presented in

Wallace—and the utter lack of any secular purpose

behind Alabama’s moment of silence law. See Wallace,

472 U.S. at 67 (O’Connor, J., concurring) (stating that

she was “writ[ing] separately to identify the peculiar

features of the Alabama law that render it invalid . . .”); id.

at 66 (Powell, J., concurring) (stating that he “would

vote to uphold the Alabama statute if it also had a

clear secular purpose[,] [but that] [n]othing in the

record before us, however, identifies a clear secular

purpose, and the State also has failed to identify any

nonreligious reason for the statute’s enactment”). Both

justices then stressed that, contrary to the law at issue

in Wallace, moment of silence laws of many states

would satisfy the Establishment Clause. Wallace, 472

U.S. at 67 (O’Connor, J., concurring); id. at 62 (Powell, J.,

concurring). Justice O’Connor elaborated on this point,

22 No. 09-1455

explaining that “[a] moment of silence law that is

clearly drafted and implemented so as to permit prayer,

meditation, and reflection within the prescribed period,

without endorsing one alternative over the others,

should pass” constitutional muster. She added that

“[e]ven if a statute specifies that a student may choose

to pray silently during a quiet moment, the State has not

thereby encouraged prayer over other specified alterna-

tives.” Wallace, 472 U.S. at 73 (O’Connor, J., concurring).

Justice O’Connor further stressed the need for courts

to defer to the legislature’s stated purpose: Where “a

legislature expresses a plausible secular purpose for

a moment of silence statute in either the text or the leg-

islative history, or [where] the statute disclaims an

intent to encourage prayer over alternatives during a

moment of silence, . . . courts should generally defer to

that stated intent.” Id. at 74-75 (O’Connor, J., concurring).

This case fits the scenarios Justices Powell and

O’Connor foresaw.5 In this case, Section 1 identified a

5

Justice Brennan had also envisioned constitutional moment of

silence laws years earlier in his concurrence in School District

of Abington Township v. Schempp, 374 U.S. 203, 281 (1963). In

Schempp, the Supreme Court invalidated laws requiring

public schools to open each school day with a recitation of

either the Lord’s prayer or a reading from the Bible. In

his concurring opinion, Justice Brennan suggested that

“the observance of a moment of reverent silence at the

opening of class” may serve “solely secular purposes . . . with-

out jeopardizing either the religious liberties of any members

(continued...)

No. 09-1455 23

clearly secular purpose of establishing a period of

silence, and nothing in the record indicates that the

statute was motivated, even in part, by a religious

purpose (although a law need not be premised solely on

secular purposes). Moreover, Section 1 “disclaims an

intent to encourage prayer over alternatives during a

moment of silence,” id., by stating that the period of

silence “shall not be used as a religious exercise.” 105

ILCS 20/1. In short, Section 1 provides a fitting illustra-

tion of a moment of silence law which protects “every

student’s right to engage in voluntary prayer during

an appropriate moment of silence during the school

day.” Wallace, 472 U.S. at 59

d. Sister Circuits

Subsequent to Wallace, four other circuits have con-

sidered the constitutionality of moment of silence laws.

First, the Third Circuit in May, 780 F.2d 240, held

that New Jersey’s moment of silence law violated the

Establishment Clause. May involved a situation, like

Wallace, in which there was no secular purpose

justifying the moment of silence law. Specifically, in

May the Third Circuit held that the district court’s con-

clusion that the legislature lacked any secular pur-

5

(...continued)

of the community or the proper degree of separation between

the spheres of religion and government.” Id. (Brennan, J.,

concurring).

24 No. 09-1455

pose for adopting the moment of silence was not clearly

erroneous. Id. at 252-53. The May court, though, ex-

pressly recognized that a moment of silence law

enacted with a secular purpose would be constitutional.

Id. at 251-52.

The Eleventh Circuit next considered the constitutional-

ity of a moment of silence law in Bown, 112 F.3d 1464.

At issue in Bown was Georgia’s moment of silence

law which required every teacher to open the school

day with a “brief period of quiet reflection for not

more than 60 seconds.” Id. at 1466 (quoting O.C.G.A.

§ 20-2-1050(a)). The statute further stated that the

moment of quiet reflection “is not intended to be and

shall not be conducted as a religious service or exercise

but shall be considered as an opportunity for a moment

of silent reflection on the anticipated activities of

the day.” Bown, 112 F.3d at 1466 (quoting O.C.G.A.

§ 20-2-1050(b)). Prior to amendment, Georgia’s moment

of silence law provided for a discretionary moment

of silence for “silent prayer or meditation.” Id. at 1470 n.3.

The Eleventh Circuit applied the Lemon test and

first considered whether the law served a valid secular

purpose. The court concluded that both the preamble

and the statutory language provided a secular purpose

and added that “[b]y stating that the moment of quiet

reflection shall not be conducted as a religious service

or exercise, the statute indicates that Georgia is not ad-

vocating the moment of quiet reflection as a time for

religious activity.” Id. at 1469-70. The court also reviewed

the legislative history in detail and noted that some

No. 09-1455 25

Georgia legislators had expressed religious motives for

voting for the Act. Id. at 1472. The Eleventh Circuit,

however, concluded that “[t]he Act’s legislative history,

although somewhat conflicting, is not inconsistent with

the express statutory language articulating a clear

secular purpose and disclaiming a religious purpose. . . .

We are thus faced with legislative history that is

much different from that in [Wallace].” Id. at 1471.

