Amicus Curiae Brief — Karcher v. May

No. 85-1551

o, D

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

g.

S

ALAN J. KARCHER, et al.,

Appellants,

RONALD and CATHERINE SOKALSK!

and TWYLLA FLANDERS,

Intervenors-A ppellants

Ve

JEFFREY May, et a/.,

Appellees.

On Appeal from the United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO INTERVENE AS APPELLANTS

AND BRIEF OF INTERVENORS-APPELLANTS

RONALD AND CATHERINE SOKALSKI

AND TWYLLA FLANDERS

MICHAEL J. WOODRUFF REx E. LEE *

SAMUEL E. ERICSSON CARTER G. PHILLIPS

HEIDI S. HAGERMAN MARK D. HOPSON

MICHAEL A. PAULSEN SIDLEY & AUSTIN

c/0 CENTER FOR LAW & 1722 Eye Street, N.W.

RELIGIOUS FREEDOM Washington, D.C. 20006

Post Office Box 1492 (202) 429-4000

Merrifield, VA 22116

(703) 560-7314

RICHARD G. WILKINS

HOLME, ROBERTS & OWEN

Su-te 900

outh Main Street

Sait Lake City, Utah 84144

(801) 521-5800

Counsel for

Intervenors-A ppellants

Ronald and Catherine Sokalski

and Twylla Flanders

* Counsel of Record

LLL OLD LL OLE,

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

Cases Page

Beth Israel Hospital v. NLRB, 437 U.S. 483

(1GTB) <n naaaavcecnerencereceonseveccoscceceenesensenssnsssenscnnenencessnenss Vv

Carey v. Population Services International, 431

fe Ff). , vii

Dimond V. District of Columbia, 792 F.2d 179 (D.C.

SS a nero viii

Donaldson v. United States, 400 U.S. 517 (1971)... vi

Eastern-Central Motor Carriers Assoc. v. United

States, 321 U.S. 194 (1944) .........-------cse-eeeseeneene- Vv

McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th

A ee nee viii

Meyer v. Nebraska, 262 U.S. 390 (1923) -.........-..---- vii

Mullaney v. Anderson, 342 U.S. 415 (1952) -..........-. Vv

Natural Resources Defense Council v. Costle, 561

F.2d 904 (D.C. Cir. 1977) ........--..---.-.------------2022---- vii, viii

Pierce v. Society of Sisters, 268 U.S. 510 (1925) -... vii

Trbovich v. United Mine Workers of America, 404

8 Gp) | en viii

United Airlines, Inc. v. McDonald, 482 U.S. 385

| Te oe vi

United States v. Terminal Railroad Assoc., 236

I _—————————— Vv

Statutes

GTB. © DGD ..n-nnervn-nneeeeanneensnccsceccenessenseceneesessescences viii

SS 3 een Vv

en Te ___.. sssneanntdnanidantisbvenancentanseedstinante Vv

Fed. R. Civ. P. 24(a) = DD RS TT TNT viii

Fed. R. Civ. P. 24(b) .. ee ee oe vi

N.J.S.A. 18A: 36-4 (West 1982) . Ree a EN A iv

Other Authorities

R. Stern, E. Gressman and S. Shapiro, Supreme

Court Practice (6th ed. 1986) ......... a eiceel arenas Vv

1C C. Wright, A. Miller and M. Kane, Federal

Practice and Procedure § 1908 (1986) ....... vi, vii, viii

(i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No, 85-1551

a

ALAN J. KARCHER, et al.,

Appellants,

RONALD and CATHERINE SOKALSKI

and TWYLLA FLANDERS,

Intervenors-A ppellants

V.

JEFFREY MAY, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Third Circuit

——

MOTION FOR LEAVE TO INTERVENE OF

RONALD AND CATHERINE SOKALSKI

AND TWYLLA FLANDERS

Ronald and Catherine Sokalski, as natural parents and

legal guardians of a minor child in the New Jersey public

(iii)

iv

school system, and Twylla Flanders, a teacher in the New

Jersey public school system, move on behalf of themselves

and others similarly situated for leave to intervene in

this appeal to support the New Jersey moment of silence

statute, N.J.S.A. 18A: 36-4 (“Section 36-4”).

1. The Sokalskis reside in Little Falls, New Jersey,

and their daughter, Lara, attends the fourth grade at

the Little Falls Elementary School No. 1, a public school

to which the statute is applicable. App., infra, la, 3a.

The Sokalskis believe that a daily moment of silence

at the outset of the school day, which would allow their

daughter to meditate or pray or just relax, would be a

positive and non-trivial element of their daughter’s edu-

cation. App., infra, 2a, 4a. Moreover, the Sokalskis be-

lieve that the New Jersey statute, which will permit their

daughter’s teachers to begin each day with a moment of

silence, does not promote or establish religious practices

in the schools. App., infra, 2a, 4a. On the contrary, the

Sokalskis believe that the statute furthers individual

liberty in a way that is religiously neutral. But more

important, they are convinced that a moment of silence

has a beneficial effect on the educational environment in

which their daughter spends a considerable portion of her

day. App., infra, 2a, 4a.

Twylla Flanders is a public school teacher at the

Wandeijl Elementary School in Saddle River, New Jersey.

App., infra, 5a. Mrs. Flanders believes that it is ap-

propriate and educationally beneficial to begin the school

day with a moment of silence. App., infra, 5a-6a. Al-

though Mrs. Flanders in the past has used a moment of

silence to open the school day, and has found it bene-

ficial to the maintenance of 2 classroom atmosphere con-

ducive to learning, she does not currently do so. App.,

1 For the Court’s convenience, intervenors have printed their affi-

davits as an appendix to this filing. An original and copies of the

affidavits also have been filed with the Clerk of the Court.

v

infra, 6a. In the absence of a valid state law author-

izing her to use a moment of silence in the public schools,

Mrs. Flanders is constrained from conducting a moment

of silence by the threat of civil liability against herself

and her school. App., infra, 6a.

Where the “interests of justice” so require, this Court

clearly has authority to permit a party to intervene in

the first instance in this Court. R. Stern, E. Gressman

and S. Shapiro, Supreme Court Practice at 839-40 (6th

ed., 1986); Fed. R. Civ. P. 24; cf. Fed. R. Civ. P. 21.

Moreover, the Court has not infrequently permitted such

intervention in the past. See, e.g., Beth Israel Hospital

v. NLRB, 437 U.S. 483 (1978); Eastern-Central Motor

Carriers Assoc. Vv. United States, 321 U.S. 194, 198

(1944) : United States v. Teriminal Railroad Assoc., 236

U.S. 194, 196 (1915). There is a compelling justification

for intervention in this case because developments since

the decision of the court of appeals have caused the issue

of appellants’ standing in this case to be placed in doubt.

See 55 U.S.L.W. 3512 (January 27, 1987).

In an analogous situation in Mullaney V. Anderson,

842 U.S. 415, 416-17 (1952), this Court granted a mo-

tion to add three new party plaintiffs to a case pending

before the Court where the defendant had challenged, for

the first time, the standing of the original plaintiffs.

Relying on the joinder provisions in Rule 21 of the Fed-

eral Rules of Civil Procedure, the Court permitted the

addition of new parties to “remove the matter [7.e., the

standing issue] from controversy” after finding that the

addition “can in no wise embarrass the defendant” and

would avoid the “needless waste” that would result from

dismissing the case on the standing issue.

In the present case, appellants’ standing became an

issue only after the last election in New Jersey, which ~~

occurred after the court of appeals issued its opinion.

See Letter from William W. Robertson, counsel for ap-

pellants to Joseph F. Spaniol, Jr., Clerk of the Supreme

Court of the United States (May 6, 1986). If the Court

Yr

vi

were to hold now that appellants no longer have standing *

and if the Court does not grant movants’ request to inter-

vene, then the decision below, which movants believe is

erroneous, will be allowed to stand, and a state’s statute

beneficial to movants will become a nullity. In such a

case, the injury to movants’ interests is obvious. Movants

are clearly the intended beneficiaries of the New Jersey

statute and they will lose completely the benefit of that

statute unless they are permitted now to assert their in-

terest and defend the statute’s constitutionality. Moreover,

an issue of national significance will escape review by this

Court because of a fortuitous coincidence of pleading and

a change in the named appellants’ legislative status. Ac-

cordingly, the Court should grant movants’ leave to in-

tervene to defend the statute.

2. Movants clearly meet the requirements of the three-

part test for intervention of right in the federal courts.*

See Donaldson v. United States, 400 U.S. 517, 528-29

(1971): see also 7C C. Wright, A. Miller and M. Kane,

Federal Practice and Procedure, § 1908 at 262 (1986).

