Opposition Brief — Brown v. Gilmore
Supreme Court brief2001
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No. 01-384
In The
Supreme Court of the United States
¢
ED BROWN, et al.,
Petitioners,
Vv.
JAMES S. GILMORE, III, et al.,
Respondents.
%
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
+
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
¢
RANDOLPH A. BEALES
Attorney General of Virginia
WituiamM H. Hurp
Solicitor General
Counsel of Record
BerNARD L. McNamez, II
Deputy Attorney General
Auison P. LANDRY
ANTHONY P. MEREDITH
Assistant Attorneys General
OrricE Or THE ATTORNEY GENERAI
900 East Main Street
Richmond, VA 23219
(804) 786-2436
Counsel for Respondents
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
In Wallace v. Jaffree, 472 U.S. 38, 56 (1985), the Court
held that an Alabama minute of silence law was invalid
because it “was not motivated by any clearly secular
purpose - indeed, the statute had no secular purpose.”
Does the holding in Wallace require invalidation of Vir-
ginia’s minute of silence law, which has a different text,
different legislative history and different record of imple-
mentation?
li
TABLE OF CONTENTS
Page
GPUIESTION, PIRI sik vis ics cnc ken cick i
TABLE OF CO a seae sSlaea ice esc: ii
TARAS OR ALSTIOITI ois eink cdc deciea dine iii
SICA DIE 6 wis kcn OeceReeweeesaee en de 1
STATEMENT OF THE CAGE. foo ceo oicdidevecacs 1
The Act Has a Successful Record ................ 3
Discrimination Against Religious Expression........ 5
The 2000 Amendment Was Motivated by Secular
i er er ar Ee 7
The Amended Act Is Being Implemented
i PORE Te Pre re nny a ie 10
REASONS FOR DENYING WRIT ....-............. 11
i Se Pa eae cae rein Sng 11
I. THE DECISION OF THE COURT OF APPEALS
DOES NOT CONFLICT WITH WALLACE v. JAF-
FPR « + «0004 kw 50/5 EN Ra REE ene ae 12
1. Wallace: A Challenge to Everson ........... 12
2. This Case Is Too Fact-Specific To Merit
Certiorari...... vi A056 SOD N RAM AREA RARE Bae S 17
3. The Virginia Law Has Secular Purposes... 19
II. THERE IS NO CONFLICT BETWEEN THE
RESULTS IN ALABAMA AND VIRGINIA..... 23
III. CERTIORARI IS NOT NEEDED TO RESOLVE
QUESTIONS ABOUT DISCERNING LEGISLA-
SEG WRGNCE 5 s5xoa cameeetee cores 27
CONCLIMION «cc ee a oe 30
ili
TABLE OF AUTHORITIES
Page
CASES
Beck v. McElrath, 548 F. Supp. 1161 (M.D. Tenn.
REPO Cae Vases Si coks ss so ecucds oisare coc 25
Board of Educ. of Westside Comm. Schools v. Mergens,
Sct, econ ll ae, AEE ee ena EMS 19
Bown v. Gwinett Co. Sch. Dist., 112 F.3d 1464 (11th
NE VV Ad ds kane e is koas betes keene 26, 27
Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997),
cert. denied, 523 U.S. 1024 (1998) .................. 26
Committee for Public Education & Religious Liberty v.
Nyquist, 413 U.S. 756 (1973)...............00.000.. 30
Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 2, 20
Engel v. Vitale, 370 U.S. 421 SEEN Sosa ok-cae heh cae ec: 20
Everson v. Board of Educ., 330 U.S. 1 oy 12, 30
Jaffree v. James, 544 F. Supp. 727 (S.D. Ala.
PIERS CD AS Sine nk heen un'eu 6cdsok6 bob alee cece 13, 14
Jaffree v. Bd. of Sch. Comm'rs of Mobile County, 554
F. Supp. 1104 (S.D. Ala. 1983) .................... 13
Karcher v. May, 484 U.S. 72 (1987)................... 25
Lemon v. Kurtzman, 403 U.S. 612 (1971).......... passim
Lynch v. Donnelly, 465 U.S. 668 (1984)........ 18, 19, 29
May v. Cooperman, 780 F.2d 240 (3rd Cir. 1985) ...25, 26
McGowan v. Maryland, 366 U.S. 420 (1961)........... 30
NAACP v. Hampton County Election Comm'n, 470
SE PM AG hk s ecb elw vidc ed dl iss ckedoasie 9
iv
TABLE OF AUTHORITIES - Continued
Page
Santa Fe Sch. Dist. v. Doe, 530 U.S. 290 (2000)....... 28
School Dist. of Abington Township v. Schempp, 374
TFG. 209 CAGES) oc cccccnvacisseccascnccessosesoues 28
Shaw v. Commonwealth, 9 Va. App. 331, 387 S.E.2d
FOR CIID oa oc va cendecieasudcccacdacneccvesasesses 21
Stone v. Graham, 449 U.S. 39 (1980)...........-.-: 28, 29
Tilton v. Richardson, 403 U.S. 672 (1971) .........++-- 30
Wallace v. Jaffree, 472 U.S. 38 (1985) .......----- passim
Wallace v. Jaffree, 466 U.S. 924 (1984) .......-.-- eee 13
Walter v. West Virginia Bd. of Educ., 610 F. Supp.
1169 (S.D. W. Va. 1985)..........cceccccceecceeces 25
STATUTES
Alabama Code § 16.1-20............ eee eeeeeeee 12, 24
Alabama Code § 16.1-20.1 ..........-.002ee0++++ passim
Alabama Code § 16.1-20.2 .......... sees ee eee eeees 12
Ga. Code Ann. § 20-2-1050(c) .........- eee e eee eeee 27
Virginia Code § 22.1-200........-. 6. esse eee eee eee 22
Virgins Codie § R24-Q010. «2.022050. .<-0-naseeseace: 22
Virginia Code § 22.1-202.......-.. 6. eee e cere eee ees 22
Virginia Code § 22.1-203........-..--+seeeeeeees passim
Virginia Code § 22.1-207.1 .........- eee eee eee ee eeees 22
Virginia Code § 22.1-208.01 ............- sere eee eee 22
Virginia Code § 22.1-253.13:1 et seq.......-.-+++++++: 22
Re ee eee ee ee ee ee
Vv
TABLE OF AUTHORITIES - Continued
Page
Virginia Code § 22.1-280.3 ........ seer sere cece cere ees 5
1976 Va. Ate, Gi. BOS an cncc cad seciav ese tindineseends 3
2000 Va. Acts, CR. 1022 ......cccsccncccscvnsessccsess 3
20 U.S.C. §§ 4071-4074. ...... cece eee eee eee eee 6
Fed. BR. Civ. Pro. S6lO) onc ccccscscnccccssscssndanccause 9
Sup. Ct. R. 14.1(a)...--. eee eee eee eee eee eee es 18, 28
1
BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI
This brief is filed by the Attorney General of Virginia
on behalf of all respondents (collectively, “the Common-
wealth”) in defense of the Virginia minute of silence
statute, Va. Code § 22.1-203 (“the Act”).
INTRODUCTION
For a quarter century, Virginia law has authorized
local school divisions to establish a daily minute of
silence in their classrooms. In 2000, the law was amended
in two ways. First, instead of authorizing school divisions
to have a minute of silence, the law now requires them to
do so. Second, Virginia’s Attorney General now has
responsibility for defending the law. No other changes
were made.