The Fourth Circuit was the next circuit to consider

the constitutionality of a moment of silence law. In

Brown, 258 F.3d 265, the court upheld Virginia’s moment

of silence law, which required schools to observe a

moment of silence during which students could “med-

itate, pray, or engage in any other silent activity . . . .” Id.

at 270 (citing Va. Code Ann. § 22.1-203). The Fourth

Circuit concluded that the statute’s text supported two

secular purposes: to promote non-religious meditation

and to accommodate religion. Id. at 276. The Brown

court concluded that a “statute having dual legitimate

purposes—one clearly secular and one the accommoda-

tion of religion—cannot run afoul of the first Lemon

prong.” Id. at 277.

Finally, in Croft, 562 F.3d 735, the Fifth Circuit upheld

Texas’s 2003 moment of silence law that required

school districts to observe one minute of silence during

which “each student may, as the student chooses, reflect,

pray, meditate, or engage in any other silent activity that

is not likely to interfere with or distract another stu-

dent.” Id. at 738 (quoting Tex. Educ. Code § 25.082). The

2003 moment of silence law challenged in Croft had

26 No. 09-1455

amended Texas’s 1995 moment of silence law. Among

other things, the amendment made the moment of silence

mandatory and added the word “pray” to the list of

options, as well as adding the catch-all “or engage in

any other silent activity that is not likely to interfere

with or distract another student.” Id. at 738-39. In addi-

tion to the moment of silence law, Texas also had

another statutory provision addressing the broader

First Amendment rights of students, similar to Illinois’s

Section 5. Croft, 562 F.3d at 738 (quoting Tex. Educ. Code

§ 25.901).

The Fifth Circuit held that Texas’s moment of silence

law had a valid secular purpose based on both the statu-

tory language and the legislative history. Croft,

562 F.3d at 746-49. After reviewing the legislative

history in detail, the court concluded that on the whole,

the legislative history suggested there were several

reasons for amending Texas’s moment of silence law,

“including the return to prayer but also purely secular

ones such as a reflective moment . . . . ” Id. The Croft

court added that “[e]ven if some legislators had religious

motives in promoting this legislation, there are clear

secular legislative purposes present.” Id. The court

then stressed that the Supreme Court in Wallace noted

that “even though a statute is ‘motivated in part by

a religious purpose’ it may still satisfy the Lemon test.”

Id. (quoting Wallace, 472 U.S. at 56). Thus, the court

upheld Texas’s moment of silence law and distinguished

it from Wallace and May, where there were no secular

purposes at all. Croft, 562 F.3d at 748-49.

No. 09-1455 27

This case is more in line with Croft, Brown, and Bown

than May. In Croft, Brown, and Bown the text of the

moment of silence laws at issue demonstrated a clear

secular purpose, and the legislative history supported

the asserted secular purpose. Moreover, Section 1, like

the statute at issue in Bown, clearly stated that the

period of silence shall not be used as a religious exercise.

Bown, 112 F.3d at 1466 (quoting O.C.G.A. § 20-2-1050(b)).

Where “a legislature expresses a plausible secular pur-

pose for a moment of silence statute in either the text or

the legislative history, or [where] the statute disclaims

an intent to encourage prayer over alternatives during

a moment of silence, . . . courts should generally defer to

that stated intent.” Wallace, 472 U.S. at 74-75 (O’Connor,

J., concurring).

In fact, in many ways, this case presents an even more

compelling case than Croft, Brown, and Bown. In those

cases, there was evidence that the goal of at least some

legislators was the return of prayer to school. Croft,

562 F.3d at 738-39 (acknowledging that “there were

references by some legislators to returning prayer to

schools”); Brown, 258 F.3d at 271 (noting that the

Senate sponsor “when asked by a newspaper reporter

about his intent in sponsoring the bill . . . responded

that his intent was not to force prayer in schools, but he

added, ‘[t]his country was based on belief in God, and

maybe we need to look at that again’ ”); Bown, 112 F.3d at

1471 (noting that some legislators “indicated a desire

to reinstitute school prayer”). There is no similar legisla-

tive history to either the original passage of Section 1 or

its recent amendment; rather, the legislative history to

28 No. 09-1455

Section 1 indicates a solely secular purpose. Moreover,

Illinois’s amendment to Section 1 did not add “pray” to

the list of permissible options, as the legislature in Croft

had done; rather, “prayer” has been included in Section 1

since its original passage in 1969. And unlike this case,

the statutes at issue in both Croft and Brown did not

specify that the moment of silence “shall not be con-

ducted as a religious exercise.” Croft, 562 F.3d at 738;

Brown, 258 F.3d at 271 n.1. Because Section 1 does

contain this prohibition, the constitutionality of the

Illinois statute is even more compelling.

1) “Prayer” Option

In response, Sherman argues that Bown is distin-

guishable because, unlike Section 1, the Georgia legisla-

ture in Bown had removed the word “prayer” from the

state’s moment of silence law and the Eleventh Circuit

noted that this deletion “provides some support for

the idea that the Act’s purpose is secular.” Id. at 1470 n.3.

She further claims that Brown and Croft were wrongly

decided because the moment of silence statutes in those

cases mentioned prayer; in her view, a moment of

silence law will only pass constitutional muster if it

does not mention “prayer.”