First, they have a “significantly protectable interest” in

the subject matter of the litigation. Donaldson, supra,

400 U.S. at 531. In this case, New Jersey has attempted

2 Appellanis have informed movants that appellants will argue

that they still have standing in this case. Movants, by seeking

to intervene in order to “remove this matter from controversy,” do

not intend to cast any doubt on the validity of appellants’ argument

on this issue. Appellants, whose ultimate interest is to have the

constitutionality of the State’s statute resolved by this Court, have

authorized us to inform the Court that they support this motion.

Moreover, appellants have authorized us to inform the Court that

they will consent to divided argument if the motion is granted.

8 This same test is applicable while a case is pending in the dis-

trict court and following entry of judgment. See United Airlines,

Inc. ¥. McDonald, 432 U.S. 385, 387 and 395 n.16 (1977). If the

court concludes that movants do not meet the requirements for

intervention of right, we respectfully request that this court exer-

cise its discretion to grant permissive intervention. See Fed. R.

Civ. P. 24(b).

vii

to accommodate the religious preferences of some fami-

lies, such as the Sokalskis, without interfering with the

religious liberty of others, such as appellees. The Sckalskis

have a significant stake in protecting that state-conferred

right. Moreover, the Sokalskis obviously have a signifi-

cant interest in the education and upbringing of their

daughter, an interest that is directly affected by the New

Jersey moment of silence statute. Indeed, their interest

in their child’s education and development is an interest

this Court has recognized as “fundamental.” See Pierce

v. Society of Sisters, 268 U.S. 510, 535 (1925) ; Meyer V.

Nebraska, 262 U.S. 390, 399 (1923); Carey Vv. Popula-

tion Services International, 431 U.S. 678, 685 (1977).

Similarly, movant Flanders, like many other teachers in

New Jersey, has used the moment of silence as part of

her teaching method and for pedagogical reasons would

continue to do so but for the doubt created by the deci-

sion of the court below, holding the New Jersey statute

unconstitutional, and the risk of a civil rights suit by

persons like the appellees who believe any moment of

silence unconstitutionally advances religion. Accordingly,

movants’ interest in this case is sufficient to support

intervention.

Movants also meet the second requirement for inter-

vention: the outcome of this litigation may impair or

impede their expressed interest. See Wright, Miller and

Kane, supra at 262, 305-312. As noted, movants strongly

support the statute at issue in this case; as a “practical”

matter,‘ this is movants’ only opportunity to argue in

support of the statute. The Sokalskis’ state-conferred in-

terest in having their religious preferences accommodated

will be destroyed if this appeal is dismissed and the court

of appeals’ judgment of unconstitutionality left unre-

viewed. In addition, without the protection of a state law

4 Natural Resources Defense Council v. Costle, 561 F.2d 904, 909

(D.C. Cir. 1977) (courts should look to “practical consequences” of

denying intervention in determining whether outcome of litigation

may impair or impede intervenors’ interest).

viii

providing for a moment of silence, few public school

teachers in New Jersey, such as Mrs. Flanders, would be

willing to risk potential liability under 42 U.S.C. § 1983

by beginning each dav with a moment of silence.

Under the final element of the three-part test, mov-

ants should be allowed to intervene because they meet

the “minimal” burden of showing that “representation

of [their] interest ‘may be’ inadequate.” See Trbovich

vy. United Mine Workers of America, 404 U.S. 528, 538

n.10 (1972) (emphasis added). If this Court concludes

that the present appellants lack standing, then the rep-

resentation of movants’ interests clearly will be inade-

quate.°

The final consideration is whether the motion to inter-

vene is “timely.” See Fed. R. Civ. P. 24(a). In deter-

mining whether intervention is appropriate, the passage

of time is but one factor to be considered; the most im-

portant consideration is whether the delay has preju-

diced the other parties. Wright, Miller and Kane, supra

at 435: see also McDonald v. E.J. Lavino Co., 430 F.2d

1065, 1073 (5th Cir. 1970). Appellees cannot claim any

prejudice from the presence of intervenors in this litiga-

tion. This suit obviously was filed as a test case raising

the fundamentally legal issue of the constitutionality of

the New Jersey moment of silence statute and seeking to

enjoin the moment of silence statewide. It was brought

by many of the appellees in this Court on behalf of minor

children in the public schools. The Sokalskis merely seek

the same opportunity on behalf of their daughter to pre-

5 Obviously, the state appellants and movants will both argue that

the statute in question is constitutional. but that is the extent of

the identity of their interest. Appellants assert an institutional in-

terest: movants have a direct and personal interest in the state

statute. Courts often have noted that the government and private

litigants do not share an identity of interest. See Dimond Vv. District

of Columbia, 792 F.2d 179, 192-193 (D.C. Cir. 1986); NRDC V.

Costle, 561 F.2d 904, 912 (D.C. Cir. 1977).

ix

sent their legal arguments in favor of the constitution-

ality of the statute and to assure that this Court has a

clear Article III basis for rendering a decision on this

issue.*

Respectfully submitted,

MICHAEL J. WOODRUFF REX E. LEE *

SAMUEL E. ERICSSON CARTER G. PHILLIPS

Hetrp1 S. HAGERMAN MARK D. HOPSON

MICHAEL A. PAULSEN SIDLEY & AUSTIN

c/oO CENTER FOR LAW & 1722 Eye Street, N.W.

RELIGIOUS FREEDOM Washington, D.C. 20006

Pest Office Box 1492 (202) 429-4000

Merrifield, VA 22116

(703) 560-7314

RICHARD G. WILKINS

HOLME, ROBERTS & OWEN

Suite 900

50 South Main Street

Salt Lake City, Utah 84144

(801) 521-5800

Counsel for

Intervenors-Appellants

Ronald and Catherine Sokalski

and Twylla Flanders

* Counsel of Record

6 It is clear that movants could file a brief as amici curiae, and,

if they did, appellees would be required to answer a 30 page brief.

The only possible prejudice from granting intervention at this time

would occur if movants filed a brief in excess of the 50 page limit

for a brief as amici curiae. To avoid imposing any additional bur-

den upon appellees, intervenors have limited their brief on the

merits to 30 pages.

QUESTION PRESENTED

Whether a facially neutral statute permitting public

school students to observe a one minute period of silence

for quiet and private contemplation or introspection vio-

lates the Establishment Clause because one of its pur-

poses is to permit prayer by those who want to pray.

TABLE OF CONTENTS

QUESTION PRESENTED) ...........----------------------e--0-

TABLE OF AUTHORITIES .............-------------------------000+

STATUS OF INTERVENORS-APPELLANTS ...........

OPINIONS BELOW ...........----------e-----eeeeeeeenneneeeenennenennsees

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ..............-.-----------------+ lila aseaatales

STATEMENT .........--..----------ee---ceeccccecessnecccccsnensneneneessnsenenees

INTRODUCTION AND SUMMARY OF ARGUMENT.

ARGUMENT ..........--.--------------e0e+++ insinanlinennaiapiniiaaads ;

THE NEW_JERSEY MOMENT OF SILENCE

STATUTE, WHICH “PERMIT[S] STUDENTS

TO OBSERVE A 1 MINUTE PERIOD OF SI-

LENCE” FOR “PRIVATE CONTEMPLATION OR

INTROSPECTION” DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE OF THE FIRST

AMENDMENT

I. The New Jersey Moment Of Silence Statute

Has A Constitutionally Permissible Purpose And

Does Not Convey Any Message Of Endorsement

Or Disapproval Of Religion ............... caine hia .

II. The New Jersey Moment Of Silence Statute

“Merely Protect[s] Every Student’s Right To

Engage In Voluntary Prayer During An Appro-

priate Moment Of Silence During The School

Day” And Is A Constitutionally Permissible Ac-

commodation Of Religion

CONCLUSION ........--.....--------+-+- ieee eiininiannnaduiiioen

APPENDIX .......---------------------ee-ecceesaeccnecnneesneesaneennenesereneeanes

10

14

14

14

xiv

TABLE OF AUTHORITIES

Cases: Page

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

ff | a as + 2 F

Board of Education v. Allen, 392 U.S. 256 (1968) 14

Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485 (1984) ........-----------------eeeeeeeee eens 16

Engel v. Vitale, 370 U.S. 421 (1962) ...........-----. , 15

Epperson Vv. Arkansas, 393 U.S. 97 (1968) ....... 15

Everson vy. Board of Education, 330 US. 1

Gaines v. Anderson, 421 F. Supp. 337 (D. Mass.

EPSPS OT nceassteedieadaiied 3

Hobbie v. Unemployment Appeals Commission,

No. 85-998 (Feb. 25, 1967) .......-.-----.---220-.-2----0000- 12, 22

Illinois ex rel. McCollum vy. Board of Education,

CP FO vccucese he OO

INS v. Chadha, 462 U.S. 919 (1983) ..........------. isk 5

Lemon v. Kurtzman, 403 U.S. 602 (1971) ------.--- 8, 14, 25

Lynch v. Donnelly, 465 U.S. 668 (1984) -............-. passim

Marsh v. Chambers, 463 U.S. 783 (1983) ..... 12, 21, 22, 25

Mueller v. Allen, 463 U.S. 388 (1983) .......... eres 16

Stone v. Graham, 449 U.S. 39 (1980) (per

curiam ) sidecadumaies mii kaa. 15

Estate of Thornton v. Caldor, Inc., 105 S. Ct.