The Act does not require students to do anything or
say anything or hear anything. It does not require them to
make any gesture or acknowledgment. It only requires
them to stay in their seats, to remain silent and not to
distract their classmates. This is the same rule that gov-
erns students everywhere for most of the school day. The
one difference is this: just as the students must remain
silent, so must the teacher. For one minute - 60 seconds -
nobody will say anything. The students will be left to
themselves. If they wish, they may meditate, reflect or
pray silently. Or, they may read or look out the window.
They may do anything they want, or nothing at all. The
only requirement is that they must stay seated and silent
and not distract anyone else. This is not a lot to ask, and
it is not unconstitutional. There is nothing to fear from a
classroom of silent, thoughtful children.
STATEMENT OF THE CASE
There is nothing unusual about the Act. The Virginia
law is one of twenty-five minute of silence statutes identi-
fied by Justice O’Connor in Wallace v. Jaffree, 472 U.S. 38,
.
2
70, 71, n.1 (1985) (O’Connor, J., concurring in judgment)
(citing Va. Code § 22.1-203). As she noted, the “typical”
statute allows students to “meditate, pray or reflect on
the activities of the day.” Id. at 70-71. All nine Justices in
Wallace strongly indicated that such statutes are constitu-
tional so long as they have a secular legislative purpose.
As amended in 2000, the Act has three secular legisla-
tive purposes: (1) implementing constitutional guarantees
of religious liberty in public schools; (2) advancing ped-
agogical goals, e.g., good order and discipline, an oppor-
tunity for introspection, and improved student focus on
the day’s educational activities; and (3) extending bene-
fits of a minute of silence statewide while providing a
defense to any lawsuit against it. In the context of an
Establishment Clause challenge, this Court has approved
a three-part inquiry for determining the purposes that
motivated legislation. A secular purpose may be shown
by “[1] the statute on its face, [2] its legislative history, or
[3] its interpretation by a responsible administrative
agency.” Edwards v. Aguillard, 482 U.S. 578, 594 (1987). As
shown by the following review of the evidence, each of
these areas of inquiry confirms the secular purposes of
the Act.?
1 See Wallace, 472 U.S. at 56, 59 (Stevens, J., majority
opinion); Id. at 66 (Powell, J., concurring); Id. at 76, 84
(O’Connor, J., concurring in judgment); and Id. at 84 (Burger,
Ch. J., dissenting); Id. at 90 (White, J., dissenting); Id. at 91
(Rehnquist, J., dissenting).
2 While the factual review is set forth largely in
chronological order, many paragraphs relate directly to the
three areas of inquiry prescribed by Edwards. For the face of the
statute, see [{ 1 and 2; for legislative history, see {J 1, 2, 10, 11,
12, 13, 14; and for agency interpretation, see [{ 6, 15 and 16. For
evidence of real world conditions corroborating the
genuineness of the asserted secular purposes, see {{ 3, 4,5, 7, 8
and 9.
3
The Act Has a Successful Record.
1. Origin and Text: Virginia enacted its minute of
silence law in 1976. See 1976 Va. Acts, ch. 103. Until 2000,
the Act authorized - but did not require —- local school
divisions to establish a minute of silence. Here is the text,
showing changes made by the 2000 amendment:
§ 22.1-203. Daily observance of one minute of
silence.
In order that the right of every pupil to the free
exercise of religion be guaranteed within the
schools and that the freedom of each individual
pupil be subject to the least possible pressure
from the Commonwealth either to engage in, or
to refrain from, religious observation on school
grounds, the school board of each school divi-
sion is—atttherized—te shall establish the daily
observance of one minute of silence in each
classroom of the division.
Where During such one-minute period of silence
ts—instituted, the teacher responsible for each
classroom shall take care that all pupils remain
seated and silent and make no distracting dis-
play to the end that each pupil may, in the
exercise of his or her individual choice, medi-
tate, pray, or engage in any other silent activity
which does not interfere with, distract, or
impede other pupils in the like exercise of indi-
vidual choice.
The Office of the Attorney General shall intervene
and shall provide legal defense of this law.
2000 Va. Acts, ch. 1022. (Italics show additions; strike-
throughs show deletions.)
2. Petitioners’ Faulty Discussion: Petitioners
repeatedly delete the term “any” from the statutory
phrase “any other silent activity,” replacing it with
ellipsis and thus minimizing the scope of permitted activ-
ities. Pet. at (i) and 3. Petitioners also suggest the legisla-
ture showed doubts about the law’s constitutionality
+
because it provided for a legal defense through the Attor-
ney General. Pet. 4. This is a non sequitur. The legislature
simply recognized that some announced opponent of the
Act - such as the ACLU - would likely bring a costly but
misguided lawsuit. See letter of M. Earley to R. McDon-
nell, Mar. 6, 2000, J.A. 345;3 Senate Transcript, Feb. 1,
2000, J.A. 338-39. This petition bears out that prediction.
3. The Act Has Worked Well: Evidence about how
the Act has worked was provided by the State Superin-
tendent of Public Instruction, Dr. JoLynne DeMary. She
testified that, between 1976 and 2000, at least 20 local
school divisions chose to establish a minute of silence.
J.A. 400.4 There is no evidence anyone used it as a gov-
ernment prayer exercise. The State Superintendent’s sur-
vey of school principals did not reveal any peer-on-peer
harassment or other problems. Fourth Cir. Op., Pet. 5a.
Students confirmed that the minute of silence “worked
well and has not caused anyone a problem.” J.A. 438, 440.
4. Acknowledgement by Petitioners: Petitioners
agreed the Act has pedagogical benefits, telling the dis-
trict court: “[I]t’s a good thing for children to start the
day with some reflection. It is probably a very good
thing.... [I]t would help... every... child to do that.”
Fourth Cir. Op., Pet. 17a, n.5.
5. Discipline and Focus Improved: As the State
Superintendent noted, students often arrive at school in
an emotional state not conducive to discipline or a focus
on learning. She said “[a] minute of silence works as a
good transition, enabling students to pause, settle down,
and focus on the day ahead.” It is “a good classroom
management tool and makes for a better school day.” J.A.
3 Where possible this brief will cite the opinion of the court
of appeals (Pet. 1a-25a), or opinion of the district court (Pet.
53a-68a). Where necessary, the brief will cite the joint appendix
used in the court of appeals.
4 Petitioners incorrectly report “fewer than 20.” Pet. 3.
5
401.5 A minute of silence was helpful even before the
events of September 11, and is likely to be even more so
in light of the present national crisis.
6. Official Guidelines on the Act: In 1994, the Gen-
eral Assembly required the State Board of Education to
develop “guidelines on constitutional rights and restric-
tions relating to prayer and other religious expression in
the public schools .. . ” Va. Code § 22.1-280.3. The Board
included guidelines about the Act in terms that further
document its secular purpose:
Public schools may provide students ... with a
minute of silence to collect themselves and put
their upcoming tasks in meaningful perspective
for the individual student. A brief minute of
silence may also fulfill other secular objectives,
including maintenance of discipline.
* * *
The teacher may not indicate his or her views on
whether students should use the time to pray or
not to pray. The teacher should also not use the
time to pray aloud in front of other students,
nor permit any other student, or group of stu-
dents, to pray aloud.
Fourth Cir. Op., Pet. 5a.
Discrimination against Religious Expression.
