Amicus Curiae Brief — Karcher v. May

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Supreme Court, U.S.

EILED

APR 13 1987

No. 85-1551

CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

ALAN J. KARCHER, ET AL., APPELLANTS

JEFFREY MAY, ET AL.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

CHARLES FRIED

Soltcitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistant Attorney General

ANDREW J. PINCUS

Assistant to the Solicitor General

DAVDD K. FLYNN

LISA J. STARK

DENNIS J. DIMSEY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether appellants have standing to invoke this

Court’s appellate jurisdiction.

2. Whether a state statute that provides for a moment

of silence in public school classrooms “to be used solely

at the discretion of the individual student * * * for

quiet and private contemplation or introspection” (N.J.

Stat. Ann. § 18A:36-4 (West. Supp. 1986)) violates the

Establishment Clause of the First Amendment.

TABLE OF CONTENTS

Page

GD eee aii 1

EL a a ee 2

Summary of argument ........................... iadineiad liaiaaiuaiaiaiate 7

Argument:

I. Appellants lack standing to maintain this ap-

ERR Cg TSO SO a 8

II. The New Jersey statute does not violate the

Establishment Clause ...........0......... So ERS br ee 14

A. The New Jersey statute has a valid primary

ER a Rae NE Se None eC 14

B. The statute does not have the impermissible

effect of advancing or inhibiting religion, or

of creating an entanglement between church

a ceumninsoen 28

I Se ee 81

TABLE OF AUTHORITIES

Cases:

Abington School Dist. v.'Schempp, 374 U.S. 203

(1963) ........ BO Saget PES Se Ie eR 14, 16, 22, 30

Ansonia Board of Education v. Philbrook, No. 85-

EE Sa roe Ree ee 2

Bender vy. Williamsport Area School Dist., No. 84-

a sseeanadiounees 9,11, 12, 13

Bose Corp. v. Consumers Union, 466 U.S. 485

I a I CS Ee RR 6, 23

Bowen V. Roy, No. 84-780 (June 11, 1986) 2,19

Brandon V. Holt, 469 U.S. 464 (1985) 10

Burke v. Barnes, No. 85-781 (Jan. 14, 1987) 13

Coleman V. Miller, 307 U.S. 433 (1939) . 13

Davis v. Preston, 280 U.S. 406 (1930) 1]

Diamond v. Charles, No. 84-1379 (Apr. 30, 1986).. 9, 11,

12, 13

(111)

Cases—Continued : Page

Engel v. Vitale, 370 U.S. 421 (1962) -.................... 30

Epperson V. Arkansas, 393 U.S: 97 (1968) -.......... 26

Estate of Thorten v. Caldor, Inc., 472 U.S. 703

CD. -ccceieccnnccsesnitisinnineniannieciancnanntaniniiaipiaanniaitiiteiatininiaintite 2

Everson V. Board of Education, 330 U.S. 1 (1947) -. 25

Field v. Clark, 143 U.S. 649 (1892) .......................... 12

Gillette v. United States, 401 U.S. 487 (1971)....19, 20, 28

Goldman v. Weinberger, No. 84-1097 (Mar. 25,

I eiacccecrcvininianantencinsiialbitiaiiiitiaibiidaliiiliieicatinialeiciiainianitiins 2

Goldwater vy. Carter, 444 U.S. 996 (1979) ee ee 13

Hobbie v. Unemployment Appeals Comm’n, No. 85-

FRR re eee 2,19

Hunter v. Underwood, 471 U.S. 222 (1985) .-........... 26

Illinois ex rel. McCollum v. Board of Education,

RE ls Se I Siebel ete ininerinictinitcictcinens 21

Kentucky v. Graham, 473 U.S. 159 (1985) -............ 10

Larson V. Valente, 456 U.S. 228 (1982) .................... 28

Lemon V. Kurtzman, 403 U.S. 602 (1971) ..2, 3, 4, 8, 14, 30

Lynch vy. Donnelly, 465 U.S. 668 (1984) ...... 2, 15, 18, 19, 28

Marsh v. Chambers, 463 U.S. 783 (1983) -....... 2, 19, 20, 30

McDaniel v. Paty, 435 U.S. 618 (1978) .................... 19

McGowan V. Maryland, 366 U.S. 420 (1961) ........ 17,-20, 25

McRae v. Mathews, 421 F. Supp. 533 (E.D.N.Y.

1976), rev’d, 448 U.S. 297 (1980) -....................... 13

Miller v. Fenton, No. 84-5786 (Dec. 3, 1985) -....... 23

Monell v. New York City Dep’t of Social Services,

a i Se I italia i ititcientibiiiiantennen 9

Mueller vy. Allen, 463 U.S. 388 (1983) -............... 16, 20, 22

NLRB vy. Catholic Bishop, 440 U.S. 490 (1979)........ 20

Princeton University v. Schmid, 455 U.S. 100

I eae isin ttaaa iat ataitaiiaatie aarialstia hi iuaies 9

Roemer v. Board of Public Works, 426 U.S. 736

ee ee ee ee eee 2

St. Martin ing get Lutheran Church v. South

Dakota, 451 U.S. T72 (1961) ............................ 2, 20, 22

School District v. ay 473 U.S. 378 (1985) ............ 2, 29

Selective Service System V. Minnesota Public In-

terest Research Group, 468 U.S. 841 (1984)........ 27

Sherbert v. Verner, 374 U.S. 398 (19638) ................ 19

Sloan v. Lemon, 413 U.S. 825 (1978) —........00 2

Stone v. Graham, 449 U.S. 339 (1980) 2.0.0.0. 25

Cases—Continued : Page

Thomas Vv. Review Board, 450 U.S. 707 (1981) ........ 19

Tilton vy. Richardson, 403 U.S. 672 (1971) ............ 2

TWA V. Hardison, 432 U.S. 63 (1977) .................... 2,19

United States v. Ballin, 144 U.S. 1 (1892) ............. 12

United States v. Lee, 455 U.S. 252 (1982) -.......... 2, 22

United States v. O’Brien, 391 U.S. 367 (1968) ........ 25

United States v. Seeger, 380 U.S. 163 (1965) _...... 16

Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc.,

a a ith icbittictictetid chnsssnnatbainceinnccn 8-9

Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252 (1977). 26

Wallace v. Jaffree, 472 U.S. 38 (1985) -............. passim

Walz v. Tax Comm’n, 397 U.S. 664 (1970) ..... ... 19, 20

Widmar v. Vincent, 454 U.S. 263 (1981) —.............. —

Wisconsin Vv. Yoder, 406 U.S. 205 (1972) ......... | 19

Witters v. Washington Dep’t of Services for the

Blind, No. 84-1070 (Jan. 27, 1986) _.............2...... 2,19

Zorach v. Clauson, 343 U.S. 306 (1952) ........17, 18, 20, 21,

22, 28, 30

Constitutions, statutes and rules:

U.S. Const. :

Amend. I:

(Establishment Clause) . recnncselg te Bay ee Be

(Free Exercise Clause) ome Ul

| ERE KLIS

N.J. Const. :

ES ee PERE VOSS oe eh 11

EE a Le En Sl tae 1

SEA ey a ee oe rere 1

6 eae a al a le 1

22 U.S.C. 276011 .................. et oe LE Se 1

ES ee ae RRO AIOE OS 1

EEE RT ee ne ais 11

EEC ee 2

N.J. Stat. Ann. (West Supp. 1986) :

i «ERS Sr SE ENP Na RESET 12

a a 2,8

Statutes and rules—Continued : Page

Fer eRe ee eT 11

| SE ESSE ena cat 11

I suiaiasieienioeiimiiangnte 8,10

Fed. R. Civ. P.:

REIS ene eee ener NORE ce 10

A eee ee cee Ss ee 6

Sup. Ct. R.:

EISELE Ne Sea OO ee TS Oo eae rR 11

REO ARR Aa te Sk Saree ave? CPE Ne 11

AR ERE ce a are ee Oe 10

Miscellaneous:

NS 15

McConnell, Accommodation of Religion, 1985 Sup.

i 18

Montaigne, Of Solitude, in The Complete Works of

Montaigne (D. Frame trans. 1958) ........ a aoe 15

Plutarch, Concerning Talkativeness, in VI Plu-

tarch’s Moralia (W.C. Helmbold trans. 1927)... 15

I H.D. Thoreau, Journal (B. Torrey ed. 1906) ........ 15

C. Whittier, Silent Prayer and Meditation in World

Religions (CRS May 27, 1982) ............0000-00000.. 28

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1551

ALAN J. KARCHER, ET AL., APPELLANTS

Vv.

