All through elementary school, I recited the mandatory New York State school prayer, every day. I can still remember my relief at its mysterious elimination. No one told us that the Supreme Court had invalidated the prayer (in Engel v. Vitale, in 1962); our teachers simply expunged it from our morning routine. I had always hated compulsory recitation (regardless of what was being recited), and when we stopped saying the prayer, it occurred to me that I should stop saying the Pledge as well, which I did—although after a brief ruckus I agreed to stand silently, hands at my side, while my classmates pledged.
Some would consider this a cautionary tale about the dangers of eliminating prayer, and since the 1960s a majority of states have enacted voluntary or mandatory moment-of-silence laws. In 1984, the Supreme Court struck down an Alabama law authorizing a moment of silence for prayer or meditation. It was part of a statutory scheme obviously intended to re-introduce prayer to public school; the litigation history even included an Alabama federal district court ruling that the establishment clause did not apply to the states. But more than fifteen years later, the Supreme Court declined to review Brown v. Gilmore, a 2001 decision by the U.S. Court of Appeals for the Fourth Circuit upholding a Virginia law requiring students to observe a moment of silence for meditation, prayer, or any other silent activity.
Do laws like this privilege religion unduly or unconstitutionally? Not necessarily. Teachers regularly impose, or try to impose, silence on students. (I wouldn’t blame them for supporting an hour of silence.) Of course, they don’t need legislators deciding when and how to require silence, but the desirability or appropriateness of legislative meddling in the classroom is a policy question, not a constitutional one. The constitutional question rests on the claim that mandatory moments of silence effectively coerce prayer. It’s not an entirely implausible argument, but in my view, the alleged coercion may be too subtle or trivial to matter. If moments of silence are, in theory, establishment clause violations, in practice they’re relatively petty ones. A law requiring students to observe a moment of silence and reminding them that they have the option of exercising their right to pray silently does not a theocracy make.
Questions about the constitutionality of moment-of-silence laws are once again in federal court, in Sherman v. Koch. An atheist family in Illinois has challenged a recently amended statute requiring schools to set aside a moment of silence during which students are given the options of silently praying or reflecting on the anticipated activities of the day. The statute at issue dates back to 1969, when it provided for an optional moment of silence; decades later, in 2002, the law was renamed “The Silent Reflection and Student Prayer Act” and in 2007, it was amended to provide for a mandatory moment of silence. The legislative history betrays at least some arguable intent to use this law as a vehicle for encouraging prayer. (A summary of this history is included in an American Civil Liberties Union amicus brief, on which I am relying.) A federal district court in Illinois struck down the law, holding that it lacked a secular purpose, effectively advanced religion, and favored some religions over others (namely, those religions that favored or acknowledged silent prayer). Naturally, the state appealed, and at a hearing in February 2010, the Seventh Circuit seemed “inclined to uphold” the Illinois law, according to the National Law Journal.
This case looks like a loser to me (and to the extent that it rests on a claim that the state is sharply limiting or dictating what students may think, it looks more like a freedom-of-conscience case than a violation of the establishment clause). In any case, the Illinois law in Sherman v. Koch is distinguished from the Virginia law upheld in Brown v. Gilmore mainly by the fact that it provides students with only two choices—silent prayer or reflection in anticipation of the day—while the Virginia statute provides students with three choices: meditation, prayer, or any other, nondisruptive silent activity. This seems like a very small and probably moot point on which to hang a constitutional challenge. We can’t yet read minds or dictate thoughts; so, as a practical matter, students in Illinois are as free as students in Virginia to pray or not pray and think what they choose.
The Sherman family disagrees. They argue that the Illinois law limits children’s freedom by effectively coercing them to pray, because prayer and reflection are the only authorized options: young children will not understand what “reflection” entails, and both children and teenagers will submit to peer pressure to pray, a child psychologist testified at trail. Perhaps, but not even a child psychologist knows what irreligious, unprayerful thoughts linger in the head of a child during a moment of silence (even if she appears to be praying); who knows (though it’s not hard to guess) what sacrilegious things a teenager might be praying for? Does this mandatory moment of silence actually advance religion or religious values? It takes a great leap of faith to imagine so.