7. Misunderstanding the Constitution: Public
school administrators and teachers often have the misper-
ception that student religious expression is unconstitu-
tional or may be prohibited at their discretion.
a. The State Superintendent testified that:
[TJeachers, principals and other school adminis-
trators often believe (i) that the separation of
5 On this point and many others, the testimony of Dr.
DeMary was corroborated by the testimony of Dr. William C.
Bosher, Jr., a former State Superintendent. J.A. 411-413.
6
church and state prevents them from allowing
students to engage in various forms of religious
expression in the public schools or (ii) that they
must restrict such expression in order to avoid
the risk of time-consuming and expensive law-
suits.
J.A. 402.
b. Jay Alan Sekulow, Esq., a nationally-known
expert on religious discrimination, gave this opinion:
[T]here is a widespread perception among pub-
lic school administrators and teachers - includ-
ing those in Virginia - that religious expression
and the free exercise of religion by students in
the public schools is constitutionally impermis-
sible or is subject to prohibition at the discretion
of school authorities.
J.A. 417.
c. When considering the Equal Access Act (20
U.S.C. §§ 4071-4074), Congress reported testimony about
widespread religious discrimination in public schools. See
Excerpts, “Equal Access: A First Amendment Question,”
Hearings Before Committee on Judiciary, U.S. Senate,
98th Congress, 1st Sess. S. 815 and S. 1059. J.A. 420-24.
d. President Bill Clinton also recognized the prob-
lem of religious discrimination:
[S]ome students in America have been prohib-
ited from reading the Bible silently in study
hall. ... Some students have been prevented
even from saying grace before lunch.
* * *
Some school officials and teachers and parents
believe that the Constitution forbids any reli-
gious expression at all in public schools. That is
wrong.
“Remarks by the President on Religious Liberty in Amer-
ica,” Vienna, Virginia, July 12, 1995, J.A. 393.
7
8. Incidents in Virginia: Virginia is not immune
from this discrimination. “(C]Jonstitutional rights regard-
ing religious liberty are often misunderstood. This misun-
derstanding has led to many instances in the
Commonwealth where there has been discrimination
against religious expression in the public schools.” Dist.
Ct. Op., Pet. 64a; See Sekulow, J.A. 417-18 (listing exam-
ples).
9. Avoiding Misinformation: The State Superinten-
dent testified that “enactment of a-minute of silence
statute, without making specific reference to prayer as a
permissible option, would likely lead to situations in
which (i) some students would not be advised that prayer
is a permissible option under the statute, and (ii) some
students would actually be advised that prayer is not a
permissible option.” J.A. 403.
The 2000 Amendment Was Motivated
by Secular Purposes.
10. Statement by Chief Sponsor: The Act was
amended by SB 209, whose chief sponsor was Senator
Warren E. Barry. His floor speech reminded his colleagues
of the secular purposes of the bill:
[T]he purpose of the Bill [as] has been stated and
restated is not a religious crusade. It’s not to try and
' re-inject prayer into the public school system. The
primary thing was out of the frustrations that
many of us have felt based on the violence in
some of our schools, such as Columbine... .
[W]e’re not putting prayer on a higher pedestal
or a lower pedestal than meditate and reflect.
But if students would just spend one minute to
reflect on who they are, what they’re doing and
where they’re going. The word prayer in there was
put in there so prayer would not be discriminated
against.
8
Senate Transcript, Jan. 31, 2000, Fourth Cir. Op., Pet. 7a
(emphasis added).®
[I]ntrospection, by dictionary definition, means
contemplation of one’s own thoughts, feelings
and purpose. [I]f I were to accomplish anything
with this Bill... I would hope that it would generate
some introspection on the part of some students in
our public schools. Young people today are not
afforded the opportunity for introspection
because of today’s technology . . . and other
things that occupy their time from the time they
get up in the morning to the time they go to bed
at night. This would provide that opportunity.
Senate Transcript, Feb. 1, 2000, Dist. Ct. Op., Pet. 57a _
(emphasis added).
11. Petitioners Misstate Defeated Amendment:
Petitioners say the General Assembly “rejected a pro-
posed amendment to the bill that would have removed
the specific reference to prayer as one of two stated silent
activities in which students may engage.” Pet. 4
(emphasis added). They misstate the facts. When Senator
Edward Houck offered his floor amendment, the bill lis-
ted “meditation, prayer and reflection.” J.A. 330. His
amendment proposed striking all three activities. It was in
opposing this amendment that one of the bill’s many co-
sponsors said students “simply will be quiet with no
purpose.” The co-sponsor also noted that, even without
the proposed deletion, the minute of silence was non-
sectarian. Fourth Cir. Op., Pet. 7a. Senator Houck agreed
the legislation was “pure in terms of [its] intent.” Id.”
6 Unlike the Congressional Record, which sometimes records
speeches that no one gave - or that were given to nearly empty
chambers — the speeches here were transcribed from video tapes
_ of actual proceedings, and were delivered to chambers that
were full or nearly so.
7 In the proceedings below, petitioners relied on unsworn
hearsay contained in newspaper clippings and alleged to reflect
9
12. Drafting by Attorney General: When SB 209
reached the House of Delegates, the bill took a more
streamlined approach.8 This approach, which became law,
was drafted by the Virginia Attorney General, who wrote:
[A]s the statute explains, the purpose is to guar-
antee “the free exercise of religion” and to guar-
antee “that the freedom of each individual pupil
[is] subject to the least possible pressure from
the Commonwealth either to engage in, or to
refrain from, religious observation on school
grounds.”
* * *
Using one minute of each school day for the
purposes contemplated by this law would pro-
vide a moment for students to collect their
thoughts, focus on the upcoming day, and exer-
cise self-respect and discipline. In short, this
legislation would contribute to quality by pro-
moting a positive educational environment for
our children.
Letter of M. Earley to R. McDonnell, Mar. 6, 2000, Dist.
Ct. Op., Pet. 58a.9
statements by individual legislators. Such materials are
inadmissible and the Commonwealth duly noted its objection.
While petitioners appear to have abandoned reliance on such
materials, the Commonwealth preserves its objection if such
improper materials resurface. See Fed. R. Civ. Pro. 56(e).
8 Petitioners are again mistaken when they say the
“General Assembly approved the minute of silence law in the
form in which it was introduced.” Pet. 3.
9 This Court has said that “deference should be accorded to
[federal] Attorney General’s construction of [federal statute],
especially in light of the extensive role played by the Attorney }
General in drafting the statute and explaining its operation to
Congress.” NAACP v. Hampton County Election Comm'n, 470 U.S.
166, 179 n.29 (1985). The same deference should be afforded to
Virginia’s Attorney General in his interpretation. of the state
statute he drafted and explained to the General Assembly.
10
13. Floor Statement by House Manager: Speaking
before the vote, the House manager of SB 209, Delegate
Robert F. McDonnell explained that the bill was based on
“sound public policy” and the secular purposes of “main-
taining good order and discipline, creating student focus
on the activities at hand and assisting the teachers in
beginning the day with a period of calm which would
lead to better discipline in the classroom.” House Tran-
script, Mar. 6, 2000, Fourth Cir. Op., Pet. 8a. Relying on
both expertise and experience, he added “[mJany of the
experts certainly would agree and ... it has borne out in
the localities that have implemented it, that this certainly
also helps not only with the focus but also perhaps with
stress reduction in having a period of concentrated silence
as they begin the school day.” Id. (emphasis added).