JEFFREY MAY, ET AL.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case concerns the constitutionality, under the

Establishment Clause of the First Amendment, of a New

Jersey statute that authorizes a moment of silence in

public schools to enable students to engage in private

contemplation or introspection. The United States is au-

thorized to operate schools for military and foreign serv-

ice dependents under certain circumstances. See 10

U.S.C. 7204 (Navy); 20 U.S.C. 241 (federal prop-

erty); 20 U.S.C. 926 (Department of Defense); 22

U.S.C. 2701 (foreign service); 25 U.S.C. 271-304b

(schools for Indians}. The resolution of this case will

bear on Congress’s authority to allow periods for volun-

tary silent prayer or meditation in such schools. The

United States also has a more general interest in the

extent to which the Constitution permits government to

adopt neutral and noncoercive accommodations to private

religious practices.’

1The United States has participated as a party or as amicus

curiae in numerous cases arising under the Religion Clauses of

the First Amendment. See, e.g., briefs filed by the United States in

Corporation of the Presiding Bishop of The Church of Jesus Christ

(1)

STATEMENT

1. In December 1982, the New Jersey legislature en-

acted a statute providing for a moment of silence at the

opening of the day in each of the State’s public schools.

The statute (N.J. Stat. Ann. § 18A:36-4 (West Supp.

1986) ) states:

Principals and teachers in each public elementary

and secondary school of each school district in this

State shall permit students to observe a 1 minute

period of silence to be used solely at the discretion

of the individual student, before the opening exer-

cises of each school day for quiet and private con-

templation or introspection.

The statute became effective on December 17, 1982 (J.5.

App. 4a, 65a).

On January 10, 1983, appellees—a New Jersey public

school teacher, several public school students, and par-

ents of public school students—commenced this action

under 42 U.S.C. 1983 in the United States District Court

for the District of New Jersey, alleging that the statute

is unconstitutional on its face and as applied, and seek-

ing an injunction against its implementation. The com-

plaint named as defendants the State Commissioner of

Education, the Edison Township Board of Education,

of Latter Day Saints v. Amos, No. 86-179 (argued Mar. 31, 1987) ;

Hobbie v. Unemployment Appeals Comm’n, No. 85-993 (Feb. 25,

1987); Ansonia Board of Education vy. Philbrook, No. 85-495

(Nov. 17, 1986); Bowen v. Roy, No. 84-780 (June 11, 1986);

Goldman Vv. Weinberger, No. 84-1097 (Mar. 25, 1986); Witters Vv.

Washington Dep’t of Services for the Blind, No. 84-1070 (Jan. 27,

1986); School District v. Ball, 473 U.S. 373 (1985); Estate of

Thorton v. Caldor, Inc., 472 U.S. 703 (1985); Wallace v. Jaffree,

472 U.S. 38 (1985); Lynch v. Donnelly, 465 U.S. 668 (1984);

Marsh v. Chambers, 463 U.S. 783 (1983); United States v. Lee,

455 U.S. 252 (1982); St. Martin Evangelical Lutheran Church Vv.

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 Vv. Board of Public Works, 426 U.S. 736 (1976): Lemon Vv.

Kurtzman, 403 U.S. 602 (1971); and Tilton v. Richardson, 403 U.S.

672 (1971).

and the Old Bridge Township Board of Education. J.S.

App. 4a, 65a.

On January 18, 1983, the district court allowed inter-

vention as defendants by “Alan J. Karcher in his repre-

sentative capacity as Speaker of the New Jersey General

Assembly, the New Jersey General Assembly, Carmen A.

Orechio in his representative capacity as President of

the New Jersey Senate and the New Jersey Senate”

(Mot. to Dis. App. 22a). The original defendants took

no active role in defending the statute; “the intervening

defendants vigorously contested the action both during

pretrial discovery proceedings, and at the trial itself.”

J.S. App. 66a; see also id. at 6a.

Following trial, the district court entered a declaratory

judgment stating that the New Jersey statute violated

the Establishment Clause of the First Amendment (J.S.

App. 62a-102a). It concluded from the evidence adduced

at trial (id. at 66a-85a) that the purpose of the statute

“was to mandate a period at the start of each school day

when all students would have an opportunity to engage

in prayer” (id. at 86a). It found that the statute was

promoted by persons favoring an opportunity for prayer

in school, and that the statute was opposed by those who

perceived the moment of silence as “an enforced religious

observance” (id. at 87a). The court rejected the conten-

tion that the statute’s purpose was “to provide a transi-

tion from non-school life to school work” (ibid.).

Applying the test set forth by this Court in Lemon v.

Kurtzman, 403 U.S. 602 (1971), the district court stated

that a statute is valid under the Establishment Clause if

it has a secular legislative purpose, its principal or pri-

mary effect neither advances nor inhibits religion, and

it does not foster an excessive government entanglement

with religion (J.S. App. 89a-90a). Looking to the actions

of prior New Jersey legislatures in attempting to “rein-

troduce a mandatory time for prayer in the public

schools; the debate upon the [statute] which was in terms

of public prayer and State involvement in religion; [and]

the time and manner in which the minute of silence was

mandated, following the form and posture of school

prayer which was outlawed in the early 1960’s” (id. at

90a), the court found that the statute had a religious

purpose. .

The court also concluded that the statute “both ad-

vances and inhibits religion” (J.S. App. 94a). Religion

would be inhibited, according to the district court, be-

cause some persons believe that “mandated prayer is no

longer prayer,” but is “drained of its substance, loses

its power and becomes but an empty shell” (id. at 95a).

In addition, those whose prayers “require movement and

sound” would be prevented from engaging in their form

of prayer (id. at 96a). Finally, the court stated that

the statute requires persons “who profess no religion”

to “assume a posture suggestive of particular forms of

prayer” or “face public opprobrium or ridicule by asking

to be excused each day” (id. at 97a).

The district court also concluded that the statute “fos-

ters an excessive government entanglement with religion”

(J.S. App. 98a). It found that the statute “would not

involve the State in the kind of continued and pervasive

monitoring of sectarian activities’ condemned by this

Court in Lemon v. Kurtzman, supra, but that the statute

would “terd to promote divisiveness among and between

religious groups, another form of entanglement” (J.S.

App. 98a) .?

2. The court of appeals affirmed by a divided vote

(J.S. App. la-61a). It rejected the district court’s con-

struction of the statute as “direct[ing] that all pupils

be required to engage in a silent moment” (id. at 9a

(footnote omitted) ), holding that such participation is

“permissive only” (id. at 15a), and that students need

only “refrain from interrupting the observance” (see id.

at 2la-22a). The court of appeals also rejected the dis-

trict court’s conclusion that the statute would foster an

excessive entanglement between government and religion

by promoting divisiveness among religious groups. Ob-

2 The district court declared the statute unconstitutional on its

face and as applied, but entered no injunctive relief (J.S. App.

101la-102a).

serving that “any accommodation made by government

to the free exercise of religion by believers is politically

divisive in the sense that it offends those who believe

that such accommodation is an unwarranted toleration,”

the court concluded that political divisiveness is not

the test for finding an impermissible entanglement between

government and religion (J.S. App. 17a). If the pos-

sibility of divisiveness alone were sufficient, the court

noted, “no governmental accommodation of religion would

survive establishment clause scrutiny” (ibid.).

The court of appeals next held that the statute did not

have the effect of advancing or inhibiting religion. It

found irrelevant the district court’s observation that the

statute does not accommodate the religious beliefs of per-

sons whose prayer must be oral or otherwise self-expres-

sive, noting that “[i]t is * * * the compulsory school

attendance law, not N.J.S.A. 18A:36-4, that ‘prevents

other persons from engaging in their kind of prayer’ ”

(J.S. App. 19a). The court held that the restriction

upon the oral or self-expressive activities of students not

wishing to participate was “valid as a legitimate time,

place, and manner regulation” (id. at 22a).* It found

that the state had not improperly advanced religion by

setting aside a specific time for permissive silent prayer:

“if accommodation to the preference of those who wish

to pray silently is to be made at all, the state must be

free to designate when, during the school day, such

accommodation shall take place” (ibid.).