2914 (1985) 4 oF a Bes aE Oe 10

United States v. Lovett, 328 U.S. 303 (1946) ....... 5

United States v. O’Brien, 391 U.S. 367 (1968) -... 17

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

Walz v. Tax Commission, 397 U.S. 664 (1970)... 12, 22

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............ 12

Wooley v. Maynard, 430 U.S. 705 (1977) -............... 13

Zorach v. Clauson, 343 U.S. 306 (1952) -.............- _... passim

Constitutional Provisions and Statutes:

First Amendment ...............-- 2

Fourteenth Amendment ......................-------------------20-++ 2

I atl aisiccmetalliniaeli 2

ee eee oda. 5

Alabama Code § 16-1-20.1 (Supp. 1984) —............... 11

N.J.S.A. 18A: 36-4 (West 1982) .............. SS itll passim

XV

TABLE OF AUTHORITIES—Continued

Miscellaneous: Page

Anticau, Downey and Roberts, Freedom From Fed-

eral Establishment: Formation and Early His-

tory of the First Amendment Religion Clauses

| 23

Tie Bergen Record, December 14, 1982 .............-... 4

Choper, Religion in the Public Schools: A Pro-

poses Constitutional Standard, 47 Minn. L. Rev.

0 Fae ee 26

Comat. Accommodating yrngen in the Public

Schools, 56 Nebr. L. Rev. 425 (1980) .........----...--. 26

Comment, Moment of rsa ‘Meteien: An Im-

proper Relationship Between Church and State

in Public Schools, 54 U.M.K.C. L. Rev. 488

IE - ccosesiacasthiideelicadtheiaininecabiptiianniteenntnnnininenntnnetiines 26

The Courier-Post, December 14, 1982 ............--..---- 4

Drakeman, Prayer in the Schools: Is New Jer-

seu’s Moment of Silence Law Constitutional?,

35 Rutgers L. Rev. 341 (1983) ............................. 26

Freund, The Legal Issue In Religion and the Pub-

FS See oe 26

Kauper, Prayer, Public Schools and the Supreme

Court, 61 Mich. L. Rev. 1031 (1963) -.................. 26

McConnell, Accommodation of Religion, 1985 Sup.

a SEERA a SO DAI D ane Danan ee ee 13, 26

Note, Daily Moments of Silence in Public Schools:

A Constitutional Analysis, 58 N.Y.U. L. Rev.

TS EE is CR EOS eens eee ee 26, 27

Note, Religion and the Public Schools, 20 Vand. L.

ey RRA eee 26

Note, The Unconstitutionality of State Statutes

Authorizing Moments of Silence in the Public

Schools, 96 Harv. L. Rev. 1874 (1983) ............... 26

The Philadelphia Inquirer, October 19, 1982 3

Smith, Now is the Time for Reflection: Wallace

v. Jaffree and its Legislative Aftermath, 37 Ala.

i a i tcenmetenesibinnit 26

The Star Ledger, October 25, 1982

xvi

TABLE OF AUTHORITIES—Continued

Page

The Star Ledger, December 2, 1982 -..............---------»- 4

The Star Ledger, December 14, 1982 ..............------------ 4,18

The Star Ledger, December 17, 1982 ..............------------ 4

Treiman, Religion in the Public Schools, 9 N. Ky.

en. | SSS 26

The Trenton Times, October 12, 1982 .......--.-.-.--.------- 3

The Trenton Times, October 19, 1982 ......... ee 3

The Trenton Times, December 8, 1982 ...........-----:--.--- 4

The Trenton Times, December 14, 1982 .......----.--. ad 4

Tribe, American Constitutional Law, § 14-6

(1978)

IN THE

Siren Court of the United States

OCTOBER TERM, 1986

No. 85-1551

ALAN J. KARCHER, et al.,

Appellants,

RONALD and CATHERINE SOKALSKI

and TWYLLA FLANDERS,

Intervenors-A ppellants

V.

JEFFREY MAY, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Third Circuit

BRIEF OF INTERVENORS-APPELLANTS

RONALD AND CATHERINE SOKALSKI

AND TWYLLA FLANDERS

STATUS OF INTERVENORS-APPELLANTS

Contemporaneously with the filing of this brief, inter-

venors-appellants have filed a motion for leave to inter-

vene with supporting affidavits and legal argument.

OPINIONS BELOW

The opinion of the court of appeals (J.S. App. la-61a)

is reported at 780 F.2d 240 (3d Cir. 1985). The opinion

of the district court (J.S. App. 62a-100a) is reported at

572 F. Supp. 1561 (1983).

2

JURISDICTION

The judgment of the court of appeals (J S. App. 103a)

was entered on December 24, 1985. The Jurisdictional

Statement was filed March 19, 1986. On January 12,

1987, the Court granted review of the appeal, but post-

poned ruling on the question of jurisdiction pending a

hearing on the merits. This Court has jurisdiction pur-

suant to 28 U.S.C. § 1254(2).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

N.J.S.A. 18A: 36-4 (West 1982) provides:

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 opening exercises of

each school day for quiet and private contemplation

or introspection.

The First Amendment to the United States Constitu-

tion provides, in pertinent part:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof.

The Fourteenth Amendment to the United States Con-

stitution provides, in pertinent part:

No State shall . . . deprive any person of life, liberty

or property, without due process of law... ..

STATEMENT

1. The New Jersey Moment of Silence Statute, Assem-

bly Bill 1064, described by its 55 sponsors as “[a]n Act

to allow students of public schools to participate in a

1 minute period of silence before the opening of each

school day” (J.S. App. 110a), was introduced in the New

Jersey Assembly on March 8, 1982. The explanatory

statement attached to the bill provided simply that the

3

provision “allows each student to participate in a 1 min-

ute period of voluntary silence to be used solely at the

diseretion of the individual student.” J.S. App. 11la.

Following its introduction, the bill was referred to the

Education Committees of the Senate and Assembly which

filed reports stating—in language virtually identical to

the statute itself—that the measure “permit[s] students

to observe one minute of silence before the opening exer-

cises of each school day” to be “used solely at the dis-

eretion of the individual student for quiet contempla-

tion or introspection.” J.S. App. 13a. The legislative re-

ports added that the bill was based upon a Massachusetts

statute that had been upheld against a challenge under

the Establishment Clause of the First Amendment. J.5S.

App. 14a; see Gaines v. Anderson, 421 F. Supp. 337 (D.

Mass. 1976) (three-judge district court).

Although the New Jersey Legislature does not preserve

transcripts of committee hearings or floor debates ( J.S.

App. 14a), the legislative discussion surrounding the bill

attracted considerable media attention. Several remarks

reported in the press reflected the desire of a few individ-

ual legislators to accommodate some students’ interests in

voluntary prayer in the public schools.’ The press reports,

however, also included statements of “several legislators”

that “the bill had nothing to do with prayer.” ”

1 See, e.g., Ernest Tolt@eson, The Philadelphia Inquirer, October

19, 1982 (quoting Senate President Carmen Orechio) (“ ‘(most of

our youngsters are well meaning, are disciplined, don’t cause prob-

lems for society in general, but I think if we had more prayer, more

religion, a lot of the problems that are brought to us by our young-

sters would be eliminated and avoided’”); Jim Goodman, The

Trenton Times, October 12, 1982 (quoting Senator Francis Mc-

Manimon). Appellees provided these newspaper excerpts to the court

of appeals in a letter brief filed with the court following oral argu-

ment. Appellees’ Letter Brief, May v. Cooperman, Nos. 83-5890 and

84-5126 (3d Cir., Aug. 29, 1985) 2 (hereafter cited as “Appellees’

Letter Brief’’).

2 Jim Goodman, The Trenton Times, October 19, 1982. See,

e.g., Robert G. Seidenstein, The Star Ledger, October 25, 1982

4

The bill was passed by both houses of the State legisla-

ture. but was vetoed in early December by Governor

Thomas Kean. That veto was overridden by the respec-

tive votes of the Assembly on December 13, 1982 and the

Senate on December 16, 1982. Press reports reflect that

the measure was enacted over the governor’s veto at least

in part to “help restore order in the classroom.” * The

bill became effective immediately, shortly before the 1982

Christmas school recess. N.J.S.A. 18A: 36-4 (West

1982) .*

2. On January 19, 1983, appellees, a group of parents,

students and a teacher opposed to implementation of a

moment of silence in the public schools, commenced this

litigation seeking declaratory and injunctive relief against

the Commissioner of the New Jersey Department of Edu-

(quoting Assemblyman James Zangari, principal sponsor of the

bill) (“‘[Rlegardless of what some people say, this is not a

prayer bill. Rather, it would allow each student to participate in a

one-minute period of voluntary silence to be used at his or her dis-

cretion’); Robert G. Seidenstein, The Star Ledger, December 2,

1982 (quoting Assemblyman Zangari). Appellants provided these

newspaper excerpts to the court of appeals in a letter brief filed

with the court following oral argument. Appellant’s Letter Brief,

May Vv. Cooperman, Nos. 83-5890, 84-5126 (3d Cir., Aug. 19, 1985)

4-5 (hereafter cited as “Appellant’s Letter Brief’).