14. Statement by Governor: SB 209 was signed into
law by Governor James S. Gilmore, III, who also recog-
nized the bill’s secular purposes, saying it would “restore
a sense of calm and civility in public schools by offering
students a peaceful minute each day to reflect upon their
studies, to collect their thoughts, or, if they so choose, to
bow their heads and pray.” Sine Die Statement to General
Assembly, Fourth Cir. Op., Pet. 8a (emphasis added).
Petitioners misstate what the Governor said. They quote
only his last five words. Pet. 4, 11-12.
The Amended Act Is Being Implemented Neutrally.
15. Statement by State Superintendent: In June
2000, the State Superintendent sent local school divisions
a memorandum providing guidance on the amended Act.
She said, “[This] legislation reflects the view that our
young, and society as a whole, would be well served if
students were afforded a moment of quiet reflection at
the beginning of each day.” Fourth Cir. Op., Pet. 9a. The
memorandum also suggested that teachers introduce the
minute by saying, “As we begin another day, let us pause
for a minute of silence.” Id. She also told local school
11
divisions that they should “caution teachers and adminis-
‘trators not to suggest or imply that students should or
should not use that time for prayer. . . . This time is not
intended to be and shall not be conducted as a religious service
or exercise, but considered as an opportunity for a moment of
silent reflection on the anticipated activities of the day.” J.A. ~
361 (emphasis added).
16. Statement by Attorney General: In June 2000,
the Virginia Attorney General also underscored the need
for religious neutrality. He said, “The decision whether to
pray must be the decision of the student, not the decision
of teachers or administrators, and not subject to govern-
ment pressure.” Statement of M. Earley, June 14, 2000,
J.A. 362. There is no evidence that the Act is being imple-
mented in violation of the guidance from the State Super-
intendent and Attorney General.
REASONS FOR DENYING THE WRIT
Summary
Petitioners say no secular purpose can be found here
because none was found in Wallace. But Wallace did not
hold — nor even hint - that minute of silence statutes are
per se unconstitutional. Indeed, this Court expressly
rejected that notion. The decision in Wallace was fact-
specific. It was driven by Alabama’s concession — indeed,
its boast - that the “sole purpose” of its law was “to
encourage a religious activity.” Id. at 41, 57. The facts here
are different. The result must likewise be different.
Petitioners say that, having struck the Alabama law,
this Court will create a “constitutional anomaly” if it lets
the Virginia law stand. Pet. 18. Such rhetoric is based on
the erroneous assumption that the Alabama and Virginia
statutes are identical. They are not. They have different
texts, different legislative histories and different records
of implementation. In short, they have different purposes,
and that difference compels different results.
Finally, petitioners say that more guidance is needed
on how to assess legislative purpose. They make such a
12
claim because, under the guidance given in Wallace, they
clearly lose. Their effort to redefine the first prong of the
Lemon test goes beyond their question presented, lacks
support in this Court’s jurisprudence, and, in any event,
cannot overcome the strong evidence of secular purposes
presented by the Commonwealth.
I. THE DECISION OF THE COURT OF APPEALS
DOES NOT CONFLICT WITH WALLACE ov. JAF-
FREE.
“The factual record of the case before us
stands in stark contrast to the one
presented to the Supreme Court in Wallace.”
Fourth Cir. Op., Pet. 23a.
The petition does not seek to resolve a conflict among
the circuits, nor does it otherwise offer this Court an oppor-
tunity to address important but unresolved questions of
federal law. As shown by its single question presented, the
petition is based solely on the theory that the decision by the
court of appeals conflicts with Wallace. Petitioners are mis-
taken. Application of Wallace principles to the distinct facts of
this case supports — indeed, compels — the decision reached
below.
1. Wallace: A Challenge to Everson.
The history of Wallace is important, and it bears repeat-
ing. In Wallace, Alabama used a minute of silence statute as a
test case for challenging Everson v. Board of Educ., 330 U.S. 1
(1947), which held that the Establishment Clause applies to
the States. Leading up to Wallace, Alabama passed three
laws: (1) a 1978 statute (§ 16-1-20) requiring a minute of
silence “for meditation” in public elementary schools; (2) a
1981 statute (§ 16-1-20.1) authorizing a minute of silence “for
meditation or voluntary prayer” in all public schools; and (3)
a 1982 statute (§ 16-1-20.2) authorizing public school teachers
to lead students in prayer, including a prayer written by the
Alabama legislature. Wallace, 472 U.S. at 40. All three statutes
ant
13
were challenged in the same lawsuit. At the preliminary
injunction stage, the district court found the first statute
to be unobjectionable, but enjoined the other two because
the sole purpose of each was “to encourage a religious
activity.” Jaffree v. James, 544 F. Supp. 727, 732 (S.D. Ala.
1982); see also Wallace, 472 U.S. at 41.
After trial on the merits, the district court did not
change its interpretation of legislative purpose, but took
it upon itself to overturn Everson, as Alabama had sought.
Remarkably, the district court declared that “the United
States Supreme Court has erred” and that “the establish-
ment clause . . . does not prohibit the state from establish-
ing a religion... . ” Jaffree v. Bd. of Sch. Comm'rs of Mobile
County, 554 F. Supp. 1104, 1128 (S.D. Ala. 1983); see also
Wallace, 472 U.S. at 41.
Obviously, such a result could not stand. On appeal,
the Eleventh Circuit reaffirmed that States are subject to
the Establishment Clause and ruled that the two statutes
originally enjoined by the district court — the 1981 minute
of silence statute and the 1982 teacher prayer statute -—
violated that constitutional provision.10 Jaffree v. Wallace,
705 F.2d 1526 (11th Cir. 1983). The Eleventh Circuit's
decision striking down the teacher prayer was affirmed
summarily. Wallace v. Jaffree, 466 U.S. 924 (1984).
Granting certiorari on the 1981 minute of silence law,
this Court predictably reiterated that the Establishment
Clause applies to the States, and that lower courts must
adhere to Supreme Court precedent. Wallace, 472 U.S. at
41-55. Reaffirming the Lemon test, the Court again made it
plain that a statute with a dual legislative purpose — part
secular and part religious - would pass the first prong,
but that “a statute must be invalidated if it is entirely
motivated by a purpose to advance religion.” Wallace, 472
10 The challenge to the original, 1978 minute of silence
statute was abandoned. See Wallace, 472 U.S. at 40. Thus, unlike
the results petitioners seek here, Alabama still had a minute of
silence statute even after the decision in Wallace.
14
U.S. at 56 (emphasis added, citations omitted). With this
standard in hand, the Court turned to the Alabama stat-
ute and struck it down on the grounds that “the enact-
ment of [the 1981 law] was not motivated by any clearly
secular purpose — indeed, the statute had no secular pur-
pose.” Id. at 56 (emphasis added). In reaching this result,
the Court relied upon facts having no counterpart here:
a. In Alabama, “[t]he sponsor . . . inserted into the
legislative record - apparently without dissent — a state-
ment indicating that the legislation was an ‘effort to
return voluntary prayer’ to the public schools.” Id. at
56-57. When asked at trial whether he had any other
purpose for the legislation, he proclaimed, “No, I did not
have no other purpose in mind.” Id. at 57. In stark con-
trast, the chief sponsor of the Virginia law made it clear
to his colleagues that “the purpose of the Bill . . . is not a
religious crusade. It’s not to try and re-inject prayer into
the public school system.” Fourth Cir., Op., Pet. 7a
(emphasis added.)!!
b. As part of its anti-Everson strategy, Alabama
relied at trial on the sponsor’s bold assertion of a reli-
gious purpose, and “did not present evidence of any
secular purpose.” 472 U.S. at 57 (emphasis added).
