# Amicus Curiae Brief — Board of School Commissioners v. Jaffree

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 924

## Text

Office Supreme Court, U.S.
— FILED

2 1 0
Nos. 83-812 and 83-929 WR 10 i904

STEVAS,

CLERK

Iu the Supreme Court ut the

OCTOBER TERM, 1983

GEORGE C. WALLACE, GOVERNOR OF THE STATE
OF ALABAMA, ET AL., APPELLANTS

U.

ISHMAEL JAFFREE, ET AL.

DouGLas T. SMITH, ET AL., APPELLANTS
V.

ISHMAEL JAFFREE, ET AL.

ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING APPELLANTS

REX E. LEE
Solicitor General

WM. BRADFORD REYNOLDS
Assistant Attorney General

PAUL M. BATOR
Deputy Solicitor General
MICHAEL W. MCCONNELL
Assistant to the Solicitor General
BRIAN K. LANDSBERG
MARGARET P. SPENCER
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217

BEST AVAILABLE COPY ,

QUESTION PRESENTED

Whether a state statute that authorizes public school
teachers to commence the school day by having their
classes observe a moment of silence, during which stu-
dents may engage in silent meditation or voluntary
prayer, violates the Establishment Clause of the First
Amendment.

(I)

TABLE OF CONTENTS

Argument:

A moment of silence for meditation or prayer in the
public schools does not violate the Establishment
Clause of the First Amendment

A. Like the released time program in Zorach v.
Clauson, Alabama’s moment of silence statute
is a permissible government accommodation of
religious exercise; the opportunity it provides
for religious exercise is purely voluntary, is
neutral among religions and between religion
and nonreligion, and occasions no interference
by the State in church affairs .

B. In applying the three-part test of Lemon v.
Kurtzman, the court of appeals failed to distin-
quish between government efforts to «sponsor
religion and government accommodations of
the voluntary exercise of religion

C. Other objections raised to the moment of si-
lence are not of constitutional dimension

D. This Court has rejected the absolutist ap-
proach to the Establishment Clause that would
require elimination of all religious elements
from our public life

Conclusion

TABLE OF AUTHORITIES
Cases:

Abington School District v. Schempp, 374 U.S.

12

18

25

— 5, 6-7, 19, 21, 23, 26

IV
Cases—Continued : Page
Bayer v. Kinzler, 383 F. Supp. 1164, aff’d, 515

F.2d 504 28
Beck v. McElrath, 548 F. Supp. 1161 7,24
Bellotti v. Baird, 443 U.S. 662 21
Brandon V. Board of Education, 635 F.2d 971, cert.

denied, 454 U.S. 1123 : 27
Cantwell v. Connecticut, 310 U.S. 296 27
Duffy v. Las Cruces Public Schools, 557 F. Supp.

1013 7, 25
Engel v. Vitale, 370 U.S. 421 5, 6, 9, 21
Estate of Thornton v. Caldor, Inc., cert. granted,

No. 83-1158 (Mar. 5, 1984) 2,12
Everson V. Board of Education, 300 U.S. 1 5
Gaines v. Anderson, 421 F. Supp. 3377 7, 15, 16, 17,

21, 25
Gambino v. Fairfax County School Board, 429 F.

Supp. 731 ; 28
Gillette v. United States, 401 U.S. 437 15, 19
Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 27
Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203 5, 13, 14
James v. Todd, 267 Ala. 495, 103 So. 2d 199 20
Kleppe v. New Mexico, 426 U.S. 52ꝶ9922 24

Lemon v. Kurtzman, 403 U.S. 602 2, 8, 17, 18, 21, 22
Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984) ......passim

Marsh v. Chambers, No. 82-23 (July 5, 1983). . 2, 13, 15,
17, 26
May v. Cooperman, 572 F. Supp. 15611 7, 16, 17, 24,
25, 27
McDaniel v. Paty, 435 U.S. 618 12, 27
Meek v. Pittenger, 421 U.S. 349 26
Mueller v. Allen, No. 82-195 (June 29, 1983) 20-21, 23
New York v. Ferber, 458 U.S. 747 24
O’Hair v. Andrus, 613 F.2d 931 26
Opinion of the Justices, 113 N.H. 297, 307 A.2d
558 7
Palmer v. Thompson, 403 U.S. 217 21

Roe v. Wade, 410 U.S. 113 21

Cases—Continued : Page
Roemer v. Board of Public Works, 426 U.S. 736.... 2
School District of Grand Rapids v. Ball, cert.

granted, No. 83-990 (Feb. 27, 1984) 2
Sherbert v. Verner, 374 U.S. 398 19
Sloan v. Lemon, 413 U.S. 825 2
St. Martin Evangelical Lutheran Church v. South

Dakota, 451 U.S. 772 2, 23
Thomas V. Review Board, 450 U.S. 707 15, 19
Tilton v. Richardson, 403 U.S. 672 2
Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 27
Trans World Airlines, Inc. v. Hardison, 432 U.S.

. 2, 19
United States v. Lee, 455 U.S. 252 2, 19, 23, 24
United States v. O’Brien, 391 U.S. 37 21
United States v. Raines, 362 U.S. 17 24
Widmar v. Vincent, 454 U.S. 26383838 16, 22, 26, 27
Wisconsin v. Yoder, 406 U.S. 205 15
Wolman v. Walter, 433 U.S. 229 21
Zorach v. Clauson, 343 U.S. 306 0 passim

Constitution, statutes and regulations:

U.S. Const.:

Amend. I (Religion Clauses) 1, 2, 5, 8, 9, 10, 12, 13,
22, 24, 29
Establishment Clause 5, 7, 8, 9, 18, 26, 27, 28
Free Exercise Clause — 15, 22
Amend. II 12
Amend. XIV 1,9

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. (&

r TREE 2
10 U.S.C. 7204 2
20 U.S.C. 241 iti 2
20 U.S.C. 926 2
22 U.S.C. 2701 2
25 U.S.C. 271-304b 2
Ala. Code (Supp. 1982):

. 3
8 16-1-20.1 __ Ss 3,6
§ 16-1-20.2 3

VI

Constitution, statutes and regulations—Continued: Page

Ariz. Rev. Stat. Ann. § 15-522 (Supp. 1983
Ark. Stat. Ann. § 80-1607.1 (1980)
Conn. Gen. Stat. Ann. § 10-16a (West 1981757
61 Del. Laws ch. 547 (1978)
Fla. Stat. Ann. § 233.062 (West Supp. 1983)
Ga. Code Ann. § 20-2-1050 (1982)
III. Rev. Stat. ch. 122, 1 771 (Supp. 1983) —............
Ind. Code Ann. § 20-10.1-7-11 (Burns Supp.
Kan. Stat. Ann. § 72. 5308a (1980)
La. Rev. Stat. Ann. § 17:2115 (West =a
Me. Rev. Stat. Ann. tit. 20-A, § 4805 (1982)
Md. Educ. Code Ann. 8 7-104 (1979
Mass. Ann. Laws ch. 71, §1A (Michie/Law. Co-

op. Supp. 1983) ; as
Mich. Comp. Laws § 380.1565 (1979) 88
N. J. Rev. Stat. § 18A: 36-4 (Supp. 1983) 6
N. M. Stat. Ann. § 22-5 4.1 (1981)
N.Y. Educ. Law § 3029-a (McKinney 1981) —
N.D. Cent. Code § 15-47-30.1 (1981)
Ohio Rev. Code Ann. § 3313.601 (Page 1980)
Ohio Rev. Code Ann. § 3317.06 (Supp. 1976)
Pa. Stat. Ann. tit. 24, § 15.1516.1 (Purdon Supp.

