Brown v. Gilmore
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 possible options.

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