Indeed, Governor Fob James went so far as to tell the
district court that it had “no jurisdiction because prayer
flows from the Almighty.” Jaffree, 544 F. Supp. at 729.
Virginia has shown no contempt for the Establishment
1 Petitioners try to denigrate the significance of the
sponsor’s pre-enactment floor speech. In doing so, they misread
Justice O’Connor’s statement in Wallace that “little, if any
weight [should be given] to this sort of evidence.” Pet. 18,
quoting Wallace, 472 U.S. at 77 (O’Connor, J., concurring)
(emphasis added). Petitioners fail to notice that the word “this”
refers to “testimony elicited from [the sponsor] during a [post-
enactment) preliminary injunction hearing.” Id. It does not refer
to statements made by the chief sponsor during the legislative
process to influence the votes of others.
15
Clause, and has defended the Act with strong evidence of
its secular purposes. See supra at 3-11.
c. Between the trial and argument before this Court,
a change in Alabama governors brought a change in
litigation strategy. Unlike his predecessor, Governor
George Wallace argued that the reference to “prayer” in
the 1981 law was “a permissible accommodation of reli-
gion.” 472 U.S. at 56-57, n.45. Such a belated discovery of
a secular purpose was too contrived to be credible. While
the new rationale was rejected, this Court did not say that
such accommodation was invalid per se. Id.
In Virginia, the accommodation rationale is nothing
new; it has been part of the statutory text since the
original law was enacted in 1976. And, unlike Alabama,
Virginia has shown that “constitutional rights regarding
religious liberty are often misunderstood” and that our
state has experienced “many instances” of “discrimina-
tion against religious expression in the public schools.”
Dist. Ct. Op., Pet. 64a. Moreover, Virginia seeks to accom-
modate not just prayer, but also non-religious forms of
preparing oneself for the day ahead; and, unlike Ala-
bama, it has only one statute by which to do so.!2
d. When Alabama passed its 1981 minute of silence
statute, its 1978 law was still on the books. The earlier
law “already protected” what the Court said was “every
student’s right to engage in voluntary prayer during an
appropriate moment of silence during the schoolday.” 472
U.S. at 59. Under these facts, the Court emphasized that
12 Petitioners complain that a minute of silence does not
accommodate those prayer styles that cannot be performed
while seated and silent and making no distracting display. Pet.
9,n.2. The same is true of all minute of silence laws, yet Wallace
does not say that such laws are invalid per se. Moreover, none of
petitioners has testified that his or her religion precludes silent,
seated, non-distracting prayer.
16
Alabama did not identify any secular purpose not fully
served by the earlier law. Id.15
By contrast, Virginia has only one minute of silence
statute, and there were obvious secular purposes for
changing that statute in 2000. Under the local option
provision of the original statute, many local divisions
were not affording their students a minute of silence. For
these students, the “right to engage in voluntary prayer
during an appropriate moment of silence” was not being
protected. They were likewise being denied the other,
pedagogical benefits of a minute of silence. The 2000
amendment solved these problems.
e. Alabama’s implementation of its “minute of
silence” was accompanied by numerous instances of
teachers leading students in vocal prayer. See Wallace, 472
U.S. at 44, 45. No similar facts are present here. Instead,
Virginia’s administrators have a record of making sure
that the minute of silence is not conducted as a govern-
ment prayer exercise. See supra at 4, 5, 10 and 11.
In sum, the Wallace Court was faced with a trial
record in which Alabama insisted (1) that the Establish-
ment Clause does not apply to the States, and (2) that the
1981 law had only a religious purpose. Understandably,
this Court felt it had no choice but to strike down the
statute. By contrast, Virginia does not seek to flout the
Establishment Clause, and there is compelling evidence
that its law does have secular purposes. See supra at 3-11.
In fact, its purposes are wholly secular. The unusual
circumstances that compelled the result in Wallace have
no counterpart here. “Indeed, the Supreme Court went
13 It was in this specific context that the Court found
Alabama’s “addition” of the word “prayer” to be motivated by a
religious purpose. Contrary to petitioners’ assertion, the Court
never said that mere “inclusion” of the word is problematic. Pet.
7. On the contrary, a majority of the Wallace Court made it plain
that there is no per se rule against the word “prayer” in a minute
of silence statute, and that such statutes should pass muster so
long as they have a secular purpose. See infra at 21-22.
ee
17
out of its way to distinguish that case from the one now
before us.” Fourth Cir. Op., Pet. 24a.
2. This Case Is Too Fact-Specific to Merit Certiorari.
By framing their single “question presented” in terms
that rely exclusively on Wallace, petitioners have defined
their case so narrowly as to make it an inappropriate
vehicle for further development of this Court’s jurispru-
dence. This is so for at least two reasons:
a. As petitioners acknowledge, “the statute in Wal-
lace was invalidated . . . solely because of its impermissi-
ble purpose.” Pet. 13 (emphasis added). In other words,
the Court based its decision entirely on the first prong of
the Lemon test, which requires a secular legislative pur-
pose.!4 The other two prongs were not addressed in Wal-
lace, and thus are not at issue here.
b. The meaning of the first prong is likewise not an
issue here. Wallace was emphatic that statutes with dual
legislative purposes — part secular and part religious -
would pass the first prong.!>5 472 U.S. at 56. By permitting
dual motives, Wallace echoed Lynch v. Donnelly, 465 U.S.
14 The three prongs of the Lemon test are:
First, the statute must have a secular legislative
purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion;
finally, the statute must not foster an excessive
government entanglement with religion.
Lemon v. Kurtzman, 403 U.S. at 612, 613 (1971) (quotation marks
and citations omitted). Petitioners’ earlier claims under the
second and third prongs are implicitly abandoned.
15 While the Commonwealth does not wish to lose sight of
the applicable standard, it nevertheless must emphasize that the
purposes of the Act are wholly secular. Thus, the standard
described in Wallace allows far more latitude than the
Commonwealth needs in order to prevail. This also makes the
case inappropriate for certiorari.
18
668 (1984), which said: “The Court has invalidated legis-
lation . . . on the ground that a secular purpose was
lacking, but only when it has concluded there was no
question that the statute or activity was motivated wholly
by religious considerations.” Id. at 680 (emphasis added).
“Were the test that the government must have ‘exclu-
sively secular’ objectives, much of the conduct and legis-
lation this Court has approved in the past would have
been invalidated.” Id. at 681, n.6.14° The Fourth Circuit
expressly relied on Wallace and Lynch for its understand-
ing of the first prong. Fourth Cir. Op., Pet. 14a-15a.
Petitioners’ arguments about dual motives have been
a moving target. Despite Wallace and Lynch, they told the
district court that “the legislative purpose must be wholly
secular in order for the statute to pass the first prong” of
Lemon. See Dist. Ct. Op., Pet. 63a (emphasis added). In the
court of appeals, petitioners retreated from this extreme
position. They failed to articulate any alternative stan-
dard, but refused to accept the standard found in Wallace
and Lynch. Now, by framing their single “question pre-
sented” in terms that rely solely on Wallace, petitioners
are bound by Wallace’s favorable treatment of dual
motives. They cannot properly use this case as a vehicle
for challenging that standard. Rule 14.1(a) (“Only ques-
tions set out in the petition, or fairly included therein,
will be considered by the Court.”)