r
R. I. Gen. Laws § 16-12-3.1 (19817)
Tenn. Code Ann. § 49-1922 (Supp. 19827
Va. Code § 22.1-203 (1980) ___ r

e

288

do
9 8 988888

88

Miscellaneous:
1 Annals of Cong. (J. Gales ed. 1789):

p. 434 12
p. 750 12
C. Antieau, A. Downey & E. Roberts, —
From Federal Establishment: Formation and
Early History of the First Amendment Religion
Clauses (1964) 12
Choper, Religion in the Public Schools: A Pro-
posed Constitutional Standard, 47 Minn. L. Rev.
329 (1963) 7

Miscellaneous—Continued:

Comment, Accommodating Religion in the Public
Schools, 59 Neb. L. Rev. 425 (1980)
Drakeman, Prayer in the Schools: Is New Jersey’s
Moment of Silence Law Constitutional? 35 Rut-
gers L. Rev. 341 (1983)
P. Freund, The Legal Issue, in Religion in the
Public Schools 23 (1960)
Kauper, Prayer, Public Schools and the Supreme
Court, 61 Mich. L. Rev. 1031 (1963
Note, Daily Moments of Silence in Public Schools:
A Constitutional Analysis, 58 N.Y.U.L. Rev.
364 (1983)
Note, Religion and the Public Schools, 20 Vand.
r
Note, The Unconstitutionality of State Statutes
Authorizing Moments of Silence in the Public
Schools, 96 Harv. L. Rev. 1874 (1983) _..
Op. Att’y Gen. (Del.) 79-I 011 (1979)
L. Tribe, American Constitutional Law (1978)
C. Whittier, Silent Prayer and Meditation in
World Religions (Congressional Research Serv-
ice May 27, 1982) r

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-812

GEORGE C. WALLACE, GOVERNOR OF THE STATE
OF ALABAMA, ET AL., APPELLANTS

V.
ISHMAEL JAFFREE, Er AL.

No. 83-929

DouGLAS T. SMITH, ET AL., APPELLANTS
V.

ISHMAEL JAF FREE, ET AL.

ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES

The State of Alabama, like some 23 other states, has
authorized a moment of silence in the public schools to
enable students to engage in silent meditation and volun-
tary prayer. The court below held this practice unconsti-
tutional under the First Amendment to the United States
Constitution, as applied to the states through the Four-
teenth Amendment. The United States has a substantial
interest in this matter, which raises the question whether
the Constitution prohibits neutral and noncoercive means

(1)

2

of accommodating private religious practices in the public
schools and, by extension, in other public contexts. Among
federal government activities potentially implicated by a
prohibition on governmental accommodation of religion
are the grant of tax preferences for religious institutions,
the allowance of religious holidays to federal employees,
and the enforcement of the religious accommodation re-
quirements of Title VII of the Civil Rights Act of 1964,
42 U.S.C. (& Supp. V) 2000e et seg.

In addition, the United States is authorized to operate
schools for military and foreign service dependents under
certain circumstances (10 U.S.C. 7204 (Navy) ; 20 U.S.C.
241 (federal property); 20 U.S.C. 926 (Defense Depart-
ment); 22 U.S.C. 2701 (foreign service) ) and schools for
Indians (25 U.S.C. 271-304b). The resolution of this case
will bear on Congress’s authority to allow periods for
silent prayer or meditation in such schools.

The United States has participated as a party or as
amicus curiae in numerous cases arising under the Re-
ligion Clauses of the First Amendment. See, e.g., briefs
filed by the United States as amicus curiae in Estate of
Thornton v. Caldor, Inc., cert. granted, No. 83-1158 (Mar.
5, 1984); School District of Grand Rapids v. Ball, cert.
granted, No. 83-990 (Feb. 27, 1984) ; Lynch v. Donnelly,
No. 82-1256 (Mar. 5, 1984); Marsh v. Chambers, No.
82-23 (July 5, 1983); St. Martin Evangelical Lutheran
Church v. South Dakota, 451 U.S. 772 (1981); Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977);
Sloan v. Lemon, 413 U.S. 825 (1973); Roemer v. Board
of Public Works, 426 U.S. 736 (1976); and Lemon v.
Kurtzman, 403 U.S. 602 (1971), and briefs filed as a
party in United States v. Lee, 455 U.S. 252 (1982), and
Tilton v. Richardson, 403 U.S. 672 (1971).

STATEMENT

1. Appellee Ishmael Jaffree, an agnostic, filed this sui
in the United States District Court for the Southern Dis-
trict of Alabama on behalf of three of his

co

attend Mobile County, Alabama public schools. In his
original complaint, he challenged the practices of certain
teachers who, at their own initiative, conducted prayers
with students during school hours. Subsequently, appellee
amended his complaint to join as defendants the Governor
of Alabama, the state Attorney General, and several state
education officials, and to challenge the constitutionality
of two state statutes: Ala. Code § 16-1-20.1 (Supp. 1982),
which authorizes teachers to institute a brief period of
silence (“not to exceed one minute”) for meditation or
voluntary prayer at the commencement of the first class
period,’ and a separate, independent state statute, passed
after initiation of the lawsuit, that would have permitted
recitation of a state-composed prayer at the beginning of
any homeroom or class period.? A group of parents in-

Ala. Code § 16-1-20.1 (Supp. 1982) provides that:

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.

This provision became effective on April 29, 1981. A separate
provision, Ala. Code § 16-1-20, not involved in this case, also pro-
vides for a moment of silence in Alabama public schools. That
statute differs from the provision at issue here in three respects:
it applies only to grades one through six, it requires (rather than
permits) teachers to conduct the moment of silence, and it refers to
“meditation” alone. The judgment of the court of appeals did not
directly pertain to Ala. Code § 16-1-20, and the latter is not at
issue here.

The statute, Ala. Code § 16-1-20.2, provided that:

From henceforth, any teacher or professor in any public
educational institution within the state of Alabama, recog-
nizing that the Lord God is one, at the beginning of any
homeroom or any class, may pray, may lead willing students
in prayer, or may lead the willing students in the following
prayer to God:

Almighty God, You alone are our God. We acknowledge
You as the Creator and Supreme Judge of the world. May

1

tervened to support both spoken prayer and the moment
of silence. Spoken prayer, rather than the moment of
silence, was the main focus of litigation in the lower
courts.

The district court issued a preliminary injunction bar-
ring implementation of both statutes (J.S. App. 64d-75d).
For trial on the merits, the court severed appellee’s claim
challenging teacher-initiated prayer from his claim chal-
lenging the state statutes. Thereafter the court concluded
that “the establishment clause of the first amendment to
the United States Constitution does not bar the states
from establishing a religion’ (J.S. App. 59d). It there-
fore dismissed the challenge both to teacher-initiated
prayer (Jaffree v. Board of School Commissioners of Mo-
bile County, 554 F. Supp. 1104 (J.S. App. 1d-55d)) and
to the Alabama statutes (Jaffree v. James, 544 F. Supp.
727 (J.S. App. 56d-61d)) for failure to state a claim
upon which relief can be granted (J.S. App. 53d, 59d).*

2. Appellee Jaffree appealed to the Eleventh Circuit,
and Justice Powell, as Circuit Justice, issued an order
granting a stay of the district court’s order and reinstat-
ing the injunction pending final disposition of the appeal
(J.S. App. 2e-5e).

The court of appeals reversed the dismissal of each of
appellee’s claims and remanded the case for entry of an
order enjoining implementation of the statutes and
teacher-initiated prayers. Jaffree v. Wallace, 705 F.2d
1526 (J.S. App. la-20a). The court concluded (J.S. App.
7a-12a) that the district court’s interpretation of the

Your justice, Your truth, and Your peace abound this day in
the hearts of our countrymen, in the counsels of our govern-
ment, in the sanctity of our homes and in the classrooms of our
schools in the name of our Lord. Amen.