Finally, the court of appeals considered whether the

legislature acted with a permissible purpose when it en-

acted the moment of silence statute. Analyzing this

Court’s decision in Wallace v. Jaffree, 472 U.S. 38

(1985), the court of appeals concluded that “in the ab-

stract a statute such as N.J.S.A. 18A:36-4 would not

* * * be deemed invalid under the purpose leg of Lemon

8 The court stated that requiring other pupils to remain seated

might not be “the only possible accommodation to the views of

nonparticipants. * * * In some districts it may be possible that

nonparticipating pupils leave the classroom during the exercise”

(J.S. App. 22a).

v. Kurtzman” (JS. App. 26a). It noted, however, that

the district court had found that the legislature acted

with a religious purpose. Applying the clearly erroneous

standard to that finding (see Fed. R. Civ. P. 52(a)),

the court of appeals upheld the district court’s rejection

of “the legislators’ tendered secular purpose—to provide

a transition from nonschool to school life” (J.S. App.

27a). It therefore “accept[ed]” the district court’s find-

ing that the legislature’s purpose was religious “at least

to the extent vi requiring school districts to accommodate

those students desiring the opportunity to engage in

prayer at some point during the school day” (id. at 27a-

28a). It emphasized that “a finding that the religious

purpose was to encourage prayer over other alternatives,

rather than to accommodate those wishing to pray would

[not] be sustainable” (id. at 29a).

The court concluded that the question before it was

whether the state may “take action in the school setting

that, while not endorsing prayer in preference to other

forms of silent activity, provides for a minute of silence

for the purpose of permitting prayer by those who want

to pray” (J.8. App. 29a). Stating that this Court has

required a “secular purpose” to sustain statutes against

an Establishment Clause challenge and that the district

court had found no such purpose underlying the New

Jersey statute, the court of appeals declared the statute

to be unconstitutional (id. at 29a-30a).

Judge Becker dissented (J.S. App. 3la-60a). He stated

that “a permissive, facially neutral statute such as the

New Jersey moment of silence law, which has no im-

permissible effects and fosters an [sic] impermissible

entanglement, carries with it a strong presumption of

constitutionality which only the clearest proof of an ab-

sence of secular purpose can vitiate” (id. at 48a). Rely-

ing upon this Court’s decision in Bose Corp. v. Consumers

Union, 466 U.S. 485 (1984), Judge Becker concluded

that the district court’s finding of a religious purpose

was subject to plenary review (J.S. App. 43a-47a).

Judge Becker carefully analyzed the evidence in the

record and concluded that the evidence was not sufficient,

“separately or cumulatively, to prove an absence of any

secular purpose behind the statute.” He found the evi-

dence equivocal at best, and noted that “the single un-

ambiguous piece of evidence—the face of the statute it-

self—attests to the secular motives of the legislators,”

and in that regard was supported by parts of the testi-

mony of the witnesses who attended the legislative hear-

ings (J.S. App. 58a‘.*

8. The court of appeals’ judgment was entered on

December 24, 1985 (J.S. App. 104a-105a). Ca January

14, 1986, appellant Karcher was replaced as Speaker of

the New Jersey General Assembly by Charles Hardwick;

appellant Orechio was replaced as President of the New

Jersey Senate by John Russo on the same date (Mot. to

Dis. ii). In March 1986, appellants filed a notice of ap-

peal to this Court and a jurisdictional statement. One

month later, the incumbent Speaker of the New Jersey

General Assembly and President of the New Jersey Sen-

ate directed appellants’ counsel to withdraw the appeal

to this Court (Mot. to Dis. App. 4a-5a). Appellant

Karcher responded to those directives by informing his

counsel that “[t]he legislative action in question was the

product of the 200th Legislature and specifically was a

bill which had the General Assembly as its house of

origin. The 200th Legislature has an independent legal

existence separate and apart from the 202nd J.-gislature

and it is in fact that legislative body which is your client”

(id. at 6a).

SUMMARY OF ARGUMENT

I. This appeal should be dismissed for want of juris-

diction because appellant Alan J. Karcher—the only ap-

pellant pursuing this appeal—lacks standing to invoke

this Court’s appellate jurisdiction. Karcher intervened

in this case in his official capacity as Speaker of the New

Jersey General Assembly. Shortly after the court of ap-

peals rendered its decision in this case, Karcher was re-

Judge Becker further stated that even under a deferential

standard of review he would overturn the district court’s conclusion

that the statute lacke4 a secular purpose (J.S. App. 58a-60a).

placed as Speaker by Charles Hardwick; by operation

of Rule 43(c) (1) of the Federal Rules of Appellate Proce-

dure, Hardwick was “automatically substituted as a

party” for Karcher. Hardwick has requested that the

appeal to this Court be withdrawn. Because Karcher is

no longer a party to this case, he has no standing to

pursue the appeal.

II. If the Court reaches the merits, it should hold

that the New Jersey statute does not violate the Estab-

lishment Clause. The statute is plainly supported by an

appropriate legislative purpose under this Court’s deci-

sion in Lemon v. Kurtzman, 403 U.S. 602 (1971). The

statute simply permits a minute of silence for “quiet and

private contemplation or introspection” (N.J. Stat. Ann.

$s 18A:36-4 (West Supp. 1986)). We find two permis-

sible purposes based upon the language of the statute.

First, the statute by its terms provides an opportunity

for reflection before beginning the work of the day. Sec-

ond, the statute serves the additional purpose of accom-

modating the religious needs of students by providing an

opportunity for silent prayer. A majority of the Court

indicated in Wallace v. Jaffree, 472 U.S. 38 (1985), that

a moment of silence statute could be upheld against an

Establishment Clause challenge, and the New Jersey stat-

ute satisfies the standard set forth in that decision.

ARGUMENT

I. APPELLANTS LACK STANDING TO MAINTAIN

THIS APPEAL

Article III of the Constitution limits the “judicial

power” of the United States to the resolution of “cases”

and “controversies.” In order to ensure the presence of

a case or controversy, Article III requires, “at an ir-

reducible minimum, [that] the party who invokes the

court’s authority * * * ‘show that he personally has suf-

fered some actual or threatened injury as a vesult of the

putatively illegal conduct of the defendant,’ and that the

injury ‘fairly can be traced to the challenged action’ and

‘is likely to be redressed by a favorable decision.’” Val-

ley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 472

(1982); see also Diamond v. Charles, No. 84-1379 (Apr.

30, 1986), slip op. 6-7; Bender v. Williamsport Area

School Dist., No. 84-773 (Mar. 25, 1986), slip op. 6-8.

This Court has made clear that a party seeking to in-

voke a federal court’s appellate jurisdiction, no less than

a plaintiff seeking to invoke the jurisdiction of a fed-

eral district court, must satisfy this standing require-

ment imposed by Article III. See Diamond v. Charles,

supra; Bender v. Williamsport Area School Dist., supra.

In our view, appellant Karcher lacks standing to invoke

this Court’s appellate jurisdiction, and the appeal should

therefore be dismissed for want of jurisdiction.°

1. An action against a government officer in his offi-

cial capacity “generally represent/[s] only another way

of pleading an action against an entity of which an offi-

cer is an agent” (Monell v. New York City Dep’t of

Social Services, 486 U.S. 658, 690 n.55 (1978)). “As

long as the government entity receives notice and an

opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against

the entity. It is not a suit against the official personally,

5 It appears from the documents filed in this Court that Karcher

is the only appellant pursuing this appeal. The jurisdictional state-

ment identifies four appellants: appellant Karcher, “the New

Jersey Genera] Assembly, Carmen A. Orechio, as President of

the New Jersey Senate, and the New Jersey Senate” (J.S. ii).

The incumbent Speaker of the General Assembly and President of

the Senate have disavowed any interest in pursuing an appeal in

this Court (Mot. to Dis. App. 4a-5a). Because the legislative

bodies’ interest in intervening in this action was presented through

the representations of the prior Speaker and President, who asserted

a right to represent the legislative bodies’ views in litigation

(see id. at 15a), these new representations appear to be sufficient

to withdraw the General Assembly and the Senate as appellants

before this Court. Appellant Orechio has not indicated any interest

in pursuing the appeal before this Court over the objection of

the current President of the Senate. Cf. Princeton University Vv.