In order to show that.the decision below conflicts
with Wallace, they must show that the Virginia law — like
the Alabama law - has no secular purpose. It is doubtful
whether such a highly fact-specific inquiry would be
worthy of certiorari in any case. Given the record of this
case, the task is wholly futile.
16 Some laws or practices having dual purposes may also
have impermissible effects so as to violate the second prong, but
they do not run afoul of the first.
19
3. The Virginia Law Has Secular Purposes.
The Commonwealth has already reviewed the rich
array of facts that establish the secular purposes of the
Act. See supra at 3-11. The court of appeals did so as well.
See Fourth Cir. Op., Pet. 5a-10a, 14a-17a, 20a-24a. Here the
Commonwealth will address those five points empha-
sized by petitioners in their effort to distract attention
from those secular purposes.
a. Petitioners incorrectly assert the text of the stat-
ute fails to articulate any secular motive. Pet. 9. They fail
to refute the two secular motives found in the text by the
court of appeals: (1) permitting nonreligious meditation,
and (2) accommodating religion. “Even though religion is
thus the object of one of the statute’s purposes, the
accommodation of religion is itself a secular purpose in
that it fosters the liberties secured by the Constitution.”
Fourth Cir. Op., Pet. 16a.
‘Petitioners contend that the right of students to pray
silently in the schools “required no accommodation
because it was never restricted.” Pet. 8. This assertion
does not square with the record, which shows a tendency
toward discrimination against religious expression in the
public schools. See supra at 5-7. Many of our nation’s laws
are intended to implement constitutional guarantees. See,
e.g., Board of Educ. of Westside Comm. Schools v. Mergens,
496 U.S. 226, 239 (1990) (upholding Equal Access Act,
despite pre-existing First Amendment guarantees, and
noting that Congress “perceived widespread discrimina-
tion against religious speech in the public schools.”) -
Besides, discrimination is not the only concern. The
beginning of the school day is an especially important
time for those who wish to engage in mental or spiritual
preparation before launching into their studies. It is hard
for students to focus their thoughts if they are subjected
to distractions by fellow students or the morning
announcements. The Act helps students avoid these prob-
lems. In any event, this Court has already spoken favora-
bly about statutes that “merely protect[ ] every student’s
20
right to engage in voluntary prayer during an appropri-
ate moment of silence during the schoolday.” Wallace, 472
U.S. at 59. Thus, Wallace supports the Commonwealth,
not petitioners.
Petitioners also fault the Act because its text does not
mention other secular purposes on which the Common-
wealth relies. Pet. 9, n.3. But there is no rule requiring all
purposes of a law to be placed in the text in order to be
counted. On the contrary, Edwards requires a court to cast
a wider net by also looking at legislative history and
administrative interpretation. 482 U.S. at 594. In Wallace,
this Court looked beyond the four corners of the Alabama
statute in order to find its purposes, and petitioners
repeatedly ask the Court to do the same here. They
apparently want a double standard that will allow courts to
look beyond the text for religious motives, but not for
secular ones. Such a skewed approach is unwarranted.
b. Petitioners say the Act must have a religious
motive because the same session of the General Assembly
adopted a resolution, HJR 71, favoring a constitutional
amendment to allow voluntary school prayer, and thus
reverse Engel v. Vitale, 370 U.S. 421 (1962). Pet. 9. Yet, they
fail to explain how support for a constitutional amend-
ment — a perfectly legitimate exercise - can be equated
with unlawfully flouting this Court’s jurisprudence.
Moreover, there is nothing to connect the Act with HJR 71
other than coincidence of timing: both the resolution and
the amendment were passed the same year. The mem-
orandum explaining the Act to local school divisions
makes no mention of HJR 71, nor has Virginia otherwise
undertaken any campaign to link the two measures.
Finally, if there were a correlation of motives between the
two measures, one would expect to find a correlation of
votes. Petitioners fail to show any such correlation.
Instead, the record shows that the Senate amended the
Act by a vote of 28 to 11, while it approved HJR 71 by a
vote of 39 to 0. J.A. 441-42. In other words, regardless of
how they voted on amending the Act, every Senator pre-
sent voted for HJR 71. There is no correlation.
21
c. Petitioners again misstate the nature of the floor
amendment rejected by the General Assembly. Pet. 10.
There was never any attempt to delete just the word
“prayer.” See supra at 8. But, even if such a change had
been proposed, there would have been nothing improper
about rejecting it. As the chief sponsor of SB 209
explained: “The word prayer in there was put in there so
: ‘ prayer would not be discriminated against.” Fourth Cir.
Op., Pet. 8a. Moreover, the word has been in the Act since
it was originally enacted in 1976, and the 2000 amend-
ment left it untouched.!” Deleting the word would make
it appear that prayer is no longer a permitted activity.
“Legislative amendments are presumed as intended to
effect or change in the law. ... We will not read into the
statute language which the legislature purposefully
deleted.” Shaw v. Commonwealth, 9 Va. App. 331, 334, 387
S.E.2d 792, 794 (1990).
Petitioners’ objection to the word “prayer” is also at
odds with Wallace. Not a single Justice suggested that use
of this word was sufficient to strike down the Alabama
law. If it had been that simple, the Court would not have
spent so much time looking beyond the text of the statute
for evidence of legislative purpose. See Wallace, 472 U.S.
at 77. Moreover, Justices Powell and O’Connor both voted
to invalidate the law, but wrote separate opinions making
it plain they did not regard the word “prayer” as fatal.
Justice Powell emphasized that “Alabama’s purpose was
solely religious,” but that he “would vote to uphold the
Alabama statute if it also had a clear secular purpose.” Id.
at 65-66 (Powell, J. concurring) (emphasis added). The
clear implication is that no change in the text was
required, only a legitimate purpose. Justice O’Connor
observed that “[a] moment of silence law that is clearly
7 Petitioners have not alleged that there was any improper
motive in writing this language into the Act when it was
originally adopted in 1976, nor does the record contain evidence
of any improper motive. These omissions greatly complicate
petitioners’ case and, again, make it unworthy of certiorari.
22
drafted and implemented so as to permit prayer, medita-
tion, and reflection within the prescribed period, without
endorsing one alternative over the others, should pass
this test [of constitutionality].” Wallace, 472 U.S. at 64
(O’Connor, J., concurring) (emphasis added). These two
Justices, combined with the three dissenters who voted to
uphold the Alabama statute, constituted a majority for
the proposition that the word “prayer” is not fatal to a
minute of silence statute. “Indeed, to require a ban on the
use of religiously related terms would manifest a hostility
to religion that is plainly inconsistent with the religious
liberties secured by the Constitution.” Fourth Cir. Op.,
Pet. 25a.
d. Petitioners object to the 2000 amendment because
it replaces local discretion with decision-making at the
state level. Pet. 11. This preference for “home rule” is not
a concern of the Establishment Clause. Moreover, peti-
tioners fail to tell the Court that the General Assembly
has sweeping authority to provide direction to local
school divisions, and has often exercised that authority.}®
There is nothing sinister about the exercise of that same
authority here. Moreover, as the court of appeals noted,
[there is] no material distinction between the
1976 version of [the Act], in which a political
subdivision was authorized to impose a minute
of silence and the current statute where the State
itself imposed the minute of silence. Both are
18 See, e.g., Va. Code § 22.1-200 (mandating teaching of
specific subjects); § 22.1-201 (requiring all schools to teach
various specific documents of Virginia and United States
history); § 22.1-202 (mandating teaching history and principles
of United States and Commonwealth flags, including pledge of
allegiance and flag etiquette); § 22.1-207.1 (prescribing
curriculum guidelines regarding abstinence, human sexuality
and reproduction and sexually transmitted diseases);
§ 22.1-208.01 (requiring character education programs to foster
civic virtues) and § 22.1-253.13:1 - 253.13:8 (mandating
comprehensive standards of quality for local school divisions).