This provision was enacted on July 8, 1982, some 14 months after
the moment of silence statute became effective.

The district court accordingly dissolved the preliminary in-
junction (J.S. App. 59d).

5

First Amendment is contrary to cases decided by this
Court, including Everson v. Board of Education, 330
U.S. 1 (1947); Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203 (1948); Abington School Dis-
trict v. Schempp, 374 U.S. 203 (1963); and Engel v.
Vitale, 370 U.S. 421, 429-430 (1962). In one paragraph
of its 20 page opinion (J.S. App. 18a), the court of ap-
peals held the moment of silence statute unconstitutional
because its objective was “the advancement of religion.”
The court stated: “We do not imply that simple medita-
tion or silence is barred from the public schools; we hold
that the state cannot participate in the advancement of
religious activities through any guise, including teacher-
led meditation. It is not the activity itself that concerns
us; it is the purpose of the activity.” J.S. App. 18a.“
The court of appeals denied a petition for rehearing
and rehearing en banc (J.S. App. 1b-2b). Four judges
dissented from the denial of rehearing en banc insofar
as the decision invalidated Alabama’s moment of si-
lence statute (id. at 2b-4b). The dissenting judges ob-
served first that the significance of the decision “tran-
scends one state and one statute,” because many states
have enacted similar laws (id. at 2b-3b). Second, the
dissenting judges noted that the constitutionality of ob-
serving moments of silence in the public schools had not
been resolved by this Court, and that other courts had
reached conflicting decisions (id. at 3b). Finally, the
dissenting judges expressed “some doubt as to the correct-
ness of the panel opinion” (ibid.), citing extensive schol-

* Because the district court viewed the Establishment Clause as
not applicable to the states (J.S. App. 59d), it did not make factual
findings with respect to the purposes or consequences of the statutes
in question, nor did it separately analyze the statutes. The court of
appeals rejected the district court’s interpretation of the reach of
the Establishment Clause (J.S. App. 10a-lla), but did not remand
for a separate inquiry on the administration of the moment of
silence statute. Instead, it held the moment of silence statute
invalid on its face. Id. at 18a.

arly and judicial authority in support of the constitution-
ality of moment of silence provisions (id. at 3b-4b). The
judges concluded that, however the issue might be re-
solved by the en bane court, “it is important and suffi-
ciently unsettled to command its attention” (id. at 4b).

8. The State and the intervenors appealed to this Court
with respect to both state statutes, and the School Board
filed a petition for a writ of certiorari with respect to the
statutes and the teacher-initiated prayers. This Court
summarily affirmed the judgment of the court of appeals
invalidating the state-composed prayer statute, denied the
petition for certiorari, and noted probable jurisdiction to
review the decision striking down the moment of silence
statute.

SUMMARY OF ARGUMENT

In 1962, this Court held that a state may not direct or
permit public school teachers to lead their students in
recitations of a prayer. Eng . Vitale, 370 U.S. 421.
Since that time, Alabama and some 23 other states have
enacted statutes authorizing or requiring daily moments
of silence in the public schools.“ At least until recently,
these provisions have generally been thought to be consti-
tutional. Abington School District v. Schempp, 374 U.S.

In addition to Ala. Code § 16-1-20.1 (Supp. 1982), see Ariz.
Rev. Stat. Ann. § 15-522 (Supp. 1983); Ark. Stat. Ann. § 80-1607.1
(1980) ; Conn. Gen. Stat. Ann. § 10-16 (West 1981); 61 Del. Laws
ch. 547 (1978) (as interpreted in Op. Att'y Gen. 79-I 011 (1979));
Fla. Stat. Ann. § 233.062 (West Supp. 1983); Ga. Code Ann.
§ 20-2-1050 (1982); Ill. Rev. Stat. ch. 122, {771 (Supp. 1983) ;
Ind. Code Ann. § 20-10.1-7-11 (Burns Supp. 1983) ; Kan. Stat. Ann.
§ 72.5308a (1980); La. Rev. Stat. Ann. §17:2115 (West 1982);
Me. Rev. Stat. Ann. tit. 20-A, § 4805 (1982); Md. Educ. Code Ann.
§ 7-104 (1978); Mass. Ann. Laws ch. 71, § 1A (Michie/Law. Co-op.
Supp. 1983) ; Mich. Comp. Laws § 380.1565 (1979); N.J. Rev. Stat.
§ 18A:36-4 (Supp. 1983); N.M. Stat. Ann. § 22-5-4.1 (1981); N.Y.
Educ. Law § 3029-a (McKinney 1981) ; N.D. Cent. Code § 15-47-30.1
(1981); Ohio Rev. Code Ann. § 3313.601 (Page 1980); Pa. Stat.
Ann. tit. 24, § 15.1516.1 (Purdon Supp. 1983); R.I. Gen. Laws
§ 16-12-8.1 (1981); Tenn. Code Ann. § 49-1922 (Supp. 1982); Va.
Code § 22.1-2038 (1980).

7

203, 281 (1963) (Brennan, J., concurring) (footnote
omitted) (“the observance of a moment of reverent
silence at the opening of class” might be considered a
“nonreligious means” of serving “solely secular purposes
without jeopardizing either the religious liberties
of any members of the community or the proper degree of
separation between the spheres of religion and govern-
ment”) ; Gaines v. Anderson, 421 F. Supp. 337 (D. Mass.
1976) (three judge court); Opinion of the Justices, 113
N. H. 297, 301, 307 A.2d 558, 560 (1973).* In the last
two years, however, three district courts, in addition to
the court of appeals below, have held that such provisions
violate the Establishment Clause. May v. Cooperman, 572
F. Supp. 1561 (D. N.J. 1983) ; Duffy v. Las Cruces Public
Schools, 557 F. Supp. 1013 (D. N.M. 1983); Beck v.
McElrath, 548 F. Supp. 1161 (M.D. Tenn. 1982).
We believe that provision for a moment of silence in
the public schools is not an establishment of religion, but
rather a legitimate way for the government to provide
an opportunity for both religious and nonreligious intro-
spection in a setting where, experience has shown, many
desire it. It is an instrument of toleration and pluralism,
not of coercion or indoctrination.

»The weight of scholarly authority also favors the moment of
silence. See, ¢.g., L. Tribe, American Constitutional Law § 14-6,
at 829 (1978); P. Freund, The Legal Issue, in Religion in the
Public Schools 23 (1965); Choper, Religion in the Public Schools:
A Proposed Constitutional Standard, 47 Minn. IL. Rev. 329, 371
(1963); Kauper, Prayer, Public Schools and the Supreme Court,
61 Mich. L. Rev. 1081, 1041 (1963); Comment, Accommodating
Religion in the Public Schools, 59 Neb. L. Rev. 425, 450-454 (1980) ;
Note, Religion and the Public Schools, 20 Vand. L. Rev. 1078, 1092-
1093 (1967). But see, ¢.g., Drakeman, Prayer in the Schools: Is
New Jersey's Moment of Silence Law Constitutional? 35 Rutgers
L. Rev. 341 (1983); Note, The Unconstitutionality of State Stat-
utes Authorizing Moments of Silence in the Public Schools, 96
Harv. L. Rev. 1874 (1983) [hereinafter cited as Harvard Note];
Note, Daily Moments of Silence in Public Schools: A Constitu-
tional Analysis, 58 N.Y.U.L. Rev. 364 (1983) [hereinafter cited as
NYU Note].

