# Amicus Curiae Brief — Karcher v. May

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0099%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 72

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0099%3A15. Public record. Not legal advice.