Schmid, 455 U.S. 100 (1982). In any event, his status is indistin-

guishable from that of appellant Karcher and he therefore lacks

standing for the reasons discussed in the text below.

for the real party in interest is the entity.” Kentucky Vv.

Graham, 473 U.S. 159, 166 (1985) (emphasis in original;

citation omitted) ; see also Brandon y. Holt, 469 U.S. 464,

471-473 (1985).

The district court permitted appellant Karcher to in-

tervene as a defendant in this action “in his representa-

tive capacity as Speaker of the New Jersey General As-

sembly” (Mot. to Dis. App. 22a). The colloquy at the

hearing at which the intervention motion was granted

makes clear that Karcher intervened not as an individ-

ual, but solely in his official capacity as Speaker in order

to represent the General Assembly (id. at 15a, 16a,

21a).° Because he intervened in this action as Speaker

of the New Jersey General Assembly, and he no longer

holds that office, Karcher is no longer a party to this

litigation.

Rule 43(c) (1) of the Federal Rules of Appellate Pro-

cedure states that “[w]hen a public officer is a party to

an appeal or other proceeding in the court of anpeals in

an official capacity and during its pendency dies, resigns,

or otherwise ceases to hold office, * * * [his] successor

is automatically substituted as a party. * * * An order

of substitution may be entered at any time, but the

omission to enter such an order shall not affect the sub-

stitution.” The Rules of this Court and the Federal

Rules of Civil Procedure each contain an essentially

identical provision. See Sup. Ct. R. 40.3; Fed. R. Civ. P.

25(d) (1). On January 14, 1986, Charles Hardwick re-

placed Karcher as Speaker of the General Assembly; by

operation of this rule of procedure Speaker Hardwick

automatically was substituted for Karcher as the official-

capacity party in this litigation. See Kentucky v. Gra-

ham, 473 U.S. ac 166 n.11; Brandon v. Holt, 469 U.S. at

470-471. Karcher is not now a party to this action and,

6 The fact that Karcher was not named as an original defendant

in the complaint, but intervened as a defendant little more than

a week after the complaint was filed, does not alter the fact that

he appeared in the action solely in his official capacity as Speaker of

the New Jersey General Assembly.

therefore, has no status that would entitle him to invoke

the appellate jurisdiction of this Court. Cf. Davis v.

Preston, 280 U.S. 406, 407 (1930) (citation omitted)

(where a state supreme court had entered judgment

against a federal officer in his official capacity, and the

federal officer had been replaced by a successor, the

former officer “was not then in a position to complain

of the judgment or to invoke a review of it by this

Court. All right and discretion to do either had passed

to his successor in office”’) .”

2. Karcher may assert that he has standing to appeal

in his capacity as an individual state legislator. As a

threshold matter, Karcher intervened in this action in

his official capacity as Speaker of the New Jersey Gen-

eral Assembly in order to represent the General Assem-

bly as a whole; he did not intervene as an individual

legislator (see Mot. to Dis. App. 14a-l6a, 22a). He may

not participate in these proceedings in the latter capacity

without first filing “an appropriate motion or pleading

setting forth the claim or defense that he desires to as-

sert” (Bender v. Williamsport Area School Dist., slip op.

13 (footnote omitted)). Even if Karcher were properly

before this Court in his capacity as an individual state

legislator, moreover, he would have no standing to pur-

sue this appeal.

In Diamond v. Charles, supra, the Court observed that

“a State has standing to defend the constitutionality of

its statute” (slip op. 7). A state generally asserts this

interest through the actions of its Attorney General.

See 28 U.S.C. 2403; Sup. Ct. R. 28.4(b), (c); N.J. Stat.

Ann. §§ 52:17A-4, 52:17B-2 to 17B-5 (West Supp.

1986). Subject to any constraints imposed by Article

7 Karcher appears to assert (Mot. to Dis. App. 6a-7a) that

he remains a party to this litigation as a representative of the

200th New Jersey Legislature, the body that enacted the moment of

silence law. But that legislative body expired in January 1984

(see N.J. Const. Art. 4, §1, para. 3). Karcher cannot represent

an entity that no longer exists.

III and state law, a state may confer this interest upon

other government officials or otherwise provide for its

assertion in a judicial proceeding. See, e.g., N.J. Stat.

Ann. § 2A: 1-10 qw est Supp. 1986) (authorizing the state

supreme court to “appoint counsel specially to represent

any party or interest as may be deemed necessary” in an

action involving the constitutionality of a statute provid-

ing for the expenditure of public funds by the state or a

state instrumentality). We have not discovered any New

Jersey statute conferring upon individual state legislators

the right to assert the State’s interest in defending the

constitutionality of its statutes. In the absence of such a

satutory right, Karcher cannot rely upon that interest to

justify his invocation of this Court’s jurisdiction.

Karcher may assert that he has standing because the

decisions below invalidating the moment of silence stat-

ute “nullified” his vote in favor of the statute. To the

extent such an interest is cognizable under Article UII,

we submit that it is an interest that may only be as-

serted by the New Jersey Legislature as a whole, acting

through its authorized representatives. In Diamond V.

Charles, supra, the Court observed that “ ‘the power to

create and enforce a legal code, both civil and criminal’

is one of the quintessential functions of a State. Be-

cause the State alone is entitled to create a legal code,

only the State has [a] * * * ‘direct stake’ * * * in

defending the standards embodied in that code” (slip

op. 10 (citations omitted)). The power to enact a law

belongs to the legislature as a whole, not to an individ-

ual legislator. Cf. United States v. Ballin, 144 U.S. 1,

7 (1892); Field v. Clark, 143 U.S. 649, 672 (1892). An

individual legislator therefore has no judicially cogniz-

able interest in defending the constitutionality of a stat-

ute. Cf. Bender v. Williamsport Area School Dist., slip

op. 9. This clear rule avoids enmeshing the judiciary in

intrusive and essentially political inquiries into whether

a particular member is faithfully advancing the consid-

ered views of the legislature. Cf. Goldwater v. Carter,

444 U.S. 996, 997-998 (1979) (Powell, J., concurring) .*

Finally, Karcher does not have standing to pursue this

appeal in his personal capacity. He did not seek leave

in the district court to intervene in that capacity and,

in any event, nothing in the record indicates that he

suffered any personal injury as a result of the decisions

below. Bender v. Williamsport Area School Dist., slip

op. 12-13; see also Diamond v. Charles, slip op. 12.

Because Karcher lacks standing to invoke this Court’s

appellate jurisdiction, the appeal should be dismissed

for want of jurisdiction.°®

8 Coleman V. Miller, 307 U.S. 433 (1939), is not to the contrary.

The Court held in that case that 20 state senators who had voted

against ratification of a constitutional amendment had standing to

challenge the legality of a tie-breaking vote in favor of ratification

that was cast by the lieutenant governor as presiding officer of

the state senate. The Court reasoned that “these senators have

a plain, direct and adequate interest in maintaining the effectiveness

of their votes” (307 U.S. at 438). First, the votes of the 20 senators

in Coleman were legally significant as a bloc, because they were

sufficient to prevent ratification absent the contested vote cast by

the lieutenant governor. Nothing in the record indicates that

Karcher’s vote in favor of the moment of silence law, standing

alone, carried such significance. Second, Coleman dealt with

standing to challenge alleged irregularities in the legislature’s

internal voting process, and did not address the issue of standing to

defend the constitutionality of a properly enacted statute. An

extension of the Coleman rationale to the present context would

enable any legislator to intervene in any case concerning the

validity or interpretation of a statute for which the legislator had

voted. That broad conclusion is inconsistent with Article III.

See McRae v. Mathews, 421 F. Supp. 533, 540 (E.D.N.Y. 1976),

rev'd on other grounds, 448 U.S. 297 (1980).

® Because we conclude that Karcher has no standing to appeal to

this Court, we do not address whether the two houses of the New

Jersey legislature and their representatives had standing to appeal

to the court of appeals. See Bender v. Williamsport Area School

Dist., supra. We note that the record does not appear to reflect

whether the legislature’s intervention was authorized by a resolu-

tion passed by the legislature. Cf. Pet. Br. at 27 n.20, Burke v.