A. The moment of silence is constitutional for the same
reasons the released time program in Zorach v. Clauson,
343 U.S. 306 (1952), was constitutional. Whether the
moment of silence is used for prayer or for other con-
templative activity is purely a matter of voluntary choice.
The moment of silence is perfectly neutral with respect
to religious practice: it neither favors one religion over
another nor conveys endorsement of religion. It occasions
no interference by the government in the affairs of re-
ligious institutions. Indeed, from the perspective of the
Establishment Clause, the moment of silence is less
problematic than the Zorach released time program.

B. The cursory analysis employed by the court below
is deficient in that it does not distinguish between gov-
ernment efforts to sponsor (or establish“ a religion and
government efforts to accommodate the voluntary practice
of religion. The court’s wooden application of the three-
part test of Lemon v. Kurtzman, 403 U.S. 602 (1971),
reflects this deficiency: under it all government actions
that have the purpose or effect of facilitating or accom-
modating religious observance would be invalid. Numer-
ous holdings of this Court make it clear that the Re-
ligion Clauses do not invalidate governmental acts whose
purpose and effect is to facilitate opportunities for volun-
tary religious practice.

C. Certain other objections have been raised to moment
of silence provisions. They have been thought unneces-
sary (since students are free to engage in silent prayer
during other school activities); they have been thought
susceptible to unconstitutional administration; they have
been thought coercive in requiring students who do not
wish to pray to remain silent. These are not, in our view,
objections of a constitutional dimension; they certainly
do not justify facial invalidation of the statutes of Ala-
bama and some 23 other states.

D. Perhaps most fundamentally, the moment of silence
has been opposed because it is inconsistent with a view of
the Establishment Clause which would require the ab-
solute elimination of religious elements from our public

9

schools and public life. That view, however, has been con-
sistently rejected by this Court. The purpose of the Es-
tablishment Clause is not to work an artificial seculariza-
tion upon our public life and institutions, but to ensure
that the force of government is not brought to bear to
induce or to restrain voluntary religious exercise (or
nonexercise). The moment of silence, we submit, is fully
consistent with that purpose.

ARGUMENT

A MOMENT OF SILENCE FOR MEDITATION OR
PRAYER IN THE PUBLIC SCHOOLS DOES NOT
VIOLATE THE ESTABLISHMENT CLAUSE OF THE
FIRST AMENDMENT

In 1962, this Court held that the First Amendment, as
applied to the states through the Fourteenth Amendment,
prohibits the states from directing or permitting public
school teachers to lead their classes in the recitation of a
prayer. Engel v. Vitale, 370 U.S. 421. If anything has
become clear during the more than 20 years of public
controversy that has ensued, it is that opinions on the
question of the proper role of religious observance in
the public schools vary dramatically and are passion-
ately held. Many persons feel, with intense sincerity,
that the everyday world of work or study ought to
include at least a moment during which individuals have
an opportunity to acknowledge a transcendent element in
their lives. This need is felt most acutely by persons of
religious faith who believe that prayer should be an
integral part of all of life’s activities, including school,
and that the state in its role as enforcer of compulsory
education iaws and provider of universal public educa-
tion should be ready to accommodate this belief. The
practice of opening the school day with spoken prayer and
scriptural reading was responsive to these feelings; when
this practice was declared unconstitutional, it was per-
ceived by many as a rebuff to fundamental aspirations.

10

On the other hand, in ruling these practices invalid
the Court was responding to other concerns that are also
deep and intense. Many persons feel that the recitation
of prayers and scriptures in school is an invasion of their
right to control their, or their children’s, religious life.
They believe that there is no way to ensure the truly
voluntary character of prayer in this context—that im-
pressionable young people will feel pressure to engage in
religious observances in which they do not believe. There
is also the concern that decisions about what prayer to
recite, what scripture to read, will create the appearance
of an official endorsement of one faith, to the disadvantage
of adherents of minority faiths or of no religion at all.

Evidently one way to meet these latter concerns is to
eliminate all opportunity for devotional practices at school.
Students can pray, if they want to pray, at home, or if
they can find a suitable occasion during snatches of inac-
tivity in the school day. We do not doubt that this ap-
proach is constitutional; it is unlikely that in most con-
texts a strong Free Exercise claim could be made that
time for personal prayer must be set aside during the
school day.

The question before the Court, however, is whether this
approach—which flatly rejects the intensely felt desire of
some to be allowed an opportunity for a brief formal mo-
ment of devotion within the school day—is the only
constitutional approach. The legislatures of twenty-four
states have concluded that the practice at issue here, a
moment of silence for the purpose of silent meditation,
provides an alternative that meets the concerns about
genuine voluntariness and evenhandedness which animated
the school prayer decisions, but that also accommodates
the desire of so-minded students to pray. Our submission
is that this is a valid solution—one that advances the
purposes of the Religion Clauses.

The Alabama statute provides a brief period of quiet in
which students can direct their attention away from the

11

immediate press of classroom activity without interrup-
tion, distraction, or fear of embarrassment. It creates a
moment of privacy, an opportunity for either religious or
nonreligious introspection (in the language of the statute,
either prayer“ or meditation“) in a setting where, as
experience has shown, many desire it. It is a means for
accommodating the religious and meditative needs of stu-
dents without in any way diminishing the school’s own
neutrality or secular atmosphere. Indeed, for persons who
believe that prayer must be an integral part of all of life’s
activities (including school), it may make the difference
between being able, in good conscience, to attend a secular
public school and being forced to seek an explicitly re-
ligious alternative education.

Silence operates in a perfectly tolerant, neutral, and
libertarian manner. What is done within it remains a
mystery. Each boy or girl may meditate or pray; but no
one can know who prays or how he does it; and each is
equally free to think about yesterday’s football game or
tonight’s date and no one will be the wiser. Silence thus
accommodates those who wish to engage in the “free ex-
ereise“ of prayer even during school hours, but does so
without coercing or disturbing any other person. The
moment of silence is an instrument of toleration and plu-
ralism, not of coercion or indoctrination.

A moment of silence is, after all, just that: a brief
period of quiet, during which students are asked to do but
one thing—to be still, alone with their thoughts. By re-
quiring a moment of silence, then, the teacher does noth-
ing more coercive than to reaffirm this simple truth:
silent reflection—no less than listening, reading, and talk-
ing—is important to education and learning. Intro-
spection, whether religious or nonreligious, is part of the
life of the mind. That is why Wordsworth called silence
a “daily teacher” and Keats thought truth a “foster-
child of silence.”

12

A. Like the Released Time Program in Zorach v. Clauson,
Alabama’s Moment of Silence Statute is a Permis-
sible Government Accommodation of Religious Exer-
cise; the Opportunity It Provides for Religious Exer-
cise is Purely Voluntary, is Neutral Among Religions
and Between Religion and Nonreligion, and Occasions
No Interference by the State In Church Affairs

The fundamental impulse that led to the adoption of the
Religious Clauses of the First Amendment was the desire
to give free scope to religious practice without the inter-
ference that governmental prohibitions or establishments
would necessarily entail. The end is toleration and ac-
commodation, not the removal of all traces of religion
from our public life. See generally Lynch v. Donnelly,
No. 82-1256 (Mar. 5, 1984), slip op. 4-9. That is why
this Court has repeatedly recognized that governments
may expand opportunities for voluntary religious exer-
cise, and may indeed, sometimes must—ease burdens
caused by facially neutral public or private practices that
make it difficult for individuals to observe their faith.’
See McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Bren-
nan, J., concurring) ; Br. for the United States as Amicus
Curiae in Estate of Thornton v. Caldor, Inc., supra, at

7 The Framers of the Bill of Rights were well aware of the con-
cept of nonmandatory religious accommodation by the govern-
ment. For example, during debate on adoption of the Second
Amendment, the First Congress considered language that would
have provided that “no person religiously scrupulous of bearing
arms shall be compelled to render military service in person.” 1
Annals of Cong. 434 (J. Gales ed. 1789). The language was de-
leted, in large part because, as Egbert Benson of New York put
it, “{n]o man can claim this indulgence of right. It * * * ought to be
left to the discretion of the Government.” Id. at 750. This incident
strongly supports the view that the Congress and the legislatures
of the various states have discretion to undertake action to facili-
tate religious scruple. See also C. Antieau, A. Downey & E. Roberts,
Freedom From Federal Establishment: Formation and Early
History of the First Amendment Religion Clauses 62-91 (1964)
(describing numerous early examples of governmental cooperation
with religion).

