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7th Circuit Upholds Illinois Moment of Silence Law

By Howard M. Friedman

In a 2-1 decision yesterday, the U.S. 7th Circuit Court of Appeals upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges.  The Act requires every public school classroom to open with "a brief period of silence." The statute goes on to provide: "This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day."  The majority in Sherman v. Koch, (7th Cir., Oct. 15, 2010), held:

The Illinois legislature had a secular purpose in passing Section 1, namely mandating a period of silence to calm school children before the start of their day. There is no evidence that the secular purpose is a sham and that Illinois?s true purpose was to promote prayer. And there is nothing impermissible about clarifying that students may pray during that time period. Section 1 also does not advance or inhibit religion (or specific religions that practice momentary silent prayer), but rather mandates only a period of silence. There is also no state entanglement with religion. Therefore, Section 1 satisfies the Lemon test and Sherman?s First Amendment challenge fails. Sherman?s vagueness challenge also fails because Section 1 is not unconstitutionally vague in all of its operations.

Judge Williams dissenting however argued:

The Act makes what I believe to be an unnecessary reference to prayer, signaling a predominantly religious purpose to the statute. And by enumerating prayer as one of only two specific permissible activities, the Act conveys a message that Illinois students should engage in prayer during the prescribed period as opposed to a host of other silent options. I have concluded that the purpose and effect of the Act is to encourage prayer in public schools, which violates the first two prongs of the Lemon test.

The Chicago Tribune reports on the decision. Among the advocacy groups issuing press releases on the case were the ACLU of Illinois and Alliance Defense Fund.  (See prior related posting.)

Full post as published by Religion Clause on October 16, 2010 (boomark / email).