8 Robert G. Seidenstein, The Star Ledger, December 14, 1982

(“Assemblywoman Angela Perun (D-Union) said the bill would

help restore order in the classroom, adding, ‘we need all the disci-

pline we can muster in the schools’... Assemblyman John Rocco

(R-Camden) argued that the bill did not touch on religion but sim-

ply permitted teachers and students ‘to spend some moments in

reflection’”,. Appellant’s Letter Brief 1. See also Jim Goodman,

The Trenton Times, December 14, 1982; John Shure, The Bergen

Record. December 14, 1982; Nancy Freiberg, The Courier-Post,

December 14, 1982; Robert G. Seidenstein, The Star Ledger, Decem-

ber 17, 1982; Jill Pollack, The Trenton Times, December 3, 1982.

Appellant’s Letter Brief 3-5.

4 The text of the statute was communicated to all school districts

by the New Jersey Department of Education without administrative

guidelines or comment. J.S. App. 8a.

5

cation, the Department itself, the Edison Township Board

of Education and the Old Bridge Township Board of

Education. The action was founded upon 42 U.S.C.

§ 1983 and sought declaratory and injunctive relief. Ap-

pellees asserted, among other things, that the statute vio-

lated the Establishment Clause of the First Amendment.

J.S. App. 4a.5 On the day the complaint was filed, the

district court issued a temporary restraining order en-

joining observance of a moment of silence pursuant to the

statute. Jd. at 5a. When it became apparent that the

Executive Branch would not defend the provision, the

district court permitted the New Jersey legislature to

intervene to defend the constitutionality of the moment

of silence statute.° Thereafter, the parties consented to

an order enjoining the exercise of rights under the stat-

ute pending trial on the merits. Jd. at 6a.

Trial commenced on September 13, 1983. Appellees’

evidence fell into five categories: “testimony of three

witnesses who were present at legislative hearings; news-

paper accounts of the hearings; evidence of the percep-

tions of various citizens and citizens’ groups of New

Jersey about the statute’s purpose; expert testimony about

the pedagogical value of the statute; and [numerous]

prior bills proposing moments of prayer or moments of

silence.” J.S. App. 48a (Becker, J., dissenting).

In an attempt to establish that the purpose for the

moment of silence statute was religious in nature, three

5 Appellees also argued that the statute violated the Due Process

Clause of the Fourteenth Amendment as well as the New Jersey

Constitution. Neither the district court nor the court of appeals ad-

dressed these claims.

6 The district court permitted the New Jersey Senate, the New

Jersey General Assembly and the respective President and Speaker

for those two legislative bodies to intervene. J.S. App. 5a. Compare

the procedures followed in JNS v. Chadha, 462 US. 919 (1983), and

United States v. Lovett, 328 U.S. 303 (1946).

6

witnesses testified that some legislators wanted to accom-

modate voluntary prayer.’ The witnesses also “testified

to legislators’ statements that the statute had a secular

purpose.” Jd. at 48a-49a (Becker, J., dissenting) .* News-

paper clippings also demonstrated that secular as well as

religious concerns animated the actions of individual leg-

islators. See supra notes 1-3 and accompanying text.

Appellees’ witnesses opined as to how Section 36-4 was

perceived by various organizations, such as the New Jersey

School Board Association, the American Baptist Churches

of New Jersey, and the public. J.S. App. 7la-73a. They

characterized the statute “as an attempt to return prayer

to the public schools in another guise.” Id. at 71a.

On the question of the pedagogical value of the statute,

the district court heard appellees’ expert testimony “that

7 Typical of the testimony relied upon by appellees is the follow-

ing statement by Reverend Sarfaty (Appellee’s Letter Brief 9):

Question: How about Senator Brian Kennedy? Do you have

any recollection of any statements made by Senator Kennedy?

Answer: Yes, I do, because I got to know him pretty well,

especially in debates over the subject away from the Assembly

or the Senate.

He said that: Nobody knows what the kids are doing, but he

hopes they are praying.

8 Miss Rhodes, for example, testified that she recalled a state-

ment by Assemblyman Zangari “that the intent [of the statute]

was basically to provide the minute of silence at the beginning of

the school days.” Appellants’ Letter Brief 6. Mr. Chuman, in a

fairly lengthy exchange set out by Judge Becker (J.S. App. 49a

n. 7), testified that Assemblyman Zangari had stated that “he

thought that the moment of silence would be useful in the schools

and would serve an educational purpose.” Appellants’ Letter Brief

8. Reverend Sarfaty further recalled that “the debate was: Did we

need this thing to change the climate and life of our school system ?

The majority of the Senators felt we did. As far as I could see, they

really didn’t think any prayer issue was relevant one way or another

so long as it had this effect.” Id. at 9-10.

7

the moment of silence before class would not be a valu-

able educational tool.” J.S. App. 56a (Becker, J., dis-

senting) ; see J.S. App. 83a-84a (moment of silence “has

little educational justification”). Appellants’ experts, by

contrast, testified “that the minute of silence served a

useful pedagogical function by creating a boundary be-

tween school and non-school time” which was important

“because it would emphasize to the students the impor-

tance of the school hours, and the fact that school hours

were a time for serious work rather than undisciplined

play.” Jd. at 56a (Becker, J., dissenting). In addition,

appellants introduced testimony by educators who had

extensive favorable experience with a local moment of

silence policy.°

The final category of evidence considered by the dis-

trict court consisted of prior prayer and/or moment of

silence bills debated by the New Jersey legislature. The

evidence reflected several attempts during the 1970s to

enact a law providing for school prayer, none of which

® Appellants introduced evidence that the Sayreville (New Jer-

sey) Board of Education adopted a moment of silence policy in

1969. J.S. App. 73a. Since that time, “all the Sayreville pub-

lic schools have commenced the day with opening exercises which

culminated in a moment of silence.” Jd. A teacher who had ad-

ministered the moment of silence for an extended period testified

that “[n]o parents or children ever expressed concern about the

practice, and [she] viewed the ceremony as a helpful way to start

the school day.” Jd. at 74a.

Appellants also submitted the results of a study in the Las

Cruces, New Mexico Public School District by Dr. Calvin Thompson,

who testified at trial. Dr. Thompson studied the effect of a moment

of silence “by televising a number of classrooms before, during and

after the moment of silence, by watching the period of silence and

by conducting structured interviews with students. On the basis

of his study Dr. Thompson concluded that most persons viewed the

moment of silence as simply silence and not as prayer.” J.S. App.

79a.

8

succeeded in becoming law.’’ Subsequently, the legislature

shifted to the concept of a moment of silence which was

enacted in 1982.“

The district court, on the basis of the above record,

concluded that the moment of silence statute violated all

three prongs of Lemon v. Kurtzman, 403 U.S. 602

(1971). The court reasoned that the moment of silence

provision failed the “purpose” prong of Lemon because

the secular motivation behind the statute was not “over-

whelming[ly] obvious and important” (J.S. App. 91a).

Despite finding that “in combination with the flag salute

and a song a brief period of silence serves a transition

purpose” (id. at 83a), the court held that the “purpose

of the Bill, urged at the trial, to provide a transition

from non-school life to school work is an after-the-fact

rationalization and not the real purpose of the Bill.” Jd.

at 87a. Because the trial court found that the “purpose

of [the statute] was to mandate a period at the start of

each schoo! day when all students would have an oppor-

tunity to engage in prayer” (id. at 86a), it determined

that the statute violated the “effect” prong of Lemon by

10 The evidence showed that on three occasions, bills were intro-

duced that would have provided for voluntary recitation of the

Lord’s Prayer. S.B. 1296 (1976 session); S.B. 472 (1978 ses-

sion); S.B. 594 (1980 session). None of these prayer measures

was enacted. In 1968-1970, the legislature did pass bills that would

have mandated a “brief period of silent prayer or meditation,” but

these measures were vetoed by the governor. A.B. 640 (1968);

4 *. 146 (1969); A.B. 597 (1970). In 1980 and 1981, several bills

we.e introduced that did not refer to prayer but instead provided

for mandatory participation in a moment of silence in the class-

room; one of these moment of silence bills was enacted in 1981

but was vetoed by the governor. A.B. 1028 (1980) ; A.B. 342 (1980) ;

A.B. 2197 (1981).