13

15-17.“ The moment of silence is an example of a per-
missible accommodation of religion. Through it the State
—without itself sponsoring or endorsing religion—pro-
vides an opportunity for purely voluntary private devotion
in the context of a highly structured, compulsory state
institution where such opportunities would otherwise be
nonexistent or extremely limited.’

The constitutionality of the moment of silence is most
powerfully supported by this Court’s holding in Zorach v.
Clauson, 343 U.S. 306 (1952). There, the school au-
thorities faced the question of how best to deal with the
“religious needs” (id. at 315) of some students for re-
ligicus instruction or devotion. A prior decision, Illinois
ex rel. McCollum v. Board of Education, 333 U.S. 203
(1948), had held that public schools could not invite
religious instructors into the school for purposes of re-
ligious instruction. Nonetheless, apprehending the need
to “respect[] the religious nature of our people and ac-
commodate[] the public service to their spiritual needs“
(343 U.S. at 314), the school district in Zorach decided
to permit students, with the permission of their parents,

A copy of that brief has been provided to the parties in this
case.

It is particularly appropriate for the state to provide an oppor-
tunity for voluntary religious exercise in circumstances such as
military service, prisons, or compulsory schooling, where the state
has itself created a regimented environment that would—in the
absence of governmental accommodations—tend to inhibit religious
exercise. See Marsh v. Chambers, No. 82-23 (July 2, 1983) slip op.
17-18 (Brennan, J., dissenting) .

10 The continued authority and vitality of Zorach is not in doubt.
Although decided by a closely divided Court (three Justices dis-
senting), Zorach has become one of the leading cases on the prin-
ciple that the Religion Clauses permit certain accommodations for
religious practice. It has been cited approvingly by both majority
and dissenters in recent Establishment Clause cases. See, e.y.,
Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 4, 5, 8, 12
(majority opinion); slip op. 21-22 (Brennan, J., dissenting) ;
Marsh v. Chambers, No. 82-83 (July 5, 1983), slip op. 9 (majority
opinion) ; slip op. 1 n.1, 17-18 n.29 (Brennan, J., dissenting).

14

to leave the school grounds and go to religious centers for
religious instruction.

This Court held that the released time program in
Zorach was constitutional. It observed that “[w]hen the
state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public
events to sectarian needs, it follows the best of our tradi-
tions” (343 U.S. at 313-314). The Court reasoned (id.
at 313) that there are many circumstances in which pub-
lic school students need special provision to enable them
to exercise their religion. Examples given were Roman
Catholic mass during school hours on a Holy Day of Ob-
ligation, Jewish observances on Yom Kippur, and Prot-
estant attendance at a family baptismal ceremeny. The
need for regular religious instruction and devotion, the
Court found, is not different. Whether religious accom-
modation is made “occasionally for a few students, regu-
larly for one, or pursuant to a systematized program
designed to further the religious needs of all the students
does not alter the character of the act.” Ibid.

The moment of silence is an equally appropriate re-
sponse to the religious needs of many students.“ By pro-
viding a brief opportunity for contemplative activity at
the beginning of the school day, the government does not
itself engage in or sponsor a religious activity; silence is
spiritually and ideologically neutral. All the government

11 It might be argued that the moment of silence is more like
the on-premises released time program invalidated in McCollum
than the off-premises program approved in Zorach, simply because
the opportunity for religious practice here takes places physically
on the public school premises. However, the constitutional flaw in
the McCollum program was that “the classrooms were used for
religious instruction and the force of the public school was used to
promote that instruction.” Zorach, 343 U.S. at 315. Since the
moment of silence is not in and of itself a religious activity (but
only a moment of privacy in which a student may, if he chooses,
engage in a religious activity), it does not create the concerns
generated by the McCollum program. The classroom is not used
for religious instruction or overt religious observance; thus the
force of the school is in no way used to promote prayer.

15

does is to create an opportunity that the students may
use, if they wish, for prayer—or for meditation or other
quiet contemplation if they prefer. Nothing is asked of
a student who wishes not to pray or meditate but that
he remain silent, respecting the rights of his fellow stu-
dents whose views may be different. No one can even
know what the other chooses to do.

As was the case in Zorach, then, the moment of silence
puts religion on a wholly voluntary basis; it simply
expands the freedom available to individuals to decide
for themselves whether and how to engage in religious
practice, without inducing or coercing that choice. The
student “is left to his own desires as to * * * his religious
devotions, if any.” Zorach, 343 U.S. at 311.

Further, the moment of silence is perfectly neutral
with respect to religious practice: * it neither favors one
religion over another, nor conveys “endorsement or dis-
approval of religion.” Lynch v. Donnelly, slip op. 1
(O'Connor, J., concurring) ; see also Gaines v. Anderson,
421 F. Supp at 343-344. It thus more than satisfies
Zorach’s requirement that religious accommodations be
“neutral when it comes to competition between sects”
(343 U.S. at 314). All major religious faiths recognize

12 Of course, a perfect neutrality is not required of efforts to
accommodate voluntary religious exercise. In keeping with the
special status of religion under the Free Exercise Clause, the gov-
ernment may seek to accommodate or protect religiously-motivated
claims of conscience even where it does not accord the same treat-
ment to other strongly-held beliefs. Marsh v. Chambers, slip op. 17-
18 (Brennan, J., dissenting); see, e.g., Thomas v. Review Board,
450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972);
Gillette v. United States, 401 U.S. 437 (1971).

18 The practice of providing a moment of silence at the outset
of the school day seems substantially less problematic than the
released time program upheld in Zorach. The Zorach program was
directed exclusively to the accommodation of specifically religious
needs, and only religious students could take advantage of it.
Moments of silence, in contrast, are wholly neutral as between
religious and nonreligious needs. As the langauge of the statute
itself demonstrates, silence makes possible not only religious but

16

silent prayer as an acceptable form of prayer. C. Whit-
tier, Silent Prayer and Meditation in World Religions 7
(Congressional Research Service May 27, 1982.“ What-
ever one’s faith, a moment of silence offers an opportunity
for personal devotion; yet it is offensive to no one. A
better example of “accommodation of all faiths * * * and
hostility toward none” (Lynch v. Donnelly, slip op. 8)
would be difficult to find.”

nonreligious contemplation—both “prayer” and “meditation.” And
by the very nature of silence, the mind can be directed to wholly
nontranscendental matters as well—to anything from God to home
work to the girl or boy next door. See Gaines v. Anderson, 421
F. Supp. at 342-343. Thus in no way do moment of silence statutes
“confer any imprimatur of state approval of religious sects or
practices.” Widmar v. Vincent, 454 U.S. 263, 274 (1981).