It is true that when the Georgia legislature amended

the statute at issue to make the moment of silence man-

datory, it simultaneously removed the word “prayer”

No. 09-1455 29

from the statute.6 But the Eleventh Circuit in Bown

merely found that deletion supported the government’s

secular purpose—it did not hold that a moment of

silence law would fail the Lemon test if the law included

prayer as a permissible activity. And we find nothing

wrong with Illinois’s (or Virginia’s or Texas’s) legislature

informing teachers and students alike that students

may pray during the period of silence, given that the

statutory language does not indicate any preference for

prayer over silent reflection. In fact, listing prayer as a

permissible option makes eminent sense in this case,

given that Section 1 expressly states that the period of

silence “shall not be used as a religious exercise.” 105 ILCS

2011. As Koch explained, it was important to note that

prayer is a permissible option to negate any impres-

sion that teachers or students may have that students

were not allowed to pray (silently) during the period of

6

The dissent asserts that it is telling that the drafters of the

amendment to Section 1, while aware of Georgia’s statute,

chose not to follow the Georgia legislature’s approach. But the

Illinois drafters were just as likely aware of the moment of si-

lence laws in Florida, Kansas, Louisiana, Nevada, North

Dakota, Ohio, Pennsylvania, and West Virginia, which like Sec-

tion 1, provided as illustrations of permissible activities only

prayer and meditation (and/or contemplation or reflection.) See,

e.g., Fla. Stat. § 1003.45; Kans. Stat. § 72-5308a; La. Stat., Tit. 17,

Ch. 10, Part II, Subpart B, § 2115; Nev. Rev. Stat. § 388.075;

N.D. Cent. Code, § 15.1-19-03.1; Ohio Rev. Code, § 3313.601;

Penn. Stat., Tit. 24, Ch. 1, § 15-1516.1; W.Va. Const., Art. III,

§ 15a. We do not find it unusual that states differ in the lan-

guage they use to achieve the same secular purpose.

30 No. 09-1455

silence.7 And deleting prayer from Section 1—after it had

been part of that statute for nearly forty years—could

actually evidence a hostility to religion which is itself

unconstitutional. Brown, 258 F.3d at 281-82 (finding that

striking down a moment of silence statute solely

because “pray” was used “would manifest a hostility to

religion that is plainly inconsistent with the religious

liberties secured by the Constitution”). Therefore,

contrary to Sherman’s argument, we conclude that a

moment of silence law can constitutionally include a

“prayer” option in accord with the holdings in Brown

and Croft. See Wallace, 472 U.S. at 73 (O’Connor, J., concur-

ring) (“Even if a statute specifies that a student may

choose to pray silently during a quiet moment, the State

has not thereby encouraged prayer over other specified

alternatives.”).

2) Catch-all Clause

Alternatively, Sherman argues that even if Brown and

Croft were correctly decided, this case is distinguishable

because the statutes at issue in those cases included the

catch-all phrase “any other silent activity.” Brown, 258

F.3d at 270 (quoting Va. Code Ann. § 22.1-203); Croft,

7

The dissent has difficulty believing that a reasonable person

could interpret Section 1 as barring prayer during the moment

of silence given the existence of Section 5. (Dissent at 45). But

when Section 1 was first adopted in 1969, Section 5 did not

exist. And, as explained above, see supra at 19-21, Section 5

is unrelated to Section 1 and addresses an entirely separate

issue than the moment of silence established by Section 1.

No. 09-1455 31

562 F.3d at 738 (quoting Tex. Educ. Code. § 25.082(d)).

Sherman claims that in contrast, Section 1 limits pupils to

only two activities—prayer or reflection on the day’s

activities. Sherman and the ACLU, however, misread

Section 1. Nothing in the text of Section 1 limits students’

thoughts during the period of silence; the text mandates

only one thing—silence. While Section 1 does state that

“[t]his period . . . shall be an opportunity for silent

prayer or for silent reflection on the anticipated activities

of the day,” providing an opportunity is not the same

thing as mandating conduct.8 There is nothing in the

statute limiting the use of the period of silence, and

the legislative history makes clear that the legislators

intended the moment of silence to be available for

any silent thought. See Statement of Senator Lightford,

S. Proceedings, 95th Ill. Gen. Assem., March 21, 2007, at 86,

88 (the moment “should not be conducted as a religious

exercise,” but rather was “a neutral act which affords

8

The dissent concludes that Section 1 limits permissible

choices during the moment of silence to two options (prayer

or silent reflection on the anticipated activities of the day),

because “[t]he Act says what it says.” (Dissent at 50-51). Exactly.

Section 1 says that the moment of silence “shall” be “an oppor-

tunity” for “prayer or silent reflection on the anticipated

activities of the day.” The dissent focuses on the “shall” and

the “prayer or silent reflection” language, while ignoring the

plain and ordinary meaning of the word “opportunity.”

Opportunities may be accepted—but they may also be

rejected, leaving students to their own thoughts, albeit silent

ones. The dissent also states that the Act requires teachers

to explain the two options to students, (dissent at 51) but there

is no such mandate in the language of Section 1.

32 No. 09-1455

students the opportunity to reflect on whatever they

wish, whether religious or not”); Statements of Senators

Cronin and Sieben, id. at 87-88 (supporting mandatory

moment of silence to “instill a little meditative exercise”

at the beginning of the day, however students may

choose to use it). Moreover, it would be unreasonable to

interpret the statute as limiting students’ thoughts to

prayer or reflection as there is no way a teacher could

know what a student is pondering, and we will not in-

terpret a law in an absurd way. Zbaraz v. Madigan, 572

F.3d 370, 386-87 (7th Cir. 2009). Thus, while the text of

Section 1 differs from the statutes at issue in Virginia

and Texas, Section 1, like those statutes, permits any

silent activity. See also Bown, 112 F.3d at 1472-73 (noting

that Georgia’s moment of silence statute, which pro-

vided that it “shall be considered as an opportunity for

a moment of silent reflection on the anticipated activities

of the day,” allowed students to “use the moment of

quiet reflection as they wish, so long as they remain

silent”). Accordingly, we reject Sherman’s argument

that Section 1 is unconstitutional because it lacks a catch-

all clause.