Barnes, No. 85-781 (Jan. 14, 1987). (We have provided counsel

with copies of this brief.)

Il. THE NEW JERSEY STATUTE DOES NOT VIO-

LATE THE ESTABLISHMENT CLAUSE

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

of the Court indicated that a statute providing for a

moment of silence at the beginning of the school day,

to be used by each individual student as he ov she sees

fit, would not violate the Establishment Clause. 472 U.S.

at 62-63 & n.2 (Powell, J., concurring); id. at 70-76

(O’Connor, J., concurring in the judgment); id. at 85-

90 (Burger, C.J., dissenting) ; id. at 90-91 (White, J.,

dissenting) ; id. at 113-114 (Rehnquist, J., dissenting) ;

see also id. at 59 (distinguishing “[t]he legislative in-

tent to return prayer to the public schools” from “merely

protecting every student’s right to engage in voluntary

prayer during an appropriate moment of silence during

the schoolday’”’) ; Abington School Dist. v. Schempp, 374

U.S. 203, 281 (1963) (Brennan, J., concurring).

The Court in Jaffree (472 U.S. at 55-56) evaluated

an Establishment Clause challenge to a moment of si-

lence statute by applying the three-part test set forth

in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971)

(citations omitted): “First, the statute must have a

secular legislative purpose; second, its principal or pri-

mary effect must be one that neither advances nor in-

hibits religion; finally, the statute must not foster ‘an

excessive government entanglement with religion.’”’ The

New Jersey statute satisfies each of these requirements.

A. The New Jersey Statute Has A Valid Primary

Purpose

We take as our starting point in ascertaining legisla-

tive purpose the words chosen by the legislature when

it wrote the statute. On that basis we find two per-

missible purposes for the facially neutral New Jersey

moment of silence law.”®

10 We note that a statute is invalid under the purpose prong of

the Lemon test only if it has no permissible purpose. See Wallace v.

Jaffree, 472 U.S. at 56 (statute must be invalidated if “it is

entirely motivated by purpose to advance religion”) (footnote

1. The courts below were no doubt correct that the

purpose of a “moment of silence” statute has something

to do with prayer. And we shall argue that to the ex-

tent the statute is intended to accommodate some stu-

dents’ desire to pray, such accommodation of religion is,

by this Court’s teaching, a valid purpose (see pages 18-23,

infra). But silence also gives an occasion for reflection

upon what we are about and the larger purposes of our

efforts. It is the condition for recollection and contem-

plation. It is a mark of seriousness and solemnity." The

New Jersey statute’s requirement of a one-minute neriod

of silence, without any suggestion that the time be used

for prayer, by its terms provides this opportunity for

unrestricted and uninterrupted reflection.”

Since the purpose of this legislation was, most ob-

viously and most importantly, to institute by this facially

neutral statute a period for “quiet and private contem-

plation or introspection,” the legislation itself is the pri-

mary and best evidence of its purpose. Only the most

unusual circumstances should suffice to move the analy-

sis of purpose beyond that which plausibly appears from

the words which the legislature chose, in a direction

which contradicts the law’s seemingly permissible ob-

jective. Such an approach is consistent with this Court’s

omitted; emphasis added); see also id. at 64 (Poweli, J., concur-

ring) ; Lynch v. Donnelly, 465 U.S. 668, 680 (1984).

11 Plutarch, Concerning Talkativeness, in VI Plutarch’s Moralia

407 (W.C. Helmbold trans. 1927); Montaigne, Of Solitude, in The

Complete Works of Montaigne 177 (D. Frame trans. 1958); I H.D.

Thoreau, Journal 64-65, 67 (B. Torrey ed. 1906); S. Bok, Secrets

42 (1982).

12Qne possible, specific contribution—though certainly not the

only one—of a brief, silent interlude at the beginning of the school

day, is to provide a “boundary” between school and non-school

time, to emphasize the need for discipline and seriousness in the

school context. While appellants asserted such a justification for

the statute, the district court found that this was an “after-the-fact

rationalization and not the real purpose of the [statute]” (J.S. App.

87a). We agree with Judge Becker that this finding must be

overturned (id. at 56a-57a).

“reluctance to attribute unconstitutional motives to

States, particularly when a plausible secular purpose for

the State’s program may be discovered from the face of

the statute’ (Mueller v. Allen, 463 U.S. 388, 394-395

(1983) ).

Prayer plainly fits into this purpose to provide a

moment for serious reflection and recollection. Indeed

prayer is a special case, a focused variety of reflection

and meditation. When religious persons look into them-

selves for a moment to consider what they are about to

do and why, that reflection often takes the form of

prayer; they share their quietest and most serious

thoughts with the deity. Others may turn to different

sources of duty or dedication. Cf. United States V.

Seeger, 380 U.S. 163, 176 (1965). So when this Court

begins its sessions with a spoken invocation, it might—

to the same effect for some, but with broader meaning

for others as well—begin with a moment of silence, in

which we all reflect on our relation to the serious work

about to begin. The several legislatures enacting mo-

ment of silence statutes like the present one have quite

obviously considered it appropriate to preface the busi-

ness of learning with such a brief retreat into quiet and

reflection. For this reason we think this and other stat-

utes like it are at their core quite properly general, secu-

lar and therefore unobjectionable.”

13 Insofar as it embodies an accommodation of religious differ-

ences, the moment of silence also serves the wholesome purpose of

“fostering harmony and tolerance among the pupils” (Abington

School Dist. v. Schempp, 374 U.S. at 280 (Brennan, J., concurring) ).

Ours is a nation of great religious diversity. ‘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 individ-

ual 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

Hesitation in accepting this conclusion may derive

from two sources. First, prayer is often 2 formalized,

traditional and in some communities the dominant form

which reflection and meditation take. To the extent that

“we are a religious people” (Zorach v. Clauson, 343 U.S.

306, 313 (1952)), this is hardly surprising. Second, the

historical origin of a desire to have such a moment of

silence is undoubtedly religious in inspiration. That too,

given our history, is not surprising. It is instead one of

many examples in which purposes and values, religious

in their origin, have become generalized beyond those

particularistic origins to serve the pluralistic and secu-

lar society we have become. As Justice Frankfurter ob-

served in McGowan v. Maryland, 366 U.S. 420, 477

(1961) (footnotes omitted) (concurring opinion) :

whatever the nature of the propulsions underlying

state-enforced Sunday labor stoppage during the[]

centuries before the twentieth, it is clear that its

effect was the creation of an institution of Sunday

as a day apart. The origins of the institution were

religious, certainly, but through long-established

usage it had become a part of the life of the English

people. It was a day of rest not merely in a physical,

hygienic sense, but in the sense of a recurrent time

in the cycle of human activity when the rhythms of

existence changed, a day of particular associations

which came to have their own autonomous value for

life.

Thus, it surely is not a vice of moment of silence statutes

that their origin may be rooted in religion, or that some,

perhaps many, will put the occasion offered to specifically

religious purposes.

It is in this larger, more common-sense context that

the New Jersey statute’s purpose and effect of accommo-

dating religion must be placed. Moment-of-silence stat-

utes do accommodate the desire of some students to dedi-

cate themselves to God at the beginning of the school day

its dual nature—as an opportunity for exercise of faith among

those who believe, and a wholly secular occasion for those who do not.

as at the commencement of any serious enterprise. Si-

lence is a fostering condition for prayer, and other occa-

sions for it—in the hailway or cafeteria—may not be as

good. And, of course, this Court has made clear that

accommodation, even if it stands as a sole purpose and

effect of legislation, is not for that reason deprived of

the designation of secular legislation. See pages 18-23,

infra.

But the purpose to accommodate does not stand alone

in this legislation, any more than that purpose stands

alone in statutes exempting from taxation nonprofit edu-

cational, cultural and relic ous institutions. The gen-

eralized purpose of such statutes is to assist institutions

which foster the culture and values of the people, a

project in which churches at periods in history have

often played a dominant, perhaps a unique role. From

the churches’ point of view, as from the point of view

of some legislators, such statutes are certainly an ac-

commodation, but this should not preclude seeing them

in their larger, generalized context. Thus, though we be-

lieve this statute is valid as an accommodation of re-

ligion pure and simple, as the religious exemption at

issue in Corporation of the Presiding Bishop of The

Church of Jesus Christ of Latter Day Saints v. Amos,

No. 86-179, is an accommodation of religion pure and

simple, we suggest also that the Court not look at this

statute just as accommodation pure and simple, but also

in terms of the larger purpose and effect apparent from

its language.

