The latest salvo in the ongoing dispute over the place of religion
in public schools comes from the Fourth Circuit. In 2000 Virginia
enacted a statute requiring public schools to begin each day with
a moment of silence, during which a student, "in the exercise
of his or her individual choice," could "meditate, pray,
or engage in any other silent activity . . . ." Va. Code Ann.
§ 22.1-203 (Michie 2000). In a 2-1 split, the court held that
the Commonwealth's statute did not offend the First Amendment's Establishment
Clause. Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001).
Writing for the majority, Judge Niemeyer began by identifying the
shared goal of the Constitution's two religion clauses: "to protect
religious liberty." Id. at 273. Because the central objective
of the Establishment Clause is promote religious liberty, it does
not preclude a state from "accommodating" its citizens'
religious scruples. Crucially, the court pointed out that "the
limits of permissible accommodation are not 'coextensive with the
non-interference mandated by the Free Exercise Clause.'" Id.
at 275 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970)). That
is, a state can, consistent with the Establishment Clause, enact a
religious accommodation that is more extensive than what is required
by the Free Exercise Clause.
The court further held that Virginia's moment-of-silence statute passed
muster under the familiar three-prong test announced in Lemon v. Kurtzman,
403 U.S. 602 (1971). First, it held that the enactment had a number
of "valid secular purposes," including facilitating classroom
discipline and encouraging students to reflect. Significantly, the
court stated that accommodating religious scruples itself can be a
valid secular purpose: "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." Brown, 258 F.3d at 276. But see id. (stating
that accommodation "may be secular even though it addresses religion"
(emphasis added)). In addition, the court concluded that, even if
accommodation were not a secular objective, Virginia's law nevertheless
survived Lemon's purpose prong because Lemon requires only that "there
be a secular purpose," not that a statute have only a secular
purpose. Id. at 277 (emphasis added). Because the moment-of-silence
law had a valid secular purpose, the fact that it also may have had
a religious objective was of no consequence.
Lemon's other two prongs received somewhat less attention. The majority
denied that the statute's "primary effect" was to advance
or hinder religion. Specifically, the court doubted that non-praying
students would assume, from the fact that their classmates were praying,
that Virginia endorses prayer; the plaintiffs' fear of "psychological
coercion" was "speculative at best," id. at 278, since
they had facially challenged the statute before it was administered
and therefore had not established a factual record to support their
claim. Third and finally, the majority concluded that the moment-of-silence
law posed little risk that the state would become "excessively
entangled" with religion, since it called on teachers to do no
more than inform their students that silent prayer was one of several
The majority had little difficulty distinguishing the Supreme Court's
decision in Wallace v. Jaffree, 472 U.S. 38 (1985), which invalidated
an Alabama moment-of-silence statute. The law at issue in Wallace
"'had no secular purpose,'" and indeed Alabama's governor
expressly testified that its purpose was to return prayer to public
schools. Brown, 258 F.3d at 279 (quoting Wallace, 472 U.S. at 56).
Nor did Alabama assert that its statute was necessary to accommodate
private religious practices until late in the litigation. Virginia's
law, by contrast, had both religious and secular purposes, and there
was no evidence that teachers coercively led their students in collective
prayer. Id. at 280-81.
In dissent, Judge King "look[ed] below the surface" to discern
the "true purpose" behind Virginia's statute: "to encourage
students to pray." Id. at 284, 286 (King, J., dissenting). The
law was not likely to facilitate the free exercise of religion, since
it favors silent prayer, and prohibits forms of prayer that require
vocal or physical activity-for example, those practiced by Catholics,
Jews, and Muslims. Nor was the statute a necessary accommodation,
since students' right to pray would not have been burdened if the
state had not included the word "pray" in the statutory
text. Id. at 287-88. Finally, the statute nowhere asserted Virginia's
claimed interest in encouraging classroom discipline. Id. at 290.
Several commentators expect that Brown will make its way to the Supreme
Court. If the High Court does grant certiorari in Brown, it may use
the case as a vehicle to decide one or more cutting-edge issues in
the area of religious liberty and accommodation, including: (1) whether
the accommodation of religion can itself be a valid secular purpose,
even though it has religion as its subject matter; (2) whether a state's
overtly religious purpose, when twinned with a clearly secular one,
satisfies the Lemon test's secular-purpose prong; and (3) whether
the threat of student-on-student "psychological coercion"
is less weighty in the context of a pre-application facial challenge
than in an as-applied suit.
2003 The Federalist Society