2. Primary Effect

The second prong of Lemon considers whether the

government’s practice has the principal or primary effect

of advancing or inhibiting religion. Lemon, 403 U.S. at 613.

Under this prong, the question is: “irrespective of gov-

ernment’s actual purpose, whether the practice under

review in fact conveys a message of endorsement or

disapproval.” Freedom from Religion Foundation, Inc. v.

No. 09-1455 33

City of Marshfield, Wis., 203 F.3d 487, 493 (7th Cir. 2000)

(internal quotation omitted). The ACLU argues that

Section 1 has the principal or primary effect of advancing

religion by limiting students’ thoughts during the period

of silence to one of two topics (prayer or reflection on

the day’s activity), making prayer an attractive alterna-

tive. However, as explained above, see supra at 30-32,

Section 1 does not limit students’ thoughts during the

moment of silence and thus this argument fails. Of course,

should a school (or an individual teacher) implement

Section 1 in a way which encourages (or discourages)

prayer, that would be another case. But in this case

Sherman presents solely a facial challenge and facially

the statute only mandates a period of silence and con-

veys neither a message of endorsement nor disapproval.

Justice O’Connor in her concurrence in Wallace put it

best when she said: “It is difficult to discern a serious

threat to religious liberty from a room of silent, thoughtful

schoolchildren.” Wallace, 472 U.S. at 73 (O’Connor, J.,

concurring). In fact, the plain language of Section 1 shows

that Illinois acted with neutrality—avoiding both endorse-

ment (by stating that the period of silence shall not be

conducted as a religious exercise) and disapproval (by

stating that the period of silence shall be an opportunity

for prayer or silent reflection).

The decisions from our sister circuits support

this conclusion.9 In Bown, the Eleventh Circuit held that

9

The Supreme Court in Wallace did not address the second

and third prongs of the Lemon test, having concluded that

(continued...)

34 No. 09-1455

Georgia’s moment of silence law satisfied Lemon’s sec-

ond prong because the law merely required students to

remain silent and “explicitly says that the moment of

quiet reflection is not to be conducted as a religious

exercise.” Bown, 112 F.3d at 1473. And there was no

suggestion “that students should or should not pray

silently during the moment of quiet reflection.” Id. Simi-

larly, in Brown, the Fourth Circuit held that the second

prong of Lemon was clearly satisfied because the statute

was facially neutral “between religious and nonreligious

modes of introspection and other silent activity.” Brown,

258 F.3d at 277. Further, Brown rejected the plaintiff’s

argument that “despite the statute’s facial neutrality be-

tween silent religious expression and silent nonreligious

expression, the statute’s inevitable effect . . . will be to

promote prayer by creating the perception, especially

from the viewpoint of young, impressionable school

children, that the Commonwealth endorses prayer.”

Brown, 258 F.3d at 277-78. The court reasoned that “[i]n

the context of a facial challenge, however, this fear is

speculative at best . . . .” Brown, 258 F.3d at 278. The

Brown court concluded that “speculative fears as to the

potential effects of this statute [on school children]

cannot be used to strike down a statute that on its face

is neutral between religious and nonreligious activity.”

Id. Croft likewise held that the moment of silence law

did not “have the primary effect of advancing religion,

and so survives the second Lemon prong.” 562 F.3d at

9

(...continued)

the moment of silence law in that case lacked any secular

purpose.

No. 09-1455 35

749. Even May, which held New Jersey’s moment of

silence law unconstitutional, held that the statute did

not have the primary effect of advancing or inhibiting

religion. May, 780 F.2d at 247-50.

Alternatively, Sherman argues that Section 1 violates

the second prong of Lemon by favoring some religions

(those which engage in silent prayer) over other

religions (those which do not). Attorneys General amici

urge us to reject this argument because this reasoning

would render unconstitutional the moment of silence

laws of more than thirty states because, by their

nature, moment of silence laws will always preclude

vocal prayer.

We agree with Koch and the Attorneys General amici:

A moment of silence law does not violate the Establish-

ment Clause by favoring some religions. The government

may not favor “one religion over another without a legiti-

mate secular reason.” Nelson v. Miller, 570 F.3d 868, 881

(7th Cir. 2009). In this case, to the extent it could be con-

sidering “favoring” some religions by providing a

period of silence, there is a valid secular reason for not

allowing vocal prayer during that time—maintaining

silence. Therefore, Section 1 neither advances nor inhibits

any particular religion in violation of Lemon’s second

prong.

Our sister circuits have reached the same conclusion

on this issue as well. For instance, in Bown, the plaintiff

argued that “the Act, by mandating a moment of silence,

both advances and inhibits religion by favoring silent

prayer and discouraging other forms of prayer.” Bown,

36 No. 09-1455

112 F.3d at 1472. The Eleventh Circuit rejected this argu-

ment stressing “[t]he Act mandates a moment of quiet

reflection, not a moment of silent prayer.” Id. at 1472. The

court then concluded that “so long as the moment of

quiet reflection exercise is conducted in the manner

prescribed by the statute (i.e., that the moment of quiet

reflection is silent and is not conducted as a religious

exercise),” the statute does not violate the second prong

of Lemon. Bown, 112 F.3d at 1473. Similarly, the Fifth

Circuit in Croft rejected the argument that the moment

of silence law discriminates against religions that do not

practice silent prayer, explaining the statute “provides

for a minute of silence and allows any non-disruptive

silent activity.” Croft, 562 F.3d at 750. Requiring that

students “be silent does not discriminate among religious

sects.” Id. Thus, Section 1 does not have the primary

effect of advancing or inhibiting religion in violation

of Lemon’s second prong.