2. Even if the statute is viewed solely as an accommo-

dation of students who wish to engage in silent, volun-

tary prayer, that purpose does not violate the Establish-

ment Clause. This Court has recognized that our na-

tional traditions encourage government to act in a man-

ner that enhances an individual’s ability to observe his

faith. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 677-

678 (1984) (citations omitted); Zorach v. Clauson, 343

U.S. 306, 313 (1952) ; McCo.inell, Accommodation of Re-

ligion, 1985 Sup. Ct. Rev. 1, 14-24. It has observed that

“the Constitution * * * affirmatively mandates accommo-

dation, not merely tolerance, of all religions, and forbids

hostility toward any.” Lynch v. Donnelly, 465 U.S. at

673; see also Wallace v. Jaffree, 472 U.S. at 81-83

(O’Connor, J., concurring in the judgment); Thomas v.

Review Board, 450 U.S. 707, 726-727 (1981) (Rehn-

quist, J., dissenting). “{T]he interrelationship of the

Religion Clauses has permitted government to take re-

ligion into account * * * to create without state involve-

ment an atmosphere in which voluntary religious exer-

cise may flourish.” McDaniel v. Paty, 435 U.S. 618,

638-639 (1978) (Brennan, J., concurring) (footnotes

omitted).

Applying this principle, the Court repeatedly has ap-

proved actions by government to ease burdens on volun-

tary religious observance caused t- facially neutral gov-

ernmental policies and practices.“ While it serves the

14 Some accommodations of religion are compelled by the Free

Exercise Clause. See, e.g., Hobbie v. Unemployment Appeals Comm’n,

No. 85-993 (Feb. 25, 1987); Thomas v. Review Board, 450 U.S. 707

(1981); Wisconsin v. Yoder, 406 U.S. 205 (1972): Sherbert v.

Verner, 374 U.S. 398 (1963). But the Court has made clear that

government’s authority to accommodate religion is not limited to

the measures required by the Free Exercise Clause: “(tlhe limits

of permissible state accommodation to religion are by no means

co-extensive with the noninterference mandated by the Free Exer-

cise Clause. To equate the two would be to deny a national heritage

with roots in the Revolution itself.” Walz v. Tax Comm'n, 397 U.S.

664, 673 (1970) ; see also Bowen v. Roy, No. 84-780 (June 11, 1986),

slip op. 18 & 2.19 (opinion of Burger, C.J.); Wallace v. Jaffree,

472 U.S. at 82 (O’Connor, J., concurring in the judgment); Marsh

v. Chambers, 463 U.S. 788, 812 (1983) (Brennan, J.. dissenting) ;

TWA V. Hardison, 432 U.S. 63, 90 (1977) (Marshall, J., dissenting) ;

Gillette v. United States, 401 U.S. 437, 453 (1971).

The Court has approved a variety of measures designed to enhance

individuals’ ability to conduct themselves in accordance with their

religious beliefs without first finding such measures to be compelled

by the Free Exercise Clause. See, e.g., Witters v. Washington

Dep't of Services for the Blind, No. 84-1070 (Jan. 26, 1986) (exten-

sion of aid under state vocational rehabilitation program to finance

petitioner’s theological training) ; Lynch v. Donnelly, supra (inclu-

sion of creche in municipal Christmas display) ; Marsh v. Chambers,

broader purpose discussed above, a moment of silence is

also an example of such a permissible accommodation of

religion. Through it the State—without itself sponsoring

or endorsing religion—provides an opportunity for

purely voluntary private devotion in the context of a

structured, compulsory state institution in which such

opportunities would otherwise be nonexistent or ex-

tremely limited.*®

The constitutionality of a statute providing for a

moment of silence is most powerfully supported by this

Court’s holding in Zorach v. Clauson, 343 U.S. 306

(1952). There, the Court upheld a released time pro-

gram that allowed students, with the permission of their

parents, to leave the school grounds and go to religious

centers for religious instruction. It observed that

“lw]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 traditions” (343 U.S. at 313-314). The

Court reasoned (id. at 313) that there are many cir-

cumstances in which public school students need special

provision to enable them to exercise their religion. Ex-

supra (opening of legislative sessions with prayer); Mueller Vv.

Allen, 463 U.S. 388 (1983) (tuition tax credits) ; St. Martin

Evangelical Lutheran Church v. South Jakota, 451 U.S. 772 (1981)

(exemption of religious school employees from unemployment

taxes); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (implied

exemption of church-operated school employees from the National

Labor Relations Act); Gillette v. United States, 401 U.S. 437

(1971) (exemption of religious observers from compulsory military

service) ; Walz v. Tax Comm’n, supra (property tax exemptions for

religious organizations); McGowan V. Maryland, 366 U.S. 420

(1961) (Sunday closing laws); Zorach v. Clauson, supra (off-

premises public school release time programs).

15It is particularly appropriate for the state to prov.de an

opportunity for voluntary religious exercise in circumstances such

as military service, prisons, or compulsory schooling, where the

state has itself created a regimented environment that might—in

the absence of governmental accommodation—tend to inhibit reli-

gious exercise. See Marsh v. Chambers, 463 U.S. 783, 812 (1983)

(Brennan, J., dissenting).

amples given were Roman Catholic mass during school

hours on a Holy Day of Obligation, Jewish observances

on Yom Kippur, and Protestant attendance at a family

baptismal ceremony. The need for regular religious in-

struction and devotion, the Court found, is not different.

Whether religious accommodation is made “occasionally

for a few students, regularly 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.).

A moment of silence is an equally appropriate response

to the religious needs of many students."* By providing

a brief opportunity for contemplative activity at the be-

ginning of the school day, the government merely creates

an opportunity that the students may use, if they wish,

for prayer—or for meditation or other quiet contempla-

tion 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 students whose views

may be different. In general, others need not even know

what a person chooses to do. Even more clearly than was

true in Zorach, then, the moment of silence puts religion

on a wholly voluntary basis. It simply expands the free-

dom available to individuals to decide for themselves

whether and how to engage in religious practice, without

inducing or coercing that choice.

'6It might be argued that the moment of silence is more like

the on-premises released time program invalidated in Illinois ex rel.

McCollum v. Board of Education, 333 U.S. 203 (1948). than the

off-premises program approved in Zorach, simply because the oppor-

tunity for religious practice here takes place 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 invoked to promote prayer.

It could be asserted that a statute providing for a

moment of silence is not necessary to accommodate the

religious needs of school children because, even in the

absence of such a statute, a student may engage in silent

prayer. While this may be true, it does not follow that

the provision for a moment of silence does not “lift[]

a government-imposed burden on the free exercise of

religion” (Jaffree, 472 U.S. at 83 (O’Connor, J., con-

curring in the judgment)). Though it may be possible

to meditate or pray during the hustle-bustle of lunch,

or on the playground, or during a lull in classroom ac-

tivity, surely all contemplative activity, including prayer,

is enhanced if outside distractions are momentarily

stilled. Many people may be dissuaded, by those distrac-

tions or by potential embarrassment, from undertaking

to pray or meditate. If all are silent, then all are free

to pray or meditate as they choose, without having to

appear “different.” Cf. Abington School Dist. v. Schempp,

374 U.S. at 208 n.3.

Moreover, necessity is not the standard. 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 instruction, without benefit of the

released time program. The employees of church-oper-

ated schools in St. Martin Evangelical Lutheran Church

v. South Dakota, 451 U.S. 772 (1981), could probably

afford to pay unemployment taxes (cf. United States Vv.

Lee, supra). There is no indication that parents in

Mueller v. Allen, supra, could not send their children to

religious schools without tax deductions. The need for

a particular religious accommodation (where not re-

quired by the Free Exercise Clause) is primarily a ques-

tion of public policy, for legislatures to assess. See

United States v. Lee, 455 U.S. 252, 259-261 (1982) ;

Zorach v. Clauson, 343 U.S. at 310, 314. Approximately

half of the states have judged it appropriate_to accom-

modate the religious needs of schoolchildren by providing

an opportunity to pray during a formal moment of silence

(see Jaffree, 472 U.S. at 70-71 & n.1 (O’Connor, J., con-

curring in the judgment)). Their reasons for doing so

are substantial, and their action is consistent with the

purpose of the Religion Clauses—to facilitate the free

and voluntary exercise of religion, not to restrict it to

an inhospitable and grudging minimum.""