As noted, supra p. 4, Section 35-4, the voluntary moment of

silence statute at issue in this case was passed by the New Jersey

legislature in 1982,

11 Compare §.B. 1296 (1976 session); S.B. 472 (1978 session) ;

S.B. 594 (1980 session) with Section 36-4.

9

both “advanc[ing] and inhibit{ing] religion.” Jd. at 94a.

Finally, the moment of silence was found to be unduly

“entangling” because a “required minute of silence

would pit children and parents who believed in prayer

in the public schools against children and parents who

do not.” Jd. at 98a.

The court of appeals, by a divided vote, affirmed. The

court disagreed, however, with virtually all of the dis-

trict court’s reasoning. The court of appeals repudiated

the assertion that the statute was unconstitutionally “en-

tangling” because of its potential for divisiveness. Jd. at

17a (citing Lynch v. Donnelly, 465 U.S. 668, 684

(1984) ). The court of appeals noted that, “[i]f political

divisiveness were the test for entanglement, no govern-

mental accommodation of religion would survive Estab-

lishment Clause scrutiny. The law is otherwise.” J.S.

App. 17a. The court then rejected the holding below that

the statute violated the “effect” test simply “by desig-

nating a time and place when children and teachers may

pray.” Jd. at 22a. “The state,” the court of appeals

wrote, “equally injects itself into religious matters when

it designates a time and place when children and teachers

may not pray.” Jd. The court of appeals, however, held

that the moment of silence statute foundered upon the

“purpose” prong of Lemon.

The court declined to set aside the district court’s find-

ing that the statute’s purported secular purpose was

“pretextual.” J.S. App. 27a. The court of appeals never-

theless considered whether the statute survived consti-

tutional serutiny as a permissible accommodation of

religious beliefs. Noting that there was no basis for

finding that “teachers had encouraged voluntary prayer

over other alternative uses of the minute of silence” (id.

at 26a), the court concluded that a holding that the pur-

pose of the statute “was to encourage prayer over other

alternatives . . . would [not] be sustainable” (id. at

29a). Thus, the court reasoned that “the question pre-

10

sented by this appeal narrows to this: May the state

. . . take action in the school setting that, while not en-

dorsing prayer in preference to other forms of silent ac-

tivity, provides for a minute of silence for the purpose

of permitting prayer by those who want to pray?” Id.

Finding no “clear answer’ from the opinions in this

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

(1985), the court gave a negative response—virtually

without explanation. J.S. App. 29a.”

Judge Becker filed a lengthy dissent. “(T]he panel

has concluded that the statute has no impermissible effect

and fosters no excessive governmental entanglement with

religion. As I see it, under these circumstances, only

extremely clear proof that the law is devoid of a secular

purpose would justify our holding it unconstitutional;

such proof was not produced in this case.” J.S. App. 32a

(Becker, J., dissenting).

INTRODUCTION AND SUMMARY OF ARGUMENT

Two years ago this Court invalidated a unique state

statute which authorized a period of silence for “medita-

tion or voluntary prayer.” Wallace v. Jaffree, 472 U.S.

38, 40 (1985). The Court did so, however, only because

Alabama’s statute “had no secular purpose” (id. at 56)

(emphasis in original), as evidenced by the unambiguous

declarations of its legislative sponsor * and the existence

of another facially neutral moment of silence provision

12 The court of appeals did note (J.S. App. 29a) that this Court

had invalidated a “statute that was designed to accommodate reli-

gious views” in Estate of Thornton Vv. Caldor, Inc., 105 S. Ct. 2914

(1985), but ignored the fact that the decision in Thornton was

based on the “effects” prong of the Lemon test—which the court of

appeals already had concluded was satisfied here. J.S. App. 17a-22a.

18 The principal legislative sponsor of the Alabama atatute, when

asked “whether he had any purpose for the legislation other than

returning voluntary prayer to public schools . . . stated, ‘No, I did

not have no other purpose in mind.’” 472 U.S. at 57.

11

already in effect in the State."* /d. at 56-59. Under those

circumstances, the Court concluded that the statute was

constitutionally infirm because it was “enacted to convey

a message of State endorsement and promotion of prayer.”

Id. at 59. But, a majority of the Court indicated that a

moment of silence statute that did not endorse prayer

would withstand scrutiny under the Establishment Clause.

See id. at 62 & n.2 (Powell, J., concurring) ; id. at 72-73,

76-77 (O’Connor, J., concurring); id. at 87-89 & n.4

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

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

court of appeals here specifically held that the New Jersey

moment of silence statute does not “encourage prayer

over other alternatives.” J.S. App. 29a. Accordingly, the

statute should have been upheld.

1. The New Jersey moment of silence statute satisfies

all three prongs of the Lemon test. With respect to ef-

fects and entanglement, the court of appeals was correct

that the moment of silence statute in New Jersey clearly

passes constitutional muster. Student silence has no reli-

gious effect—primary, secondary or otherwise. Neither

is there any entanglement. The crucial inquiry, then, is

whether the statute has any legitimate secular purpose,

and on this issue the court of appeals has misread this

Court’s precedents, particularly Wallace v. Jaffree. As

noted above, a majority of the Court in that case (and

perhaps the entire Court) said that properly drawn

moment of silence statutes ordinarily should be constitu-

tional. It would be difficult to imagine a statute whose

14 The statute invalidated in Jaffree (Alabama Code § 16-1-20.1

(Supp. 1984)) was enacted despite the presence in the Alabama

Code of an earlier, facially neutral moment of silence provision.

Alabama Code § 16-1-20 (Supp. 1984). Because Alabama could not

“identiff[y] any secular purpose [furthered by the second statute]

that was not fully served” by the earlier legislation, the Court con-

cluded that the second moment of silence provision “was intended

to convey a message of State-approval of prayer activities in the

public schools.” 472 U.S. at 59, 61.

12

language and history are any freer of improper purpose

than this one.

The New Jersey statute also lacks any other indicia

of an improper legislative purpose to promote religion.

Legislators advocated enactment of the statute on the

basis of the secular purpose to restore order to the class-

room. Moreover, the relationship between the moment of

silence statute and prior proposed legislation demon-

strated that the state would not approve any efforts to

compel school prayer. Thus, enactment of a moment of

silence did not convey any intention to force prayer into

the schools. Accordingly, the court of appeals erred in

holding that the statute violates the First Amendment

because of the supposed lack of an appropriately “secu-

lar’”’ purpose.

2. “This Court has long recognized that the govern-

ment may (and sometimes must) accommodate religious

practices and that it may do so without violating the

Establishment Clause.” Hobbie v. Unemployment Ap-

peals Commission, No. 85-993 (February 25, 1987), Slip

op. 8 (footnote omitted). Legislative choice is not limited

to what is required by the dictates of the Free Exercise

Clause. Jd. at 8 & n.10. See, e.g., Lynch v. Donnelly,

465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 U.S.

783, 791 (1983); Wisconsin v. Yoder, 406 U.S. 205

(1972); Walz v. Tax Commission, 397 U.S. 664 (1970);

Zorach v. Clauson, 343 U.S. 306 (1952). Thus, even if

the purpose of Section 36-4 were to “promote religion”

by accommodating some children’s desire to have an op-

portunity to pray, that purpose could still be legitimate

under the Establishment Clause.

Such accommodation, of course, is bounded by the Es-

tablishment Clause principles of neutrality (the state

must not favor one religion over another, or communicate

a message of endorsement of a particular religious prac-

tice) and voluntarism (the state may facilitate only reli-

gious choices that are independently adopted and may

13

not induce religious exercise). The appropriate distinc-

tion, then, is between the genuine desire to accommodate

religious needs and the desire to use the resources and

prestige of government to encourage or inculcate religion

among the unwilling or the indifferent. See McConnell,

Accommodation of Religion, 1985 Sup. Ct. Rev. 1.

Here, to the extent the moment of silence statute ac-

commodates religion, the accommodation is clearly per-

missible under this Court’s precedents. The New Jersey

statute is purely enabling, not prescriptive. It is silent

as to religion, protecting “ ‘both the right to speak freely

and the right to refrain from speaking at all.’” Jaffree,

472 U.S. at 51 (quoting Wooley v. Maynard, 430 U.S.

705, 714-715 (1977)). It is plainly not “an instrument

for fostering public adherence to an ideological point of

view [an individual] finds unacceptable.’” Jd. at 51-52.

At most, it provides a limited opportunity for those few

children who wish to do so to pray prior to the beginning

of the school day. The New Jersey moment of silence

statute, simply put, is constitutionally unexcepticnable

and should be upheld as a permissible accommodation of

religion.

14

ARGUMENT

THE NEW JERSEY MOMENT OF SILENCE STAT-

UTE, WHICH “PERMIT(S]) STUDENTS TO OB-

SERVE A 1 MINUTE PERIOD OF SILENCE” FOR

“PRIVATE CONTEMPLATION OR INTROSPECTION”

DOES NOT VIOLATE THE ESTABLISHMENT

CLAUSE OF THE FIRST AMENDMENT.