3. Entanglement With Religion

Under the third prong of the Lemon test, a “statute must

not foster an excessive government entanglement with

religion.” Lemon, 403 U.S. at 613. This prong is not at

issue here because Sherman did not argue, nor did the

district court find, that Section 1 fostered an excessive

entanglement with religion. See Books, 401 F.3d at 858 n.1.

(“Books has not argued that the display excessively

entangles government with religion, the third inquiry

under Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), so we

do not address that issue.”). Nor do we believe that

No. 09-1455 37

such an argument would succeed because Section 1

mandates only a period of silence and thus there is no

need for schools, teachers, or students to become en-

tangled in questions of religion. Every circuit to have

considered this issue has reached a similar conclusion.

See Croft, 562 F.3d at 750 (stating that “no court has

ever accepted—especially on a facial challenge—that a

moment of silence statute is excessive government entan-

glement with religion”); Brown, 258 F.3d at 278 (“And

the third prong—that the State not become excessively

entangled with religion—is undoubtedly satisfied.”);

Bown, 112 F.3d at 1474 (“We conclude that there is no

excessive entanglement in this case. All that the Act

requires is that the students and the teacher in charge

remain silent during the moment of quiet reflection.”);

May, 780 F.2d at 247 (holding that moment of silence

statute did not foster an excessive entanglement with

religion, but affirming district court’s conclusion that

statute was unconstitutional because the district court’s

factual finding that the law lacked a secular purpose

was not clearly erroneous). See also Wallace, 472 U.S. at 66

(Powell, J., concurring) (stating the “effect of a straight-

forward moment-of-silence statute [would not] . . .

foster an excessive government entanglement with reli-

gion”).

C. Vagueness

Finally, Sherman asserts that Section 1 is unconstitu-

tionally vague in violation of the Due Process Clause of

the Fourteenth Amendment because it does not specify

38 No. 09-1455

how the period of silence will be implemented

or penalties for violations of the statute. “The void for

vagueness doctrine rests on the basic principle of due

process that a law is unconstitutional if its prohibitions

are not clearly defined.” Karlin v. Foust, 188 F.3d 446, 458

(7th Cir. 1999) (internal quotation omitted). The Due

Process Clause, though, does not demand “perfect clarity

and precise guidance.” Ward v. Rock Against Racism,

491 U.S. 781, 794 (1989). Rather, a statute is only uncon-

stitutionally vague “if it fails to define the offense

with sufficient definiteness that ordinary people can

understand what conduct is prohibited and it fails

to establish standards to permit enforcement in a nonar-

bitrary, nondiscriminatory manner.” Fuller ex rel. Fuller

v. Decatur Public School Bd. of Educ. Sch. Dist. 61, 251

F.3d 662, 666 (7th Cir. 2001). However, “the degree of

vagueness that the Constitution tolerates—as well as the

relative importance of fair notice and fair enforce-

ment—depends in part on the nature of the enactment.”

Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 498 (1982). The Constitution tolerates

a lesser degree of vagueness in enactments “with

criminal rather than civil penalties because the conse-

quences of imprecision are more severe.” Karlin, 188

F.3d at 458. And “[g]iven the school’s need to be able

to impose disciplinary sanctions for a wide range of

unanticipated conduct disruptive of the educational

process, the school disciplinary rules need not be

as detailed as a criminal code.” Fuller, 251 F.3d at 667

(quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686

(1986)). Moreover, in a facial vagueness challenge the

No. 09-1455 39

question is whether the statute is vague in all its opera-

tions. Id.

While Section 1 does not define the length of the

period of silence, it is not unconstitutionally vague in all

its applications, as demonstrated by District 214’s pro-

posed implementation of the statute. At a hearing at

the preliminary injunction stage, District 214 indicated

that it intended to implement Section 1 by making a

school-wide morning announcement: “We will now have

a brief period of silence.” Then, after fifteen seconds

had passed, the announcer would begin the Pledge. A

student of ordinary intelligence would clearly under-

stand that he is to remain silent for the fifteen seconds

between the announcement and the beginning of the

Pledge. And given the school setting, the Constitution

does not mandate a cornucopia of additional details or

a statement of the punishment students will face

should they disregard their teacher’s direction. Sherman,

therefore, cannot complain of the vagueness of the law

in every situation and her Due Process challenge fails.

III.

The Illinois legislature had a secular purpose in

passing Section 1, namely mandating a period of silence

to calm school children before the start of their day.

There is no evidence that the secular purpose is a sham

and that Illinois’s true purpose was to promote prayer.

And there is nothing impermissible about clarifying

that students may pray during that time period. Section 1

also does not advance or inhibit religion (or specific

40 No. 09-1455

religions that practice momentary silent prayer), but

rather mandates only a period of silence. There is also

no state entanglement with religion. Therefore, Section 1

satisfies the Lemon test and Sherman’s First Amendment

challenge fails. Sherman’s vagueness challenge also

fails because Section 1 is not unconstitutionally vague

in all of its operations. For these and the foregoing

reasons, we R EVERSE and R EMAND to the district court

with instructions to enter judgment in favor of Koch.