The Alabama statute requires no gesture or posture that might
limit the usefulness of the moment of silence to adherents of some
religions. Cf. May v. Cooperman, 572 F. Supp. at 1571-1572. The
district court in May found as a fact that the moment of silence
instituted under New Jersey law is unsuitable for prayer by per-
sons of some religious faith (ibid.), but provided no examples of
religions that do not consider silent prayer as at least one acceptable
mode. But even assuming that there are such, the court’s further
conclusion that the moment of silence “prevents others trom engag-
ing in their form of prayer” (id. at 1575) is patently untrue. Ad-
herents of such faiths, like those of no faith at all, remain free to
meditate on secular subjects. Their religious liberty, even if not
enhanced by the moment of silence, is in no way diminished.

1 Pluralism in a different sense would alsc be encouraged by
holding that the states may provide for a moment of silence. There
is no need for nationwide uniformity on the moment of silence.
As the district court observed in May v. Cooperman, 572 F. Supp.
at 1568, attitudes toward such an exercise vary markedly from state
to state and even from community to community. Experience has
shown that in me communities, the moment of silence is widely
accepted and useful in promoting its purposes (see, e.g., id. at
1566-1567 (Sayreville, New Jersey); in others, it has led to some
resistance (see, e. ., id. at 1566-1567 (Princeton, New Jersey) ).
The Alabama statute (unlike some other state statutes) permits
the individual teacher to make the decision whether to conduct
the moment of silence, thus enabling teachers to adapt to the par-

17

To be sure, the moment of silence implicitly pre-
supposes, and thus affirms, the appropriateness of indi-
vidual contemplative activity in an educational setting;
and the Alabama statute (unlike some of the other state
statutes "*) leaves no doubt that religious contemplation
is as legitimate as other forms of meditation. But in
Zorach, the Court rejected the argument that to create
an opportunity for religious practice impermissibly throws
“the weight and influence of the school * * * behind a
program for religious instruction” (343 U.S. at 309).
The distinction is between toleration and accommodation
on the one hand, and sponsorship and establishment on
the other. The moment of silence “endorses” only the
view that the religious observances of others should be
tolerated and, whe possible, accommodated. Lynch v.
Donnelly, slip op. 4.

Finally, the moment of silence occasions no intrusion
whatever by the state into church affairs or vice versa
(cf. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971)),
and thus entails no interference with “the essential av-
tonomy of religious life“ (Marsh v. Chambers, No. 82-
23 (July 5, 1983), slip op. 9 (Brennan, J., dissenting) ).
In Zorach, the released time program required the school
district to decide what “religious centers” would qualify
for participation, and involved the school in receiving

ticular needs of the class. See NYU Note App. at 407-408 (classify-
ing state statutes according to whether the moment of silence is re-
quired for all classrooms, or if not, whether the discretion is vested
in the teacher, the principal, or the school board).

% Some state moment of silence statutes include the word
“prayer”; some do not. See NYU Note App. at 407-408. We do not
believe the presence or absence of the word is constitutionally sig-
nificant. Compare Gaines v. Anderson, supra (upholding moment
of silence statute containing the word prayer with May v.
Cooperman, supra (striking down moment of silence statute con-
taning no reference to “prayer” or any other form of religious
activity). A statute mentioning prayer as the only use of the
moment of silence or purporting to prohibit non-religious uses of
the time would, of course, present a different question.

18

written authorizations from parents and weekly attend-
ance reports from churches (343 U.S. at 308). The
Court did not find these contacts between governmental
and religious authorities to be excessive. Here, not even
such minimal contacts exist. Schoolteachers simply de-
cide whether or not to have a moment of silence; there is
no interaction with religious authorities and no need for
inquiry into religious issues.

B. In Applying the Three-Part Test of Lem n v. Kurtz-
man, the Court of Appeals Failed to Distinguish Be-
tween Government Efforts to Sponsor Religion and
Government Accommodations of the Voluntary Exer-
cise of Religion

The court of appeals devoted little attention in its
opinion to the moment of silence provision. All but one
paragraph of its 20-page opinion (J. S. App. 18a) dealt
with the issues raised by the recitation of spoken prayers
(as to which this Court summari!y affirmed). We suspect
that the moment of silence issue—one of first impression
for that court, as it is for this Court—was simply en-
guifed in the wider waters of the case.

The court of appeals concluded that the moment of
silence statute does not satisfy the “purpose” and “effect”
prongs of the test set forth in Lemon v. Kurtzman,
supra.“ However, the court’s cursory analysis was funda-
mentally flawed, because the court did not distinguish
between government efforts to sponsor (or establish“
a religion and government efforts to accommodate the
practice of religion.

1. Purpose. Relying on a preliminary finding by the
district court on a motion for a preliminary injunction,"

The court made no findings vader the “entanglement” prong of
the test.

18 The district court’s finding, in turn, was predicated on a single

statement by a legislator “that his purpose in sponsoring § 16-1-20.1
was to return voluntary prayer to the public schools. He intended

to provide children the opportunity of sharing in their [sic]

19

the court of appeals stated that “[t)he objective of the
meditation or prayer statute (Ala. Code § 16-1-20.1) was
also the advancement of religion” (J.S. App. 18a). The
existence of “this fact” and the “inclusion of prayer [in
the text of the statute)” led the court to conclude that
the statute “involves the state in religious activities” and
demonstrated to the court that there was “a lack of secular
legislative purpose on the part of the Alabama Legisla-
ture” (ibid.)

This reasoning cannot withstand analysis. The prin-
cipal purpose of the moment of silence statute is not
hidden or difficult to discover: it is to create an oppor-
tunity for school children at the beginning of the school
day to engage in brief silent prayer or meditation.
The court concluded that the “purpose” of this was
the “advanceme ¢ of religion.” But this is so only in
the sense that any attempt to facilitate the free exer-
cise of religion “advances” religion. Yet this Court has
on numerous occasions considered the legitimacy of gov-
ernment efforts to accommodate religion, and has re
peatedly upheld accommodation as a legitimate purpose—
even finding, on occasion, that accommodation is consti-
tutionally required. Lynch v. Donnelly, slip op. 4. See,
e.g., Thomas v. Review Board, supra; Gillette v. United
States, 401 U.S. 487 (1971); Sherbert v. Verner, 374
U.S. 398 (1963); Zorach v. Clauson, supra; cf. United
State. v. Lee, 455 U.S. 252 (1982); Trans World Air-
lines, Inc. v. Hardison, 432 U.S. 63 (1977).

A government practice of accommodating religious
needs also makes an important point about toleration and
pluralism. The moment of silence thus serves the whole
some purpose of “fostering harmony and tolerance among
the pupils.” Schempp, 374 U.S. at 280 (Brennan, J., con-
curring). Ours is a nation of great religious diversity.

spiritual heritage of Alabama and of this country” (J.S. App. 71d).

The district court made no findings regarding legislative purpose
in its final decision.

Schoolchildren may reveal their religious background—
or lack of it—in the clothing they wear, the food they eat,
or the words they utter; religious differences are not
likely to be overlooked. Harmony requires, therefore,
that we develop habits of mutual respect and toleration
for the religious practices of others. The moment of
silence provides an opportunity for young people to learn
that each individual is free to worship and believe (or not
believe) according to the dictates of his own conscience,
and that the religious practices of others do not threaten
or interfere with their own. The moment of silence is
uniquely suited to such a lesson in toleration because of
its dual nature—as an opportunity for exercise of faith
among those who believe, and a wholly secular occasion
for those who do not.“

The court of appeals’ conclusions about the purpose of
the moment of silence statute were based largely on casu-
ally phrased testimony in the district court by the pro-
vision’s sponsor * that his purpose was “to return volun-
tary prayer to the public schools” (J.S. App. 71d). This
statement, viewed in the context of the actual bill he in-
troduced, can most plausibly be read as referring to volun-
tary silent prayer. And since the bill also made pro-
vision for silent meditation, it seems clear that he hoped
to facilitate voluntary silent prayer in a neutral and (we
submit) constitutionally unobjectionable manner. That
some legislators may have harbored the hope that students
would in fact use the opportunity providec for religious
ends is not significant, so long as the means chosen by the
legislature is found to be within the bounds of permis-
sible accommodation. See Mueller v. Allen, No. 82-195

1% Some states and school administrators have also concluded
that a moment of silence is an appropriate way to prepare the
children for the serious work of the day, apart from considera-
tions of religious accommodation.