3. Even accepting the om findings of the courts

below, the New Jersey statute Would be found to have a

permissible purpose. The court of appeals, reviewing the

district court’s finding of a “religious” purpose “to man-

date a period * * * when all students would have an op-

portunity to engage in prayer” (J.S. App. 86a) under

the clearly erroneous standard," stated that it accepted

the district court’s finding that the legislature’s purpose

was religious “to the extent of requiring school districts

to accommodate those students desiring the opportunity

17 At one point in its opinion in Jaffree, the Court stated that

the moment of silence statute challenged in that case could not be

justified as an accommodation of religion (see 472 U.S. at 57-58

n.45). That statement did not refer to moment of silence statutes

generally, but to the peculiar characteristics of the statute at

issue in Jaffree. As the Court noted, a previously-enacted Alabama

etatute protected “every student’s right to engage in voluntary

prayer during an appropriate moment of silence during the school-

day” (id. at 59). Because there was no secular purpose that was

not “fully served by” the prior statute, the subsequently-enacted

statute could not be upheld as an accommodation to religion (ibid.).

18 The court below divided with respect to the standard of review

to be applied to the district court’s findings. Compare J.S. App.

27a-29a (applying clearly erroneous standard) with id. at 44a-47a

(Becker, J., dissenting) (concluding that plenary review is appro-

priate). For the reasons that we discuss in the text below, we do

not believe that the standard of review is dispositive in this case.

We note, however, that regardless of the standard of review

applicable to the district court’s factual determinations, the district

court’s characterization of a statute’s purpose as “religious” or

“secular” is a legal conclusion subject to plenary review on appeal.

In addition, the factors favoring de novo review identified by the -

Court in Bose Corp. v. Consumers Union, 466 U.S. 485 (1984), and

Miller v. Fenton, No. 84-5786 (Dec. 3, 1985), would appear to weigh

in favor of de novo review of factual findings in the Establishment

Clause context as well. See Jaffree, 472 U.S. at 76 (O’Connor, J.,

concurring in the judgment).

to engage in prayer at some point during the school day”

(id. at 27a-28a). The court of appeals further stated

that “[gliven the language of the New Jersey statute

which * * * is permissive for students, and the record

evidence, we do not believe a finding that the religious

purpose was to encourage prayer over other alternatives,

rather than to accommodate those wishing to pray, would

be sustainable” (id. at 28a-29a).

We think the courts below failed to recognize the

critical distinction between legislation removing obstacles

to wholly voluntary religious observance, which is en-

tirely permissible (see pages 18-23, supra), and that

which endorses or promotes the practice of religion in

general or of one religion in particular, which is im-

permissible (see Jaffree, 472 U.S. at 59-61). The dis-

trict court’s finding of a purpose to provide an “oppor-

tunity” for prayer simply demonstrates that the New

Jersey statute falls within the former, permissible cate-

gory.’

19 Jt is instructive to compare the New Jersey statute to the

Alabama statute at issue in Jaffree. First, Alabama had enacted

a moment of silence statute prior to the adoption of the statute at

issue in Jaffree. The second statute could not be justified as an

accommodation of religion or as an educational measure because

th6se purposes already were fully accomplished by the existing

moment of silence statute. See 472 U.S. at 58-59; id. at 65 (Powell,

J., concurring); id. at 77, 83-84 (O’Connor, J., concurring in the

judgment). Because New Jersey had no pre-existing moment of

silence statute, the statute challenged in this case is supported by

these secular purposes. Second, the Alabama statute’s legislative

history indicated that the purpose of the statute was “ ‘to return

voluntary prayer’ to the public schools” (id. at 57 (footnote

omitted)). Here, by contrast, the district court found that the

legislative history of the New Jersey statute evidences an intent to

accomplish the secular purpose of accommodating religion (see

J.5. App. 86a).

We note in addition that the Alabama statute expressly identified

“voluntary prayer” as an activity permissible during the moment

of silence while the New Jersey statute does not. We do not

believe that the listing of prayer as a permissible activity auto-

matically invalidates a statute under the Establishment Clause.

As Justice O’Connor has observed, “|e/ven if a statute specifies

4. More fundamentally, we disagree profoundly with

the approach adopted by the district court and approved

by the court of appeals, in going behind the admittedly

neutral face of the statute (J.S. App. 26a) to find legis-

lative purpose in a combination of public sentiment and

the selected comments of a small handful of legislators.

In our view, when a plausible * secular purpose is ap-

parent from the face of the statute or even from its

official legislative history, there is a strong presumption

in favor of accepting it, and that presumption generally

should not be subject to impeachment by evidence of the

specific motives of certain legislators. See Jaffree, 472

U.S. at 74-75 (O’Connor, J., concurring in the judg-

ment) ; McGowan v. Maryland, 366 U.S. 420, 466 (1961)

(opinion of Frankfurter, J.) (“[t]o ask what interest,

what objective, legislation serves, of course, is not to

psychoanalyze its legislators, but to examine the neces-

sary effects of what they have enacted”). “Inquiries

into congressional motives or purposes are a hazardous

matter. * * * What motivates one legislator to make a

speech about a statute is not necessarily what motivates

scores of others to enact it, and the stakes are sufficiently

high for {the Court] to eschew guesswork.” United

States Vv. O’Brien, 391 U.S. 367, 383-384 (1968) (foot-

note omitted); see also Everson v. Board of Education,

330 U.S. 1, 6 (1947). Only in extraordinary circum-

stances should such evidence of motivation be found suf-

ficient to invalidate a permissible purpose established

through more conventional means."

that a student may choose to pray silently during a quiet moment,

the State has not thereby encouraged prayer over other specified

alternatives” (472 U.S. at 73 (concurring in the judgment) ).

20 We emphasize that the purpose must be “plausible.” A secular

purpose that is clear on the face of the statute will not satisfy

the Lemon test if it is a “sham.” See Jaffree, 472 U.S. at 75 (O’Con-

nor, J., concurring in the judgment); id. at 64 (Powell, J., con-

curring); Stone Vv. Graham, 449 U.S. 339 (1980) (per curiam).

21 The Court has recognized that- “judicial inquiries into legisla-

tive or executive motivation represent a substantial intrusion into

Here, absent any finding that the facially neutral stat-

ute was applied by teachers in a way to encourage volun-

tary prayer (J.S. App. 26a), the district court relied

substantially on the unrecorded comments * of Assembly-

man Zangari, the principal sponsor of the bill (id. at

68a-7la). Zangari’s cited statements suggest that he

personally favored prayer in schools and had previously

introduced two unsuccessful bills directed explicitly at

advancing that objective. On this evidence, as well as

very limited references to the views of a handful of other

legislators,”* the court concluded that “(t]he driving force

behind the Bill came from those who deeply and sincerely

believed that an opportunity for prayer in public schools

at the beginning of each day should be mandated” (id.

at 87a).

The court also made note of prior efforts by others to

return prayer to the New Jersey schools (J.S. App. 67a),

and to the opposition to the present legislation which

primarily derived from hostility to any sort of prayer in

the workings of other branches of government. Placing a decision-

maker on the stand is therefore ‘usually to be avoided’” (Village

of Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252, 268 n.18 (1977) ).

This is not to say that a statute with a facially valid purpose

may never be found to violate the Establishment Clause. But it

will be the rare case in which evidence of the motivations of

individual legislators so extensively documents the intentions of the

legislators who voted for a bill that these individual motivations

may be said to represent the purpose of the legislature as a whole.

Cf. Hunter v. Underwood, 471 U.S. 222 (1985); Epperson V.

Arkansas, 393 U.S. 97, 108 (1968). A party seeking to overturn

a statute on this basis thus bears an extremely heavy burden.

22 Since the New Jersey legislature does not preserve an official

record of its hearings and debates, the court relied on the testimony

of witnesses who attended the legislative committee meetings or

otherwise heard comments which the court deemed relevant (J.S.

App. 68a & n.2).