W ILLIAMS, Circuit Judge, dissenting. I respectfully

dissent. I would affirm the district court’s ruling on the

basis that the Silent Reflection and Student Prayer

Act (the “Act”) violates the Establishment Clause of

the First Amendment. The Act makes what I believe to

be an unnecessary reference to prayer, signaling a pre-

dominantly religious purpose to the statute. And by enu-

merating prayer as one of only two specific permissible

activities, the Act conveys a message that Illinois

students should engage in prayer during the prescribed

period as opposed to a host of other silent options. I have

concluded that the purpose and effect of the Act is to

encourage prayer in public schools, which violates the

first two prongs of the Lemon test. See Lemon v. Kurtzman,

403 U.S. 602, 612-13 (1971).

No. 09-1455 41

The Act states that the mandatory period of silence:

[S]hall 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.

105 ILCS 20/1.

Why mention prayer at all? If the Act truly is meant

to achieve the purpose that its sponsors claim it is—

mandating a quiet, meditative time at the beginning

of each school day for students to settle down and shift

into learning mode—why is it necessary to reference

prayer? I recognize that the government’s stated secular

purpose for a law is entitled to “some deference,” Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000), but it

is also our duty to ensure that the proffered purpose

is “genuine, not a sham, and not merely secondary to a

religious objective.” McCreary County, Ky. v. American

Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005). And

we are “particularly vigilant in monitoring compliance

with the Establishment Clause in elementary and second-

ary schools,” because “[t]he State exerts great authority

and coercive power through mandatory attendance

requirements, and because of the students’ emulation of

teachers as role models and the children’s susceptibility

to peer pressure.” Edwards v. Aguillard, 482 U.S. 578, 583-

84 (1987).

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

42 No. 09-1455

into Illinois public schools, couched in the “hollow guise”

of a mandated period of silence. See Brown v. Gilmore,

258 F.3d 265, 282 (4th Cir. 2001) (King, J., dissenting).

While the secular purposes articulated by the state

might not be “shams,” it seems clear to me that to what-

ever extent they are genuine, they are secondary to reli-

gious ones. I share the concerns raised by a number of

legislators who expressed their doubts about the true

purpose behind amending the Act. As one House

member stated during floor debate, “[t]he only reason

I can see for requiring this silent moment is to en-

courage prayer in the public schools.” H.R. Proceedings,

95th Ill. Gen. Assem., May 31, 2007, at 64 (statement of

Rep. Currie). And as another representative stated, “[Y]es,

this doesn’t mandate prayer, but let’s face it that’s what

this is about . . . . [t]he only calls I received about this

Bill were people who were rabbis and priests and rever-

ends and people who are interested in having prayer in

the public schools.” H.R. Proceedings, 95th Ill. Gen.

Assem., Oct. 11, 2007, at 90 (statement of Rep. Lang).

I do not believe that the Illinois legislature truly adopted

this law with a secular purpose, and for that reason it

violates the first prong of the Lemon test. See Lemon, 403

U.S. at 612; see also Santa Fe, 530 U.S. at 315-16.

The majority states that there is no legislative history

indicating that it was the goal of any legislators to intro-

duce prayer into schools. (Op. at 15, 27). I disagree. There

are troubling statements in the record indicating

religious motivations on the part of some of the Act’s

supporters. The bill’s chief sponsor, Senator Kimberly

Lightford, said this to the press: “Here in the General

No. 09-1455 43

Assembly we open every day with a prayer and Pledge

of Allegiance. I don’t get a choice about that. I don’t

see why students should have a choice.” And when the

bill was first up for a vote, some legislators broke out

into song on the House floor, singing the following

words to the tune of Simon and Garfunkel’s “Sounds of

Silence”:

Hello school prayer, our old friend

It’s time to vote on you again

In our school house without warning

You seek a moment in the morning.

I agree with the majority that there are, of course,

statements of secular purpose in the legislative record.

But I part ways with my colleagues in that I simply

have trouble accepting those purposes as anything more

than pretextual. See, e.g., May v. Cooperman, 780 F.2d

240, 251 (3d Cir. 1985) (affirming district court’s conclu-

sion that legislators’ stated purpose for period of si-

lence, “to provide a transition from nonschool life to

school life,” was pretextual); see also Edwards, 482 U.S. at

594 (“The plain meaning of the statute’s words . . . can

control the determination of legislative purpose.”). The

Act’s purported secular goal—establishing a period of

silence to calm students and prepare them for the

day—could be achieved before it was made mandatory

in 2007. If Illinois’s public school teachers (who are in

the best position to assess the matter) felt students

needed a period of silence for a calming, transitional

period in the morning, they have had the authority

to impose one since 1969. Here, just as in Wallace,

“[a]ppellants have not identified any secular purpose

44 No. 09-1455

that was not fully served by [existing state law] before

the enactment of [the statute in question].” Wallace v.

Jaffree, 472 U.S. 38, 59 (1985); see also Edwards, 482 U.S.

at 587-88.

If legislators truly wanted to mandate a meditative,

calming period of silence for students, all they had to

do was model the Act after Georgia’s period-of-silence

statute, O.C.G.A. § 20-2-1050. The Georgia law is nearly

identical to the statute here, except that it does not refer

to prayer. Compare O.C.G.A. § 20-2-1050(b) (period “shall

be considered as an opportunity for a moment of silent

reflection on the anticipated activities of the day”) with

105 ILCS 20/1 (period “shall be an opportunity for silent

prayer or for silent reflection on the anticipated activities

of the day”) (emphasis added). The Eleventh Circuit

upheld the Georgia statute in Bown v. Gwinnett County

School Dist., 112 F.3d 1464, 1469-72 (11th Cir. 1997), finding

it had a valid secular purpose and that it did not convey

a message of endorsement of religion. It is fair to

assume that the drafters of the recent amendment to the

Act were aware of statutes like Georgia’s. The fact that

they chose not to follow the Georgia model is revealing.