% This testimony is not a part of the legislative history of the
bill and cannot be considered an authoritative guide to its inter-
pretation under Alabama law. James v. Todd, 267 Ala. 495, 506,
103 So.2d 19, 28-29 (1957).

21

(June 29, 1983), slip op. 6; United States v. O’Brien,
391 U.S. 367, 383 (1968).

Nor should the apparent hostility of some of Alabama’s
iegislators to this Court’s decisions in Schempp and Engel
be considered fatal to the constitutionality of the moment
of silence. Government officials are required to comply
with judicial decisions, not to speak well of them. The
moment of silence statute need not be viewed as a
“guise” for evading this Court’s decisions (J.S. App.
18a); it can more fairly be understood as an attempt—
even if a grudging attempt to comply with them. See
Gaines v. Anderson, 421 F. Supp. at 341.”

2. Effect. The court of appeals’ application of the “ef-
fect” aspect of the Lemon test is so conclusory as to make
it difficult to analyze; however, it appears to mirror that
court’s “secular purpose” analysis. The court’s “hold-
ing] that “the state cannot participate in the advance
ment of religious activities” fails to distinguish between
state actions that “advance” religion by coercing, spon-
soring, or inducing it, and those that “advance” religion
merely by removing obstacles or creating opportunities
for its exercise. This profound distinction between en-

21 It is neither unusual nor suspicious that legislatures should
pursue their policies by other means when one approach has
been invalidated by the courts. See, ¢.g.. Wolman v. Walter, 433
U.S. 229, 233 (1977) (footnote omitted) (“Section 3317.06 [Ohio
Rev. Code Ann. (Supp. 1976) ] was enacted after this Court's May
1975 decision in Meek v. Pittenger, supra, and obviously is an
attempt to conform to the teachings of that decision.”); Bellotti
v. Baird, 443 U.S. 622, 625 (1979) (after Roe v. Wade, 410 U.S.
113 (1973), state legislature passed a statute “intended to regu-
late abortions within present constitutional limits’”). Under most

legitimate public purpose (cf. Palmer v. Thompson, 403 U.S. 217,
225 (1971)); however, where the state adopts a provision that is
substantively distinguishable from the prior legislation (as a
moment of silence is from the prior school prayer and Bible reading
exercises), the new provision should be considered on its own merits
and not deemed unconstitutional simply because it was passed as a
substitute for invalidated legislation.

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23

Amici Curiae in Support of Appellee’s Motion to Dis-
miss or Affirm at 11; see also Harvard Note at 1885.

As far as it goes, this observation is true: silent prayer
can occur without a formal moment of silence. (We re-
call the jest that children will continue to pray in school
as long as there are algebra tests.) Necessity, however,
is not the standard. Approximately half of the st- tes
have judged it appropriate to accommodate the religious
needs of schoolchildren by providing an opportunity to
pray during a formal moment of silence. Their reasons
for doing so are substantial and should not be casually
disparaged.

The principal advantage of the moment of silence is
that it produces silence. Schoolchildren may be able to
meditate or pray during the hustle-bustle of lunch, or on
the playground, or during a lull in classroom activity.
But surely all contemplative activity, including prayer, is
enhanced if outside distractions are momentarily stilled.

The liberating aspect of the moment of silence also
should not be overlooked. Many people, even religious
people, especially children, find it somewhat embarrassing
to be caught in the act of prayer. A student who wanders
off by himself on the playground in order to offer up a
brief prayer, or who lapses into a reverent silence at the
lunch table, might well be the brunt of jokes and intimi-
dation. If all are silent, then all are free to pray or medi-
tate as they choose, without having to appear “different.”
Cf. Schempp, 374 U.S. at 208 n.3.

In any event, most forms of religious accommodation
are subject to the objection that they are “unnecessary.”
The students involved in Zorach could have found time
in the evening or at dawn to engage in religious instruc-
tion, without benefit of the released time program; the
employees of church-operated schools in St. Martin Evan-
gelical Lutheran Church v. South Dakota, 451 U.S. 772
(1981) could probably afford to pay unemployment taxes
(ef. United States v. Lee, supra); there is no indication
that parents in Mueller v. Allen, supra, could not send
their children to religious schools without tax deductions.

24

How serious is the need for a particular religious ac-
commodation (where not required by the Free Exercise
Clause) is primarily a question of public policy, for
legislatures to assess. See United States v. Lee, 455
U.S. at 259-261; Zorach v. Clauson, 343 U.S. at 310,
314. The Religion Clauses do not restrict religious ac-
commodation to cases where the exercise of religion with-
out the accommodation becomes impossible; their pur-
pose is to facilitate the free and voluntary exercise of
religion, not to restrict it to an inhospitable and grudging
minimum.

2. A more substantial objection is that the moment of
silence might be administered in an unconstitutional man-
ner. A teacher might, for example, preface the moment
of silence with an explanation that would tend to indoc-
trinate or induce students to use the time for prayer.
Beck v. McElrath, 548 F. Supp. at 1165. Another teacher
might insist upon a bowing of the head or a folding of
the hands, gestures that convey a specifically religious
symbolism. May v. Cooperman, 572 F. Supp. at 1567,
1571.

These speculations, however, are not pertinent to this
case, which raises solely a challenge to the constitution-
ality of Alabama’s moment of silence law on its face.
Because implementation of the statute has been enjoined
since shortly after its passage, there is no record of how
the moment of silence would be administered.

With certain exceptions not relevant here, a law must
be sustained on a facial challenge so long as there
are nontrivial examples of permissible application. It
cannot be struck down merely because some applica-
tions of it might be unconstitutional. See Kleppe v. New
Mexico, 426 U.S. 529, 546 (1976); Zorach, 343 U.S.
at 311 & n.7. If some teachers or school districts abuse
the moment of silence, a challenge can be brought in that
concrete factual context. See New York v. Ferber, 458
U.S. 747, 767-768 (1982); United States v. Raines, 362
U.S. 17, 20-22 (1960).

2 See note 7, supra.

25

3. It is sometimes suggested that the moment of silence
coerces the unwilling student into “participating” in a
“State prescribed religious observance.” May v. Cooper-
man, 572 F. Supp. at 1571; see also Duffy v. Las Cruces
Public Schools, 577 F. Supp. at 1022. This is true, ac-
cording to one court, even when the student is not in-
duced to pray, because the moment of silence in itself
“requires all students to assume a posture identified as
the posture of prayer of certain religious groups.” May v.
Cooperman, 572 F. Supp. at 1571. This forces the stu-
dents “to decide whether * * * [to] submit to an exercise
which violated their beliefs or whether they should sepa-
rate themselves from their peers.” Id. at 1576.