23
mandatory minutes of silence for the students
implicated, but neither is coercive in that the
affected students are left to choose how they
will use the minute of silence.
Fourth Cir. Op., Pet. 24a.
e. Finally, petitioners again misstate the Governor’s
remarks. Pet. 11-12. They quote him out of context, and
fail to note that the Governor viewed the overarching
purpose of the Act to be “restor[ing] calm and civility”, a
goal that is plainly secular. See supra at 10.
In sum, petitioners utterly fail to show that “the
statute ha{s] no secular purpose.” Wallace, 472 U.S. at 56.
Thus, the decision below does not conflict with Wallace.
There is no basis for granting certiorari.
Il. THERE IS NO CONFLICT BETWEEN THE
RESULTS IN ALABAMA AND VIRGINIA.
Unable to produce a conflict among the circuits, peti-
tioners allege another sort of conflict: the Alabama law
was struck down, yet the Virginia statute stands. Pet.
17-20: This is not a conflict. Petitioners are comparing
apples and oranges. The differences in legislative purpose
have been discussed. See supra at 14-17. The statutory
texts are also different.19 For example, Alabama prohib-
ited all activities other than meditation and prayer. By
contrast, Virginia allows any silent, seated activity that
19 The Alabama statute said:
At the commencement of the first class of each
day in all grades in all public schools the teacher in
charge of the room in which each class is held may
announce that a period of silence not to exceed one
minute in duration shall be observed for meditation or
voluntary prayer, and during any such period no other
activities shall be engaged in.
Wallace, 472 U.S. at 40, quoting Ala. Code § 16-1-20.1 (emphasis
added).
24
does not distract others. Students here have much greater
freedom to use the minute of silence as they choose.?°
Unlike Alabama, Virginia expressly - and repeatedly
— disclaims any intent to advance or inhibit religion. The
Act says students must be subject to “the least possible
pressure .. . either to engage in, or to refrain from,
-religious observation on school grounds.” Va. Code
§ 22.1-203. It also says - twice - that students must
“exercise . . . individual choice” in deciding how to use
their minute of silence. Id. These disclaimers are key. “[I}f
the statute disclaims an intent to encourage prayer over
alternatives during a moment of silence, then courts
should generally defer to that stated intent.” Wallace, 472
U.S. at 74-75 (O’Connor, J., concurring in judgment). In
keeping with its avowed religious intent, Alabama made
no such disclaimer, and forfeited such deference.
Even if Alabama and Virginia used the same texts, it
would not compel the same results. It was not the text of
20 Petitioners complain that the Act does not allow children
to “opt out of the state sponsored activity.” Pet. 17, n.6. Since a
minute of silence is not a religious exercise, it is difficult to see
on what basis a student might want to “opt-out.” Even so, the
statute governs what goes on inside the classroom, not what
happens elsewhere in the school. Thus, contrary to petitioners’
assessment, the Act does not prevent a school from excusing
students from the classroom if such a request were made.
Petitioners also call Virgimia’s law “more onerous” than the
one invalidated in Wallace. They note that Alabama said
teachers “may” announce a minute of silence, while Virginia
says they “shall” do so. Pet. 18, n.7. But the distinction between
“may” and “shall” played no part in Wallace. 472 U.S. at 59.
Indeed, the Alabama statute that survived — the original, 1978
law — used “shall”. Wallace, Id. at 40, quoting Alabama Code
§ 16-1-20 (Supp. 1984) (“teacher . . . shall announce . . . a period
of silence.”). It is not important what level of government makes
the decision to have a minute of silence. What is important is
that Virginia provides students broad freedom to use this time
as they choose.
25
the Alabama law that doomed it, but its legislative his-
tory and Alabama’s use of the law to assault the Estab-
lishment Clause. The Virginia legislative history is
markedly different, and Virginia has carefully imple-
mented its law to comply with the Establishment Clause.
See supra at 4, 5, 10 and 11. Thus, the difference of
outcome creates no “constitutional anomaly.”
Petitioners nevertheless try to shore up their “anom-
aly” theory with cases they say struck down minute of
silence laws by “interpreting Wallace”. Pet. 18-19. They
are mistaken. The cases they cite were decided before
Wallace and/or are otherwise distinguishable.
a. Petitioners cite Walter v. West Virginia Bd. of Educ.,
610 F. Supp. 1169 (S.D. W. Va. 1985), striking down West
Virginia’s constitutional requirement for a minute of
silence. The district court in Walter lies within the Fourth
Circuit. Thus, to the extent it may conflict with the deci-
sion below, Walter is no longer good law. Moreover, Wal-
ter was decided in March of 1985; Wallace was not
decided until three months later. Thus, Walter did not
“interpret” Wallace.
b. In a similar mistake about dates, petitioners cite
Beck v. McElrath, 548 F. Supp. 1161 (M.D. Tenn. 1982),
vacated and appeal dismissed, 718 F.2d 1098 (6th Cir. 1983),
where the district court struck down Tennessee’s “Silent
Prayer Act.” While the case was on appeal, the law was
repealed and replaced by a new “Silent Minute Act.”
Thus, the district court’s decision was vacated as moot.
718 F.2d at 1098. All of this happened years before the
decision in Wallace.
c. Petitioners also cite May v. Cooperman, 780 F.2d
240 (3rd Cir. 1985), appeal dismissed sub. nom., Karcher v.
May, 484 U.S. 72 (1987), a case easily distinguishable on
the facts. Deciding the case before Wallace, the district
court struck down New Jersey’s statute. Deciding the
appeal a few months after Wallace, a divided panel of the
Third Circuit felt bound by the district court’s finding
that the law lacked pedagogical value, and struck it down
26
under the secular purpose prong.?! Such a result cannot
be reached here. Petitioners have never alleged a lack of
pedagogical value. In fact, they have acknowledged it. See
supra at 4. Moreover, Virginia has affirmatively demon-
strated pedagogical value by unrebutted expert testimony
and the experience of localities that implemented a min-
ute of silence before the 2000 amendment. See supra at 4,
5. Instead of helping petitioners, May illustrates how the
presence or absence of a secular purpose depends on the
particular facts of a case. The Fourth Circuit did a good
job of reviewing the facts here. There is no need for this
Court to repeat the task.
More pertinent than May are the two circuit courts
that relied on principles from Wallace to uphold minutes
of silence: Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir.
1997), cert. denied, 523 U.S. 1024 (1998), and Bown v.
Gwinett Co. Sch. Dist., 112 F.3d 1464 (11th Cir. 1997). In
trying to discount these cases, petitioners misstate them.