I. The New Jersey Moment Of Silence Statute Has A

Constitutionally Permissible Purpose And Does Not

Convey Any Message Of Endorsement Or Disapproval

Of Religion.

The district court concluded that the New Jersey

statute violated all three prongs of the Lemon test.

J.S. App. 94a, 98a. The court of appeals correctly dis-

agreed with the conclusion that the statute ran afoul of

the “entanglement” or “effect” elements. Jd. at 16a-22a.

As the court of appeals found, a moment of silence stat-

ute does not foster excessive entanglement with religion

or have the primary effect of advancing or inhibiting

reliigon. Lemon, 403 U.S. at 612-613; Board of Educa-

tion Vv. Allen, 392 U.S. 236, 243 (1968). A moment of

silence, moreover, does not create the danger that the state

or the church will intrude upon the affairs of the other,

nor can it have the “effect on the minds and feelings of

immature pupils” of advancing religion for the obvious

reason that “it is unlikely that many children [will] use

a simple ‘moment of silence’ as a time for religious

prayer.” Jaffree, 472 U.S. at 66 n.9 (Powell, J., con-

curring). See also id. at 72 (O’Connor, J., concurring).

The court of appeals nevertheless affirmed the district

court’s holding that the statute was unconstitutional. It

did so, however, on the ground that it did not find

“clearly erroneous” (id. at 27a) the lower court’s conclu-

sion that the statute lacked an “overwhelming[ly] obvi-

ous and important secular purpose.” Jd. at 9la. The

affirmance on this ground reflects a fundamental mis-

15

understanding of the inquiry into legislative purpose

under Lemon.

“The Court has invalidated legislation or governmental

action on the ground that a secular purpose was lacking,

but only when it has concluded that there was no ques-

tion that the statute or activity was motivated wholly by

religious considerations.” Lynch, 465 U.S. at 680 (em-

phasis added) (citing Stone v. Graham, 449 U.S. 39, 41

(1980) (per curiam); Epperson v. Arkansas, 393 U.S.

97, 107-109 (1968) ; Abington School District v. Schempp,

374 U.S. 203, 223-224 (1963); Engel v. Vitale, 370

U.S. 421, 424-425 (1962)). A statute need have only “a

secular purpose;” there is no requirement that it have

“ ‘exclusively secular’ objectives.” Lynch, 465 U.S. at 681

n.6 (emphasis added). Moreover, the judicial search for

that secular purpose “should be deferential and limited.”

Jaffree, 472 U.S. at 74 (O’Connor, J., concurring).” “If

a legislature expresses a plausible secular purpose for a

moment of silence statute in either the text or the legisla-

tive history, or if the statute disclaims an intent to en-

courage prayer over alternatives during a moment of

silence, then courts should generally defer to that stated

intent.” Jd. at 74-75. The lower courts’ rejection of the

New Jersey legislature’s proffered secular purpose for

the statute in the course of their search for an “over-

whelming[ly] obvious and important secular purpose”

(J.S. App. at 91a) was clearly erroneous.

The question whether a state statute has a secular pur-

pose “cannot be answered in the abstract, but instead

requires courts to examine the history, language and ad-

ministration of a particular statute to determine whether

it operates as an endorsement of religion.” Jaffree, 472

U.S. at 74 (O’Connor, J., concurring). A balanced anal-

ysis of the language, history and administration of- the

15 See Everson Vv. Board of Education, 330 U.S. 1, 6 (1947)

(court should exercise “the most extreme caution” in assessing

whether a state statute has a proper purpose).

16

moment of silence statute in this case reveals a legitimate

secular basis for the statute.”

“TA] plausible secular purpose for the State’s [moment

of silence] program may be discerned from che face of the

statute.” Mueller v. Allen, 463 U.S. 388 at 394-395 (1983).

The statute provides for a moment of silence, “before the

opening exercises of each school day,” to be used in the in-

dividual student’s discretion “for quiet and private con-

templation or introspection.” Such a moment of contem-

plation serves the “solely secular ends” of “fostering har-

mony and tolerance among the pupils, enhancing the

authority of the teacher, and inspiring better discipline.”

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

Indeed, the appellants introduced an expert witness and

two educators from Sayreville, New Jersey, who testified

that a moment of introspection before the start of a school

day serves an important pedagogical function—it creates

a boundary emphasizing “that school hours [are] a time

for serious work rather than undisciplined play.” J.S.

App. 56a (Becker, J., dissenting). See supra notes 3, 8

& 9 and accompanying text.'’ Moreover, even the dis-

16 Appellant Karcher has argued that this Court “is required to

independently review the entire trial court record in order to

preserve the liberties established by the United States Constitution.”

Jurisdictional Statement at 26 (citing Bose Corp. Vv. Consumers

Union, 466 U.S. 485 (1984). See J.S. App. 48a-47a (Becker, J.,

dissenting) (arguing that Bose requires plenary review of record

in this case). Although intervenors-appellants agree with appellant

Karcher that the presence or absence of a “secular purpose” is

a “constitutional fact” falling within the Bose standard, the Court

need not resolve whether Bose applies to this case. The record here

“simply does not demonstrate that the statute lacks any secular

purpose.” Jd. at 59a (Becker, J., dissenting).

17The fact that appellees’ witnesses disputed the pedagogical

wisdom of a moment of silence is not constitutionally significant.

See J.S. App. 83a-84a. “This program may be unwise and im-

provident from an educational or a community viewpoint... .

{I |ndividual preferences, however, are not the constitutional stand-

ard.” Zorach, 343 U.S. at 314. The New Jersey legislature has

articulated a legitimate, secular purpose for its moment of silence

17

trict court acknowledged that “a brief period of silence

Serves a transition purpose.” Jd. at 83a. Accordingly,

the court’s ultimate conclusion that the statute neverthe-

less lacks a “secular purpose” is plainly wrong.

The district court compounded that error by conclud-

ing that the legislative history of the statute and its

relationship to prior New Jersey prayer or contempla-

tion statutes evidence an impermissible sectarian pur-

pose. The legislative statement attached to the statute,

as well as the legislative reports on the measure, reflect

a secular goal: provision of a moment of silence “for

quiet contemplation or introspection.” J.S. App. 13a.

Nothing outside these materials, moreover, demonstrates

an impermissible legislative motivation.”

Appellees’ witnesses testified that, during the legisla-

tive hearings on the statute, there were some individual

legislators who expressed their desire to accommodate

private, voluntary prayer. Supra note 7 and accompany-

ing text. But this evidence, “given its paucity,” was “at

best underwhelming.” J.S. App. 48a (Becker, J., dissent-

ing). Moreover, as we argue in Part II, infra, this stated

purpose is clearly legitimate. More important, however,

appellees’ witnesses admitted that the legislators articu-

lated unquestionably legitimate secular purposes for the

statute. The lower courts erred in striking down the statute based

on testimony that the wisdom of that goal is debatable. See J.S.

App. 83a-84a.

18 Appellant Karcher has argued that searching judicial inquiry

into the motivation of the New Jersey legislature is improper.

See Jurisdictional Statement at 13-21. See also United States v

O’Brien, 391 U.S. 367, 383 (1968) (“Inquiries into congressional

motives or purposes are a hazardous matter’). Intervenors-

appellants share appellant Karcher’s legitimate objection to exacting

judicial scrutiny of legislative motivation. Nevertheless, the evi-

dence of legislative intent considered below (consisting mainly of

eyewitness accounts of the legislative hearings and newspaper

articles) plainly shows a legitimate secular purpose for the statute.

Supra notes 2, 3 & 8 and accompanying text. The “legislative pur-

pose” inquiry of Lemon demands no more.

18

legislation. Supra note 8 and accompanying text. The

press coverage of the legislative process likewise evidences

a secular goal on the part of the New Jersey legislature.

Despite some reported references to prayer (supra note

1 and accompanying text), the newspaper articles in-

troduced by appellees reflect that the statute was enacted

to “provide [students] with a chance to acquire perspec-

tive” and to “help restore order in the classroom.” ”

Supra notes 2-3 and accompanying text. There is simply

no basis for the lower court’s pronouncement that the

“statute had no secular purpose.” Jaffree, 472 U.S. at

56.

The lower courts’ rule—and the only rule under which

an impermissible purpose can be ascribed to the statute—

would invalidate any statutory accommodation of religion

whenever any legislator made any comment in favor of

religion. Such an approach would represent not an ap-

plication of Lemon, but its replacement with a rule of

per se invalidity for moment of silence statutes and

other religious accommodations. It would also create a

single-legislator veto power in any legislative opponent

of such legislation. Such a result is improper. Cf. Jaf-

free, 472 U.S. at 83 (O’Connor, J., concurring) (it is

“disingenuous to look for a purely secular purpose” in

a religious accommodation statute; “the Court should

simply acknowledge that the religious purpose of [an

accommodation] statute is legitimated by the Free Exer-

cise Clause”’).