My colleagues correctly point out that the Illinois

drafters were just as likely aware of a number of other

states’ period-of-silence laws that do mention prayer.

(Op. at 18 n.4). But the difference between every statute

the majority lists and the Georgia statute is that

Georgia’s has survived a post-Wallace First Amendment

challenge in a federal court of appeals. So if the legis-

lators really did intend to simply mandate a period of

silence for secular purposes, one might think that when

No. 09-1455 45

amending the Act they would have modeled it after a

statute they could be confident was appropriately doing

just that. See County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573, 618 n.67 (1989) (availability of secular

alternative is “obvious factor” in deciding whether gov-

ernment’s choice constitutes an endorsement of religion).

The majority believes that the mention of prayer in the

Act is warranted to “negate any impression” students may

have that prayer is not permitted, an impression that

might come from the clause that says the period “shall not

be conducted as a religious exercise.” (Op. at 29). That

argument might be more persuasive if Section 1 was

the only part of the Act. But immediately following that

clause, the Act goes on to say this:

Student prayer. In order that the right of every

student to the free exercise of religion is guaranteed

within the public schools and that each student has

the freedom to not be subject to pressure from

the State either to engage in or to refrain from

religious observation on public school grounds, stu-

dents in the public schools may voluntarily engage in

individually initiated, non-disruptive prayer that,

consistent with the Free Exercise and Establishment

Clauses of the United States and Illinois Constitutions,

is not sponsored, promoted, or endorsed in any man-

ner by the school or any school employee.

105 ILCS 20/5. I have difficulty with the idea that any rea-

sonable person, reading the above (in, remember, a

law called the “Silent Reflection and Student Prayer Act”),

could come away with even the slightest impression

46 No. 09-1455

that prayer might not be a permissible activity during

the period of silence. In light of Section 5, there is simply

no negative inference about prayer that needs to be

rebutted.

The majority claims that Section 5 is unrelated to

Section 1. (Op at 21). But in interpreting a statute, we look

not only to the specific statutory language at issue, but

to “the language and design of the statute as a whole.”

K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see

also Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 568 (1995)

(court’s duty is “to construe statutes, not isolated provi-

sions.”); Square D. Co. and Subsidiaries v. C.I.R., 438 F.3d

739, 745 (7th Cir. 2006). Section 5 is thus directly

relevant to understanding the purpose of the Act. Nor

does Section 5 address an “entirely separate issue” than

Section 1. (Op. at 20). Section 5 codifies (unnecessarily,

I might add) the First Amendment right of students to

engage in “individually initiated, non-disruptive

prayer.” Isn’t that what “silent prayer” under Section 1 is?

While I question the decision to reference prayer in the

Act here, I also recognize that inserting the term does not

automatically render every period-of-silence statute

unconstitutional. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 76

(1985) (O’Connor, J., concurring) (“A moment of silence

law that is clearly drafted and implemented so as to

permit prayer, meditation, and reflection within the

prescribed period, without endorsing one alternative

over the others, should pass this test.”). Post-Wallace,

two of our sister circuits have indeed upheld period-of-

silence statutes that directly reference prayer as an

No. 09-1455 47

option. See Croft v. Governor of Texas, 562 F.3d 735, 750-51

(5th Cir. 2009); Brown, 258 F.3d at 282. But the statutes

in those cases differ from the Act here in a critical way:

they provide “catch-all” alternatives to the prayer option.

The Act, in contrast, provides a forced, binary choice

between two substantively specific activities—(1) pray;

or (2) silently reflect on the anticipated activities of the

day—and in so doing, conveys the message that the

state of Illinois favors these two activities over a host of

other silent options. To the extent that a reference to

prayer is permissible in a period-of-silence statute, the

Act here still fails to pass muster. See Wallace, 472 U.S. at

73 (O’Connor, J., concurring) (“The face of [a] statute . . .

may clearly establish that it seeks to encourage or

promote voluntary prayer over other alternatives.”).

In Brown, the Fourth Circuit rejected an Establishment

Clause challenge to a Virginia period of silence statute

during which a student could “in the exercise of his or

her individual choice, meditate, pray, or engage in any

other silent activity.” Va. Code Ann. § 22.1-203 (emphasis

added). Assessing the language of the statute, the

Fourth Circuit noted that “[b]ecause the state imposes

no substantive requirement during the silence, it is not

religiously coercive.” Brown, 258 F.3d at 281. The court

noted with approval the fact that the word “pray” in the

Virginia statute was coupled with “an unlimited range

of mental activities that are authorized during the

minute of silence.” Id. at 281-82 (emphasis added). The

Act, in contrast, does impose a substantive require-

ment during the silence—there are only two specific

48 No. 09-1455

choices, pray or think about that day’s activities—instead

of coupling the prayer option with an unlimited range

of other permissible activities.