In Chaudhuri, the Sixth Circuit decided two issues: (1)
In a split decision, the panel ruled that vocal prayer at a
state university function does not violate the Establish-
ment Clause. (2) In a unanimous decision, the panel also
ruled that a moment of silence at the university is consti-
tutional under Wallace. Petitioners argue that the Sixth
Circuit upheld the moment of silence because of the
distinction between adults and children. Pet. 19. They
misread the case. The court discussed the adult-child
distinction in connection with vocal prayer, not the min-
ute of silence. See 130 F.3d at 238-39. Moreover, the adult-
child distinction was discussed in connection with the
effects of vocal prayer. Effects are addressed under the
21 The dissent in May persuasively notes that the relevant
inquiry is not whether a court believes a minute of silence
actually serves a particular purpose, but whether “the statute
seems so patently ineffective or irrelevant with respect to the
alleged secular purpose that it is unreasonable to believe that
the legislature enacted the statute to serve that purpose.” May,
780 F.2d at 265 (Becker, J., dissenting).
27
second prong of Lemon, which is not at issue here. See
supra at 17. Petitioners’ readiness to gloss over these facts
again shows why certiorari is inappropriate.
In Bown, the Eleventh Circuit decided that Georgia’s
minute of silence statute is constitutional. Petitioners con-
tend that Georgia “removed references to prayer” con-
tained in a previous version of the challenged statute.
Pet. 19-20. But, that is not exactly so. As amended, the
statute exp.essly permitted “student initiated voluntary
school prayers”. 112 F.3d at 1466, quoting Ga. Code Ann.
§ 20-2-1050(c). While another reference to “prayer” was
removed, the case did not turn on that fact. Indeed, the
Eleventh Circuit relegated the change to a footnote. 112
F.3d at 1470, n.3. What is most significant about Bown is
that the court-approved guidelines for implementing the
Georgia law are the model for the implementation guide-
lines used in Virginia. Compare Bown, 112 F.3d at 1468,
with Fourth Circuit Op., Pet. 9a. Those guidelines under-
score the secular purposes of the Act.
In sum, conflicts among the circuits often furnish
cases worthy of certiorari, but there is no such conflict
here. Petitioners’ failed attempt to manufacture some
other conflict - based on different laws with different
purposes — highlights the weakness of their petition. Cer-
tiorari should be denied.
Ill. CERTIORARI IS NOT NEEDED TO RESOLVE
QUESTIONS ABOUT DISCERNING LEGISLA-
TIVE INTENT.
In their third argument, petitioners step outside of
their “question presented” and ask this Court to adopt a
new standard for dual purpose statutes, a standard at
odds with the one followed in Wallace. The evidence
shows that the Commonwealth’s purposes were exclu-
sively secular; however, the Court need not reach that
conclusion in order to see that certiorari is inappropriate.
Petitioners apparently advocate some sort of balanc-
ing test, weighing the amount of religious motivation
28
against the amount of secular motivation to see if the
secular motives are more than “incidental.” Pet. 23. Such
an approach to Lemon's secular purpose prong is contrary
to the approach followed in Wallace, where the Court
struck down the Alabama statute because it had “no
secular purpose.” 472 U.S. at 56 (emphasis added). There
is no reason to revisit this standard. But even if the Court
wished to reconsider its treatment of dual motives, there
are at least three reasons why this case would be a poor
vehicle for doing so.
a. In their “question presented,” petitioners ask for
Wallace principles to be applied, not modified. When an
issue is not included in the question presented, it is
disqualified from consideration. Rule 14.1(a).
b. Petitioners cite several cases they believe suggest
a less rigorous approach to dual purpose statutes than the
one used in Wallace and Lynch. But, in each of those cases,
the challenged practice involved inherently religious con-
tent. See, e.g., Santa Fe Sch. Dist. v. Doe, 530 U.S. 290 (2000)
(vocal prayers over loud speakers); Edwards v. Aguillard,
482 U.S. 578 (1987) (teaching creationism); Stone v.
Graham, 449 U.S. 39 (1980) (posting Ten Commandments
in classroom); School Dist. of Abington Township v.
Schempp, 374 U.S. 203 (1963) (daily Bible reading in class-
room). The distinction between these religious content
cases and a minute of silence is fundamental:
A state-sponsored moment of silence in the pub-
lic schools is different from state-sponsored
vocal prayer or Bible reading .. . [because] a
moment of silence is not inherently religious. . . .
[Thus] a moment of silence statute does not
stand or fall under the Establishment Clause
according to how the Court regards vocal prayer
or Bible reading.
29
Wallace, 472 U.S. at 72 (O’Connor, J., concurring in
judgment) (emphasis added). Thus, if the Court wished
to consider a different approach to dual motives in cases
involving inherently religious content, a minute of silence
case would not be a useful occasion for doing so.
c. Even if petitioners’ new approach were applied
here, it would not alter the outcome. The evidence of
secular purposes is too compelling. In an effort to mini-
mize that evidence, petitioners claim the Fourth Circuit
“improperly emphasized” the “absence of official state-
ments” showing a religious purpose. Pet. 23. But, their
argument is belied by the broad array of evidence
addressed by the Fourth Circuit’s opinion. See Fourth Cir.
Op., Pet. 5a-10a, 14a-17a, 20a-24a. Moreover, the facts that
petitioners say are over-emphasized are key points in
distinguishing this case from Wallace. Since petitioners
argue that Wallace governs, they should not complain
when the court points out why it does not.
Finally, this Court has already provided ample guid-
ance on how to assess legislative purpose. Much of that
22 Petitioners’ search for the seeds of a new standard is
further frustrated by this Court's treatment of cases on which
they rely. For example, both Stone and Schempp were decided
before the 1984 decision in Lynch. Both are cited by Lynch as
examples of governmental action that was invalidated “only”
because “there was no question that the statute or activity was
motivated wholly by religious considerations.” 465 U.S. at 680
(emphasis added).
Judge O’Connor’s concurring opinion in Lynch takes a
somewhat different tack in its treatment of Stone and Schempp,
and in its warning against reliance on secular purposes that are
de minimus. 465 U.S. at 690-91 (O’Connor, J., concurring) (first
prong is not satisfied “by the mere existence of some secular
purpose, however dominated by religious purposes.”). Yet, this
cautionary note would not help petitioners here, where the
secular purposes are obviously substantial and where, unlike
Stone and Schempp, the challenged activity is devoid of
inherently religious content.
30
guidance is collected in Justice O’Connor’s opinion in
Wallace, where she said “the inquiry into the purpose of
the legislature in enacting a moment of silence law
should be deferential and limited.” Wallace, 472 U.S. 74,
citing Everson v. Board of Education, 330 U.S. 1, 6 (1947).
She also noted that “[a] court has no license to psycho-
analyze the legislators.” Id., citing McGowan v. Maryland,
366 U.S. 420, 466 (1961) (opinion of Frankfurter, J.). More-
over, “[i]f a legislature expresses a plausible secular pur-
pose for a moment of silence statute in either the text or
the legislative history, or if the statute disclaims an intent
to encourage prayer over alternatives during a moment
of silence, then courts should generally defer to that
stated intent.” Id. at 74-75, citing Committee for Public
Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773
(1973); Tilton v. Richardson, 403 U.S. 672, 678-79 (1971).
The court of appeals followed this guidance when it
held that the Act is constitutional and that “Wallace is
clearly distinguishable.” Pet. 24a. By disregarding exis-
ting guidance - and seeking new standards instead -
petitioners reveal the great distance they must go in order
to prevail. Their case does not merit certiorari.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,
RANDOLPH A. BEALES BERNARD L. McNamez, II
Attorney General of Deputy Attorney General
Vicgunte ALISON P. LANDRY
WruiaM H. Hurp ANTHONY P. MEREDITH
Solicitor General Assistant Attorneys
Counsel of Record General
October 1, 2001
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.