This, we submit, is pure nonsense. Silence in itself is
not a religious exercise in which one is forced to “par-
ticipate”; it is merely a private moment, to be used as
one wishes, for religious or nonreligious contemplation.
As the court observed in Gaines v. Anderson, 421 F.
Supp. at 345, [if a student’s beliefs preclude prayer in
the setting of a minute of silence in a schoolroom, he may
turn his mind silently toward a secular topic, or simply
remain silent, without violating the statute * * * or fac-
ing the scorn or reproach of his classmates.” **

D. This Court Has Rejected the Absolutist Approach to
the Establishment Clause That Would Require Elim-
ination of All Religious Elements From Our Public
Life

The moment of silence faces still another objection,
generally unstated but no less serious: some children will
actually use the opportunity to pray. No matter that

24 A study was performed of the moment of silence as practiced
in a New Mexico school district. Based on televised observations
of student reaction and structured interviews, the researchers con-
cluded that up to 20% of the students “assumed positions which
could be interpreted as having the probability of being a religious
act,” but that “most persons viewed the moment of silence as simply
silence and not as prayer.” May v. Cooperman, 572 F. Supp. at 1568
(footnote omitted).

children are equally free to meditate, or daydream, or
doze; no matter that none is coerced, intimidated, or in-
doctrinated in any fashion. The prospect that some indi-
viduals could openly (even if silently) pray in a public
school is inconsistent with the “absolutist approach” to
the Establishment Clause (Lynch v. Donnelly, slip op. 8)
that this Court has frequently confronted. The animating
ideal of that approach is a pristinely secular society in
which all public manifestations of religious faith and
practice are deemed inappropriate; where religion, if it
is to be practiced at all, is relegated to the purely private
sphere of home and church. That approach demands not
neutrality and pluralism but a rigorous extirpation of
religious elements from public occasions, no matter how
minor, traditional, evenhanded, noncoercive, or inoffensive
they may be. See, e.g., Lynch v. Donnelly, supra; Marsh
v. Chambers, supra; Widmar v. Vincent, supra; O’Hair
v. Andrus, 613 F.2d 931 (D.C. Cir. 1979). It exemplifies
an attitude “partak[ing] not simply of that noninterfer-
ence and noninvolvement with the religious which the
Constitution commands, but of a brooding and pervasive
devotion to the secular and a passive, or even active,
hostility to the religious.” Schempp, 374 U.S. at 306
(Goldberg, J., concurring).

This Court, however, has consistently affirmed consti-
tutional ideals that “rest on and encourage diversity and
pluralism in all areas” (Lynch v. Donnelly, slip op. 8
(emphasis added) ), and that give due respect to religious
observances that have “become part of the fabric of our
society” (Marsh v. Chambers, slip op. 9). See also
Lynch v. Donnelly, slip op. 5-8. It has repeatedly rejected,
both explicity and implicitly, the notion “that the Estab-
lishment Clause of the First Amendment not only man-
dates religious neutrality on the part of government but
also requires that this Court go further and throw its
weight on the side of those who believe that our society
as a whole should be a purely secular one.” Meek v.
Pittenger, 421 U.S. 349, 395 (1975) (Rehnquist, J.,

27

dissenting). From the famous dictum that [wle are
a religious people whose institutions presuppose a Su-
preme Being” (Zorach v. Clauson, 343 U.S. at 313) to
the recent affirmation of the “unbroken history of
official acknowledgment by all three branches of govern-
ment of the role of religion in American life“ (Lynch v.
Donnelly, slip op. 5), this Court has resisted efforts to use
“(t]he Establishment Clause as a sword to justify
repression of religion or its adherents from any aspect of
public life.” McDaniel v. Paty, 435 U.S. at 641 (Brennan,
J., concurring) (footnote omitted).

It is true that religious practice makes some people
uncomfortable: “there are those who profess no religion
and to whom any form of prayer is offensive” (May v.
Cooperman, 572 F. Supp. at 1575). But the Constitution
does not protect against the observance by others of re-
ligious beliefs with which we disagree. Cf. Cantwell v.
Connecticut, 310 U.S. 296 (1940). And we have no right
to demand that their thoughts and words, because they
are religious in nature, should be excluded from schools
or other public places (Widmar v. Vincent, supra),
placed under special burdens or inhibitions (McDaniel v.
Paty, supra), or denied the benefit of the government’s
acknowledged power to encourage and give free rein to
voluntary First Amendment activity (Heffron v. Inter-
national Society for Krishna Consciousness, 452 U.S. 640
(1981)). The Establishment Clause does not require stu-
dents to shed their religious beliefs and practices at the
schoolhouse gate for fear of offending their fellows. Cf.
Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 506 (1969) .*

25 Some courts seem to be moved by a nervous overestimation of
the seductive and coercive power of religious expression—an atti-
tude which stands in striking contrast to the view frequently ex-
pressed in other contexts that our people do not need to be shielded
from uninhibited and robust express‘on. Compare Brandon v.
Board of Education, 635 F.2d 971, 97% (2d Cir. 1980), cert. de
nied, 454 U.S. 1123 (1981) (voluntary student religious group
may not meet on school grounds before school; impressionable

The special character of the public school classroom
justifiably makes us especially sensitive to possible Estab-
lishment Clause problems in that setting. But we should
be sensitive to the need for toleration and accommodation
in the schoolhouse as well as to the need for voluntarism
and neutrality. We should nurture and encourage efforts
to widen rather than narrow the liberty of religious
exercise.”®

Attendance at elementary and secondary schools is com-
pulsory, and it constitutes a major portion of the pupils’
time and activity. To those who regard prayer as in-
trinsic to all of their activities, the opportunity for
prayer at school assumes a special importance. The values
of pluralism and diversity in our public schools suffer
needlessly from a reading of the Establishment Clause
that destroys the possibility of accommodating, in a spirit
of toleration, voluntary religious practices of the sort
involved in this case.

Moment of silence statutes are libertarian in the pre-
cise spirit of the Bill of Rights. This is best illumined
simply by visualizing a classroom of schoolchildren who
have, pursuant to the Alabama statute, been asked to be
silent for one minute to open their school day. From the
viewpoint of the Constitution, has anything gone wrong
here? All we know with certainty is that, for one minute,
weeps dawg capt that each child has been made to
be alone with his thoughts. If a child uses this moment of

youngsters will he vulnerable to peer pressure and to perceptions
of official endorsement of religion), with Gambino v. Fairfax County
School Board, 429 F. Supp. 731, 736-737 (E.D. Va. 1977) ; Bayer v.
Kinzler, 383 F. Supp. 1164 (E.D. N.Y. 1974), aff'd, 515 F.2d 504 (2d
Cir. 1975) (school authorities may not prevent student newspaper
from printing articles on sexual activity and birth control; author-
ities’ fears that official status of newspaper could lead to undue
pressure or misunderstanding by students unfounded).

20 It was precisely in the context of public schools that this
Court commended efforts to encourage and cooperate with the
religious needs of students as following! the best of our tradi-
tions.” Zorach, 343 U.S. at 314.

silence, privately, to dedicate himself to God, nothing in
the spirit of the Constitution has been offended. All we
have done is to accommodate those who wish to pray, and
we have done so in the most neutral and noncoercive
spirit possible. To hold that the moment of silence is un-
constitutional is to insist that any opportunity for re-
ligious practice, even in the unspoken thoughts of school-
children, be extirpated from the public sphere. It is to be
censorial where the Religion Clauses are libertarian; it
is inconsistent with our national commitment to freedom
and tolerance.
CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

Rex E. Lee
Solicitor General
WX. BRADFORD REYNOLDS
Assistant Attorney General
PAUL M. BaTor
Deputy Solicitor General
MICHAEL W. McConNELL
Assistant to the Solicitor General
BRIAN K. LANDSBERG
MARGARET P. SPENCER
Attorneys
JULY 1984

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0031%3A15. Public record. Not legal advice.