Nor is this a case, like Jaffree, where the relationship

between the statute and prior legislative efforts demon-

strates the “wholly religious character” of the moment

of silence provisions. Jaffree, 472 U.S. at 58. Unlike the

“Lord’s Prayer” bills and the “prayer or meditation”

19 Robert G. Seidenstein, The Star Ledger, October 25, 1982

(Appellants’ Letter Brief 5).

20 Robert G. Seidenstein, The Star Ledger. December 14, 1982

(Appellants’ Letter Brief 2).

19

provisions introduced into the New Jersey legislature

at various times, the moment of silence statute makes

no reference whatsoever to prayer. Supra note 10 and

accompanying text. And, unlike all the prior statutes

—which made participation by “all pupils’ mandatory

(J.S. App. 10a; see id. at 1lla-13a)—the moment of

silence statute merely “permit[{s] students to observe

a 1 minute period of silence to be used solely at the dis-

cretion of the individual student.” Thus, any rational

consideration of the relationship between prior New Jer-

sey prayer or contemplation statutes and Section 36-4 can

yield but one conclusion: the state legislature, over time,

became increasingly sensitive to Establishment Clause

concerns. It rejected attempts to return mandatory

prayer to public classrooms (cf. Jaffree, 472 U.S. at 57-

61), but approved a completely discretionary ‘contem-

plation or introspection” provision. While it is true that

rights of conscience will bear but the “ ‘gentlest touch

of governmental hand,’”** New Jersey has conscien-

tiously kept its touch within constitutional limits.

Because the appellees filed this action almost immedi-

ately after Section 36-4 went into effect, there is virtually

no evidence in the record concerning the administration

of the statute. J.S. App. 8a. What evidence there is, how-

ever, shows that moments of silence have been adminis-

tered in New Jersey without creating any Establishment

Clause problems. Two educators testified that they had

used a moment of silence since 1969 without any child

or parent complaining that the practice promoted reli-

gion. Moreover, these educators found that the oppor-

tunity for introspection was “a helpful way to start the

school day.” J.S. App. 74a. This evidence negates any

serious claim that the secular purpose for Section 36-4 is

“pretextual.” J.S. App. 27a.

21 Schempp, 374 U.S. at 231 (Brennan, J., concurring) (quoting

1 Annals of Cong. 730 (J. Hales ed. 1789) ).

20

The evidence in this case plainly shows that the New

Jersey legislature was motivated by a proper secular

purpose when it enacted the moment of silence statute.

There is, in fact, no reliable evidence to the contrary.”

This Court has indicated that the fundamental inquiry

under the “purpose” prong of Lemon is “ ‘whether the

Government intends to convey a message of endorsement

or disapproval of religion.’” Jaffree, 472 U.S. at 61

(quoting Lynch, 465 U.S. at 691 (O’Connor, J., concur-

ring)). In the context of a moment of silence statute,

the “crucial question is whether the State has conveyed

or attempted to convey the message that children should

use the moment of silence for prayer.” Jaffree, 472 U.S.

at 73 (O’Connor, J., concurring). Even a cursory re-

view of the record below demonstrates that the New

Jersey legislature plainly did not convey or attempt to

convey any such message when it enacted the moment of

silence statute. Indeed, the court of appeals expressly

found that the State of New Jersey has not “encour-

age[d] prayer over other alternatives.” J.S. App. 29a.

As a result, the State’s provision of a moment of silence

for schoolchildren and teachers at the start of each school

day does not exceed the strictures of the Establishment

Clause.

22 Although the district court thought it “significant” that

appellees’ witnesses characterized the statute as “an attempt to

return prayer to the public schools in another guise” (J.S. App.

71a), such “[c]ommunity perception is simply too amorphous and

unreliable to provide the ground for constitutional decisions.”

Id. at 55a (Becker, J., dissenting). Indeed, Justice O’Connor has

stated that federal courts must not “denigrate an expressed secular

purpose” based on “testimony . . . by interested persons who wit-

nessed the drafting of the statute.” Jaffree, 472 U.S. at 75.

21

Il. The New Jersey Moment Of Silence Statute “Merely

Protect[s] Every Student’s Right To Engage In Volun-

tary Prayer During An Appropriate Moment Of Silence

During The School Day” ** And Is A Constitutionally

Permissible Accommodation Of Religion

Even assuming that Section 36-4 could be regarded as

having some “non-secular” purpose, the court of appeals

was clearly correct that such a finding does not end the in-

quiry because all efforts at accommodation of religion have

in some sense a non-secular purpose. Jaffree, 472 U.S. at

83 (O’Connor, J., concurring). The issue remains whether

the statute nevertheless could be sustained as a permis-

sible “accommodat[ion] [of] those students desiring the

opportunity to engage in prayer at some point during

the school day.” J.S. App. 28a. Finding no unambiguous

guidance in the previous decisions of this Court, the court

of appeals concluded that a state may not “provide[] for

a minute of silence for the purpose of permitting prayer

by those who want to pray” even where the state does

not “endors[e] prayer in preference to other forms of

silent activity.” Jd. at 29a. The Establishment Clause

does not require such an extreme result.

“In our modern, complex society, whose traditions and

constitutional underpinnings rest on and encourage diver-

sity and pluralism in all areas, an absolutist approach

in applying the Establishment Clause is simplistic and

has been uniformly rejected by the Court.” Lynch, 465

U.S. at 678. The fundamental goal of the Religion Clauses

of the First Amendment is not the removal of all traces

of religion from public life. On the contrary, the Con-

stitution “affirmatively mandates accommodation, not

merely tolerance, of all religions, and forbids hostility

towards any.” Id. at 673. See Marsh v. Chambers, 463

U.S. 783, 791 (1983); Zorach, 343 U.S. at 314-315;

Illinois ex rel. McCollum v. Board of Education, 333 U.S.

203, 211 (1948). By providing its schoolchildren with

———qw«~- ——_

23 Jaffree, 472 U.S. at 59.

22

the opportunity for voluntary, private introspection at

the start of each school day, the State of New Jersey has

not transgressed constitutional limits. Rather, by “ad-

justing the schedule of public events to sectarian needs,”

it has “follow[ed] the best of our traditions.” Zorach,

343 U.S. at 314.

The statute permits schoolchildren and teachers, at

their discretion, to take a moment for purely voluntary

and private meditation, contemplation or devotion. Ron-

ald and Catherine Sokalski, intervenors-appellants here

and parents of a child attending a New Jersey public

school, reasonably believe that a moment of silence would

be a positive and non-trivial element of their daughter’s

education during which she might take advantage of the

opportunity to say a brief prayer before she begins her

day in school. App., infra, la, 3a. Although the state

may be under no constitutional command to provide such

a moment,” its provision in the context of a public school

—a structured, compulsory state institution where con-

templative opportunities are limited—necessarily furthers

values protected by the Free Exercise Clause. “[E]ven

when the government is not compelled to do so by the

Free Exercise Clause, it may to some extent act to facili-

tate the opportunities of individuals to practice their

religion.” Marsh v. Chambers, 463 U.S. 783, 812 (Bren-

nan, J., dissenting). See Hobbie v. Unemployment Ap-

peals Commission, No. 85-993 (Feb. 25, 1987), slip op. 8.

The Court has repeatedly stated that there is a channel

—within which state legislatures and Congress may

safely navigate—between what the Establishment Clause

prohibits and the Free Exercise Clause requires. See,

e.g., Walz v. Tax Commission, 397 U.S. 664, 678 (1970).

Though properly drawn moment of silence statutes are

24 The Court has noted that “ ‘it is unlikely that in most contexts

a strong Free Exercise claim could be made that time for personal

prayer must be set aside during the school day.’” Jaffree, 472 U.S.

at 59 n.45 (quoting Brief for the United States as Amicus Curiae

10).

23

not mandated by the Free Exercise guaranty, they are

within the range of permissible legislative choice.”

Indeed, in Zorach the Court recognized that, while

public schools may not invite religious instructors into

the school for purposes of religious instruction (McCol-

lum, supra), government could nevertheless “accommo-

date[] the public service to [the students’] spiritual

needs” by dismissing them to attend religious instruction.

Zorach, 343 U.S. at 314. The government “may not co-

erce anyone to attend church, to observe a religious holi-

day, or to take religious instruction.” Jd. But it can

“suspend its operations” to permit private, voluntary

devotion. Jd. “No more than that is undertaken here.”

Id.