And in Croft, the Fifth Circuit evaluated a challenge to

a Texas period of silence law that also had a catch-all non-

prayer option. See 562 F.3d at 738-39. The Texas

statute provided for a period during which “each student

may, as the student chooses, reflect, pray, meditate,

or engage in any other silent activity.” Tex. Educ. Code

25.082(d) (emphasis added). The Fifth Circuit noted

with approval the fact that the Texas statute “clearly

state[s] that children may pursue ‘any other silent activity’

during the moment of silence. ‘Not praying’ is thus

covered by the catchall provision.” 562 F.3d at 749 (em-

phasis in original, citation omitted). The Croft court also

noted that the Texas statute is “facially neutral between

religious and non-religious activities.” Id. Again, this

is in stark contrast to the Act here. The Act here is not

facially neutral between religious and non-religious

activities. It specifically highlights prayer as one of two

permissible choices, and in so doing elevates it as a pre-

ferred activity over many non-religious options.

The majority disagrees with the premise that the Act

mandates a binary either/or choice, and instead con-

cludes that it permits “any silent activity.” (Op. at 32). But

that simply is not what the Act says. It is a primary rule

of statutory interpretation that we give words in a

statute their plain and ordinary meaning. See Ind. Forest

Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 857 (7th

Cir. 2003). The words in the Act are very clear: they say

No. 09-1455 49

that the period “shall”—a mandatory, not discretionary

term, see Robinson Farms Co. v. D’Acquisto, 962 F.2d 680,

684 (7th Cir. 1992)—be an opportunity for (1) silent

prayer or (2) silent reflection on the anticipated activities

of the day. I, like the district court, interpret this language

as limiting the permissible choices to those two specific

options.

Phrasing the two choices as “opportunities” does not

matter. If the Act said that the moment of silence

“shall be an opportunity for silently thinking about

Shakespeare or for silent reflection on the anticipated

activities of the day,” could anyone seriously argue that

the Act was not expressing a preference on the part of the

State of Illinois that its public school students engage

in these two activities over others? Calling the two

options “opportunities” does nothing to change the fact

that they are being expressly highlighted and endorsed.

See Brown, 258 F.3d at 290 (King, J., dissenting) (“I am

not comforted by the . . . statute’s allowance of ‘choice.’

Simply because the Commonwealth does not explicitly

require its public school students to pray does not mean

that they are not being subtly coerced to do so.”). Again,

why list prayer as an example at all? The answer is be-

cause, professed secular goals notwithstanding (at least

two of the Act’s supporters actually claimed that

the period of silence might lessen bullying and school

shootings), the true purpose of statutes such as this one

is to promote prayer. See id. at 284 n.3 (King, J., dissenting)

(“any objective observer” should recognize that “the

real purpose” of the Virginia statute at issue is endorse-

50 No. 09-1455

ment of prayer in public schools); see also Christine

Rienstra Kiracofe, “Pretending Not To Pray?: A Historical

Overview of Moment of Silence Legislation and Why

Illinois’ Statute Clearly Violated the Lemon Test,” 241 Ed.

Law. Rep. 1, 16 (2009) (“Although the state of Illinois

argued that [the Act] did, in fact, have a secular pur-

pose, the history of the bill and its sponsors seemed

to suggest otherwise.”).1

The majority quotes statements from some legislators

indicating that they intended the period to be a time

for “any silent thought.” (Op. at 31). But such state-

ments fly directly in the face of what the Act unambigu-

ously says, and it is the words of the statute that con-

trol. See DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1008

(7th Cir. 2010) (“Legislative history comes into play only

when necessary to decode an ambiguous enactment.”).

If the Illinois legislature wanted the range of permis-

sible options to be broader, it certainly possessed the

vocabulary to have expressed that. It is not our place to

rewrite the statute to say something it does not. The Act

1

It is also worth noting that while this case was pending

before the district court, Illinois lawmakers made efforts to

modify the Act through additional legislation. One bill, HB 4180,

would have changed the name of the Act to the “Student

Silent Reflection Act” and changed the period of silence

back from mandatory to optional. Another bill, HB 4186, would

have similarly removed the word “prayer” from the Act’s

title, and would have removed Section 1’s reference to

silent prayer. Both bills failed. See Kiracofe at 15.

No. 09-1455 51

says what it says. And even under the alternative

reading advanced by the majority—that the choices are

simply nonlimiting examples—isn’t the Act still at least

expressing a preference for those enumerated activities?

See Santa Fe, 530 U.S. at 316 (“[T]he simple enactment of

this policy, with the purpose and perception of school

endorsement of student prayer, was a constitutional

violation.”).

The majority further concludes that it would be “unrea-

sonable” to interpret the statute as limiting the choices

to prayer or reflection, because teachers cannot possibly

know what a student is thinking. (Op. at 32). I agree

that there are obvious problems with enforcement of the

Act, but questions about implementation do not change

what the statute says. Realistically enforceable or not

(and I agree with the district court’s conclusion that

compliance with the Act will require that teachers

explain the two options to students), the Act, on its

face, expresses a preference for prayer as one of

two specific activities that the state of Illinois wants

schoolchildren to engage in, over all others. This is

impermissible. See Santa Fe, 530 U.S. at 316.

There is a “line between creating a quiet moment

during which those so inclined may pray, and affirma-

tively endorsing the particular religious practice of

prayer. This line may be a fine one, but our precedents

and the principles of religious liberty require that

we draw it.” Wallace, 472 U.S. at 84 (O’Connor, J., concur-

ring). I believe that by referencing prayer unneces-

sarily, and by making it one of only two specific activ-

ities permitted during the period, the Act falls on the

52 No. 09-1455

wrong side of this line. I would affirm the district

court’s ruling that the Act as written violates the Estab-

lishment Clause.

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