23 The evidence cited by the court refers by name to three State

senators and one assemblyman (J.S. App. 70a). The very limited

comments attributed to them do not include any endorsement of

officially sanctioned prayer in school.

school—whether silent and voluntary or otherwise (id. at

71la-82a). And it rejected as “an after-the-fact rationali-

zation” (id. at 87a) the assertion that the bill had a

wholly secular purpose to provide, by connoting serious-

ness and solemnity, a period of transition from outside

life to the work of the school. Its conclusion in this re-

gard rested on testimony which it found to demonstrate

“beyond any doubt whatsoever” that one minute of

silence as a transitional device “has little educational

value” (id. at 84a).

The fact that a bill’s sponsor might have preferred

legislation more explicitly favorable to prayer in school,

but was unable to effect its passage, does not at all sug-

gest that the neutral statute that was adopted shares

the same objectionable purpose. Nur can the plain intent

of a statute, borne out by the neutral manner of its ap-

plication, be undermined by the fact_that those opposing

enactment focused on the undeniable aspect of the stat-

ute’s providing an opportunity for religious observance.

Their opposition on this ground does not alter the stat-

ute’s provision of a genuine opportunity for reflection by

all students, to be put to whatever secular or religious

ends they deem appropriate. Cf. Selective Service Sys-

tem v. Minnesota Public Interest Research Group, 468

U.S. 841, 855-856 n.15 (1984) (statements made by op-

ponents of legislation are entitled to “little, if any

weight” in construing statute). Nor does the district

court’s pedagogical conclusion as to the uselessness of a

silent interlude between outside life and school time

alter the fact that the New Jersey legislature, for rea-

sons known only to each legislator who cast a vote, plainly

reached a contrary conclusion.

This Court’s decision in Jaffree is fully consistent with

our position in this case. There, the Court’s determina-

tion regarding the statute’s purpose rested primarily on

legislative history, the text of the statute, and the fact

that “(t]he State did not present evidence of any secular

purpose.” 472 U.S. at 57 (emphasis in original).

24The Court also relied upon the testimony of the sponsor of

the bill that became the moment of silence statute, but that testi-

Jaffree thus turned in large part upon the absence of

any plausible secular purpose, either on the face of the

statute or otherwise. Jd. at 59-60; id. at 66 (Powell, J.,

concurring) ; id. at 77-78 (O’Connor, J., concurring in

the judgment). The Court did not indicate that inquiry

into the motivations of individual legislators would be

appropriate if the statute itself had evidenced a permis-

sible purpose.

B. The Statute Does Not Have The Impermissible

Effect Of Advancing Or Inhibiting Religion, Or Of

Creating An Entanglement Between Church And

State

The New Jersey statute, which provides for a moment

of silence without prescribing how a studenv should use

that moment, does not have any effect that this Court has

identified as impermissible under the Establishment

Clause. It is neutral among religions and therefore does

not violate the Establishment Clause’s command that “one

religious denomination [not] be officially preferred over

another.” Larson v. Valente, 456 U.S. 228, 244 (1982) ;

see also Gillette v. United States, 401 U.S. 487, 449

(1971); Zorach v. Clauson, 343 U.S. at 314. All major

religious faiths recognize silent prayer as an acceptable

form of prayer. C. Whittier, Silent Prayer and Medita-

tion in World Religions 7 (Cong. Res. Serv. Ma, 27,

1982). Whatever 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 * * * andhostility toward none” (Lynch v. Don-

nelly, 465 U.S. at 673) would be difficult to find.*®

mony simply reiterated that legislator’s virtually identical state-

ments in the legislative history.

25 The district court found as a fact that the moment of silence

instituted under New Jersey law is unsuitable for prayer by persons

of some religious faiths (J.S. App. 88a), but provided no examples

of religions that do not consider silent prayer as at least one

acceptable mode of religious expression. Even assuming that such

sects exist, the court’s further conclusion that the moment of

silence “prevents others from engaging in their form of prayer”

(id. at 96a) is not correct. Adherents of such faiths, like those of

Nor does the statute promote a “symbolic union of

church and state,” because it does not “convey[] a mes-

sage of government endorsement or disapproval of re-

ligion” (School District v. Ball, No. 83-990 (July 1,

1985), slip op. 16). As Justice O’Connor has observed,

“a moment of silence is not inherently religious. Si-

lence, unlike prayer or Bible reading, need not be asso-

ciated with a religious exercise.” Jaffree, 472 U.S. at

72 (concurring opinion) ; see also id. at 62 n.2 (Powell,

J., concurring). Indeed, moments of silence are wholly

neutral as between religious and nonreligious needs. Si-

lence makes possible not only religious but 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 any-

thing from God to homework to the girl or boy next

door. Cf. Jaffree, 472 U.S. at 66 n.9 (Powell, J., con-

curring) (“[{g]liven the types of subjects youthful minds

are primarily concerned with, it is unlikely that many

children would use a simple ‘moment of silence’ as a time

for religious prayer. There are too many other subjects

on the mind of the typical child”). Moment of silence

statutes thus do not “confer any imprimatur of state

approval on religious sects or practices” (Widmar v.

Vincent, 454 U.S. 263, 274 (1981) ).2*

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. As the court of appeals stated in rejecting

the district court’s determination, “[t]he [moment of silence |

statute simply does not address the problem of accommodating

the beliefs of those whose prayer must be oral or otherwise self

expressive. * * * It is * * * the compulsory school attendance

law, not [the moment of silence statute] that ‘prevents other per-

sons from engaging in their kind of prayer’” (id. at 19a).

26 The fact that some students may use the moment of silence

for religious contemplation does not transform a neutral statute

into government endorsement of religion. “By mandating a moment

of silence, a State does not necessarily endorse any activity that

might occur during the silent period.” Jaffree, 472 U.S. at 73

(O’Connor, J., concurring in the judgment) ; cf. Widmar v. Vincent,

454 U.S. 263, 272 n.10 (1981) (“by creating a forum the [State]

And this statute certainly does not infringe an indivdual

student’s constitutional right “to select any religious faith

or none at all” free from interference by government in

that choice (Jaffree, 472 U.S. at 53).*7 “During a moment

of silence, a student who objects to prayer is left to his or

her own thoughts, and is not compelled to listen to the

prayers or thoughts of others.” Jd. at 72 (O’Connor, J.,

concurring in the judgment) ; id. at 62-63 & n.2, 66 n.9

(Powell, J., concurring) ; see also page 29, supra.

Finally, a ~ment of silence occasions no intrusion

whatever by .i» .tate into church affairs or vice versa

(cf. Lemon v. Kurtzman, 403 U.S. at 614), and thus

entails no interference with “the essential autonomy of

religious life’ (Marsh v. Chambers, 463 U.S. at 803

(Brennan, J., dissenting) ). There is no interaction be-

tween government and religious authorities and no need

for inquiry into religious issues. Compare Zorach V.

Clauson, 343 U.S. 308 (Court found no improper en-

tanglement between government and religion even though

school districts decided what “religious centers” would

qualify for the released time programs and school offi-

cials reviewed weekly attendance reports from churches).

does not thereby endorse or promote any of the particular ideas

aired there”); Zorach v. Clauson, 343 U.S. at 311. All that the

State has “endorsed” through a moment of silence is the view that

religious observances by those who choose to engage in them should,

where possible, be accommodated by government. Cf. Wallace Vv.

Jaffree, 472 U.S. at 83 (O’Connor, J., concurring in the judgment)

(“film assessing the effect of [a statute that lifts a government-

imposed burden upon the free exercise of religion]—that is, in

determining whether the statute conveys [to an objective observer |

the message of endorsement of religion or a particular religious

belief—courts should assume that the ‘objective observer’ is ac-

quainted with the Free Exercise Clause and the values it pro-

motes”).

27 The Court’s decisions barring the practice of spoken prayer in

school rest in part on the observation that “[w]hen the power,

prestige and financial support of government is placed behind a

particular religious belief, the indirect coercive pressure upon reli-

gious minorities to conform to the prevailing officially approved

religion is plain.” Engel v. Vitale, 370 U.S. 421, 431 (1962); see

also Abingdon School Dist. v. Schempp, 374 U.S. at 223-224.

CONCLUSION

The appeal should be dismissed for want of juris-

diction. If the Court reaches the merits, the judgment

of the court of appeals should be revers<d.

Respectfully. submitted.