State efforts to facilitate opportunities for voluntary,

private devotion in the public schools should be sus-

tained so long as they do not infringe upon “the indi-

vidual’s freedom to choose his own creed.” Jaffree, 472

U.S. at 52.% A statute such as New Jersey’s, which

25 Cf. Abington v. Schempp, 374 U.S. 203, 299 (Brennan, J., con-

curring) (“hostility, not neutrality, would characterize the refusal

to provide chaplains and places of worship for prisoners and soldiers

cut off by the State from all civilian opportunities for public com-

munion”). Nonmandatory religious accommodation by the govern-

ment has a long history. For example, the First Congress debated

whether the Second Amendment should provide that “no person

religiously scrupulous of bearing arms shall be ccmpelled to render

military service in person.” 1 Annals of Cong. 434 (J. Gales ed.

1789). The language was deleted, in large part, because the decision

whether to grant a religious exemption “ought to be left to the dis-

cretion of the Government.” Jd. at 750. This incident strongly

supports the view that the various states have discretion to accom-

modate religious practice and belief. See also C. Anticau, 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 gov-

ernmental cooperation with religion).

26 Cf. Zorach, 343 U.S. at 314 (“Government may not finance

religious groups nor undertake religious instruction nor blend sec-

24

simply “permit[s]” a moment “for quiet and private con-

templation or introspection” at the sole “discretion of the

individual student” (N.J.S.A. 18A: 36-4) is neutral

among religions and between religion and nonreligion.

The statute neither favors one religion over another, nor

“‘eonvey{s] a message of endorsement or disapproval

of religion.’” Jaffree, 472 U.S. at 61 (quoting Lynch,

465 U.S. at 691 (O’Connor, J., concurring)). New Jer-

sey students are, quite simply, “left to [their] own de-

sires as to ... [their] religious devotions, if any.”

Zorach, 343 U.S. at 311.27 The New Jersey statute thus

falls within the boundaries of permissible religious ac-

commodation because it is both voluntary and neutral.

A more striking example of permissible governmental

“accommodation of all faiths . . . and hostility toward

none” indeed “would be difficult to identify.” Lynch, 465

U.S. at 677, 674.

ular and sectarian education nor use secular institutions to force one

or some religion on any person. But we find no constitutional re-

quirement which makes it necessary for government to be hostile

to religion and to throw its weight against efforts to widen the

effective scope of religious influence”).

27 The New Jersey moment of silence statute is, if anything, less

problematic than the released time program upheld in Zorach. A re-

leased time program advantages only religious students. By contrast,

a moment of silence is completely neutral as between religious and

nonreligious needs. A religious student may utilize the moment for

prayer, an agnostic student for personal meditation, while yet an-

other student may ponder an upcoming social event. Cf. Jaffree, 472

U.S. at 66 n.9 (Powell, J., concurring) (“[I]t is unlikely that many

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

gious prayer. There are too many other subjects on the mind of

the typical child”).

28 Justice O’Connor has suggested that an “accommodation” anal-

ysis applies only when government action “lifts a government-

imposed burden on the free exercise of religion.” Jaffree, 472 U.S.

at 83 (O’Connor, J., concurring). Although the Court’s accommoda-

tion cases have not been strictly limited to instances where the

government acts tc lift government-imposed free exercise burdens

(Lynch, supra; Marsh, supra), this case nevertheless falls within

25

An attempt “to return prayer to the public schools is,

of course, quite different from merely protecting every

student’s right to engage in voluntary prayer during an

appropriate moment of silence during the schoolday.”

Jaffree, 472 U.S..at 59; see also Jaffree, 472 US. at

72 (O'Connor, J., concurring). First, “a moment of

silence is not inherently religious.” Jd.” Second, “a

pupil who participates in a moment of silence need not

compromise his or her beliefs.” Jd. Third, a moment

of silence involves no intrusion by the state into church

affairs (Lemon, 403 U.S. at 614) and entails no inter-

ference with “the essential autonomy of religious life.”

Marsh, 463 U.S. at 803 (Brennan, J., dissenting). Fi-

nally, a simple moment of silence withstands objective

characterization as governmental endorsement of an

“ ‘official’ or ‘authorized’ point of view on a matter of

religion.” Marsh, 463 U.S. at 806 (Brennan, J., dissent-

ing). In sum, a neutral moment of silence statute, such

as New Jersey’s, does not pose any grave constitutional

risks and therefore is a constitutional accommodation of

this more restricted “accommodation” view. Unlike the situation in

Jaffree, there is no other statutory provision in New Jersey which

permits enjoyment of a moment of silence at the start of a school

day. Cf. Jaffree, 472 U.S. at 84 (O’Connor, J., concurring) (“state

law already provided a moment of silence to these appellees ir-

respective of [the challenged statute]”). Thus, the New Jersey

statute does, in a very real sense, lift a state-imposed free exercise

burden (the requireme: that students attend school where moments

for individual medita’ on are restricted) by providing a limited

opportunity which ca. be used for private devotion or other con-

templation. Cf. Zorach, supra.

2° The New Jersey statute does not require any gesture, posture

or attitude that necessarily connotes religious devotion. Although,

as the district court noted, silence may be “one traditional form

of prayer” (J.S. App. 82a), one simply cannot infer that all silent

schoolchildren are praying. Thus, the statute requires neither that

children engage or refrain from engaging in religious activity,

nor that they be seen or perceived as so engaging or refraining.

26

religious preferences. Jaffree, 472 U.S. at 73 (O’Connor,

J., concurring ).*°

30 The weight of scholarly authority also supports the constitu-

tionality of a provision such as the New Jersey moment of silence

statute. See McConnell, Accommodation of Religion, 1985 Sup. Ct.

Rev. 1: Smith, Now is the Time for Reflection: Wallace v. Jaffree and

its Legislative Aftermath, 37 Ala. L. Rev. 345, 375 (1986) (a “medi-

tation or prayer” statute should be constitutional if: (1) it is adopted

in an atmosphere less charged with religious zeal than that found

in Jaffree; (2) the statute is the initial legislation (unlike Jaffree,

in which a “meditation or prayer” statute followed a “meditation”

statute); (3) the “meditation or prayer” statute was adopted for

secular as well as religious purposes; and (4) the “meditation or

prayer” statute is part of an educational strategy to promote

tolerance and student expression) ; Comment, Accommodating Rellt-

gion in the Public Schools, 56 Nebr. L. Rev. 425, 450-454 (1980)

(a moment of silence is a reasonable and acceptable means of

accommodating religion in the public schools) ; Note, Religion and

the Public Schools, 20 Vand. L. Rev. 1078, 1092-1093 (1967) (a

moment of silence does not constitute an advancement of religion,

it is rather a permissible accommodation in the interest of religious

liberty): Kauper, Prayer, Public Schools and the Supreme Court,

61 Mich. L. Rev. 1031, 1041 (1963) (moment of silence raises no

serious constitutional concerns); Choper, Religion in the Public

Schools: A Proposed Constitutional Standard, 47 Minn. L. Rev.

329, 371 (1963) (a moment of silence cannot be fairly characterized

as solely religious since no student can know the subject of other

classmates’ reflections and no one can be compelled to alter his or

her thoughts; Tribe, American Constitutional Law, § 14-6 at 828-

829 (1978) (a moment of silence should withstand Establishment

Clause scrutiny because it is “arguably non-religious”); Freund,

The Legal Issue in Religion and the Public Schools 23 (1965) (the

concept of religious neutrality does not bar silent prayer or ~edita-

tion in the public schools). See also Drakeman, Prayer in the

Schools: Is New Jersey’s Moment of Silence Law Constitutional ?,

35 Rutgers L. Rev. 341, 355 (1983) ; Note, Daily Moments of Silence

in Public Schools: A Constitutional Analysis, 58 N.Y.U. L. Rev.

364, 372 (1983); Treiman, Religion in the Public Schools, 9 N. Ky.

L. Rev. 229, 234-235 (1982). But see contra Comment, Moment of

Silence Statutes: An Improper Relation Between Church and State

in Public Schools, 54 U.M.K.C. L. Rev. 488, 509-510 (1986); Note,

The Unconstitutionality of State Statutes Authorizing Moments of

Silence in the Public Schools, 96 Harv L. Rev. 1874 (1983); Note,

27

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

MICHAEL J. WOODRUFF REX E. LEE *

SAMUEL E. ERICSSON CARTER G. PHILLIPS

HEIDI S. HAGERMAN MARK D. HOPSON

MICHAEL A. PAULSEN SIDLEY & AUSTIN

C/O CENTER FOR LAW & 1722 Eye Street, N.W.

RELIGIOUS FREEDOM Washington, D.C. 20006

Post Office Box 1492 (202) 429-4000

Merrifield, VA 22116 RICHARD G. WILKINS

(703) 560-7314 HOLME, ROBERTS & OWEN

Suite 900

50 South Main Street

Salt Lake City, Utah 84144

(801) 521-5800

Counsel for

Intervenors-A ppellants

Ronald and Catherine Sokalski

and Twylla Flanders

* Counsel of Record

April 13, 1987

Daily Moments of Silence in Public Schools: A Constitutional

Analysis, 58 N.Y.U. L. Rev. 364, 406 (1983).

ee seeps erage