Brown Ex Rel. Brown v. Gilmore , 258 F.3d 265 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ED BROWN, as parent and next 
friend of Vanessa Brown;
ROSALYNNE BROWN, as parent and
next friend of Vanessa Brown;
VANESSA BROWN, a minor child
attending Thomas Jefferson High
School for Science and Technology
in Fairfax, Virginia; MARC J.
COHEN, as parent and next friend of
Amy and Michael Cohen; MICHAEL
COHEN, a minor child attending
Spring Hill School in Fairfax,
Virginia; AMY COHEN, a minor child
attending Spring Hill School in
Fairfax, Virginia; FRANK M.
FEIBELMAN, as parent and next friend
of Seth Feibelman; SETH FEIBELMAN,  No. 00-2132
a minor child attending Henrico
County Middle School in Henrico
County, Virginia; GREGORY
KRUGLAK, as parent and next friend
of Kathryn Anya Kruglak; PATRICIA
KRUGLAK, as parent and next friend
of Kathryn Anya Kruglak; KATHRYN
ANYA KRUGLAK, a minor child
attending Thomas Jefferson High
School for Science and Technology
in Fairfax, Virginia; JEFFREY M.
LEPON, as parent and next friend of
Jana Lepon and Ariel Lepon; CORA
YAMAMOTO, as parent and next
friend of Jana Lepon and Ariel

2 BROWN v. GILMORE
Lepon; JANA LEPON, a minor child 
attending Longfellow Middle School
in Fairfax County, Virginia; ARIEL
LEPON, a minor child attending
Haycock Elementary School in
Fairfax County, Virginia; WAYNE
GRAY, as parent and next friend of
Robyn Gray; DEBORAH GRAY, as
parent and next friend of Robyn
Gray; ROBYN GRAY, a minor child
attending White Oak Elementary
School in Fairfax County, Virginia;
MARK MAGRUDER, as parent and
next friend of Mia MaGruder; ELLA
MAGRUDER, as parent and next
friend of Mia MaGruder; MIA
MAGRUDER, a minor child attending
Amherst Middle School in Amherst 
County, Virginia; ROY KUPERSMITH,
as parent and next friend of Jordan
Kupersmith; ADRIANA KUPERSMITH,
as parent and next friend of Jordan
Kupersmith; JORDAN KUPERSMITH, a
minor child attending Potomac Falls
High School in Loudoun County,
Virginia,
Plaintiffs-Appellants,
v.
JAMES GILMORE, The Honorable
James Gilmore in his official
capacity as Governor of the
Commonwealth of Virginia;
WILBERT BRYANT, The Honorable
Wilbert Bryant in his official

BROWN v. GILMORE 3
capacity as Virginia Secretary of 
Education; JO LYNNE DEMARY, in
her official capacity as Virginia
Superintendent of Public Instruction;
VIRGINIA BOARD OF EDUCATION;
VIRGINIA DEPARTMENT OF EDUCATION;
DANIEL DOMENECH, in his official
capacity as Division Superintendent
Fairfax County Public Schools;
MARK A. EDWARDS, in his official
capacity as Division Superintendent
Henrico County Public Schools;
JOHN J. DANIELS, in his official 
capacity as Division Superintendent
Amherst County Public Schools;
THE FAIRFAX COUNTY SCHOOL
BOARD; HENRICO COUNTY SCHOOL
BOARD; AMHERST COUNTY SCHOOL
BOARD; EDGAR B. HATRICK, in his
official capacity as Division
Superintendent Loudoun County
Public Schools; LOUDOUN COUNTY
SCHOOL BOARD,
Defendants-Appellees.

ED BROWN, as parent and next 
friend of Vanessa Brown;
ROSALYNNE BROWN, as parent and
next friend of Vanessa Brown;
VANESSA BROWN, a minor child  No. 00-2400
attending Thomas Jefferson High
School for Science and Technology
in Fairfax, Virginia; MARC J.
COHEN, as parent and next friend of

4 BROWN v. GILMORE
Amy and Michael Cohen; MICHAEL 
COHEN, a minor child attending
Spring Hill School in Fairfax,
Virginia; AMY COHEN, a minor child
attending Spring Hill School in
Fairfax, Virginia; FRANK M.
FEIBELMAN, as parent and next friend
of Seth Feibelman; SETH FEIBELMAN,
a minor child attending Henrico
County Middle School in Henrico
County, Virginia; GREGORY
KRUGLAK, as parent and next friend
of Kathryn Anya Kruglak; PATRICIA
KRUGLAK, as parent and next friend
of Kathryn Anya Kruglak; KATHRYN
ANYA KRUGLAK, a minor child
attending Thomas Jefferson High
School for Science and Technology 
in Fairfax, Virginia; JEFFREY M.
LEPON, as parent and next friend of
Jana Lepon and Ariel Lepon; CORA
YAMAMOTO, as parent and next
friend of Jana Lepon and Ariel
Lepon; JANA LEPON, a minor child
attending Longfellow Middle School
in Fairfax County, Virginia; ARIEL
LEPON, a minor child attending
Haycock Elementary School in
Fairfax County, Virginia; WAYNE
GRAY, as parent and next friend of
Robyn Gray; DEBORAH GRAY, as
parent and next friend of Robyn
Gray; ROBYN GRAY, a minor child
attending White Oak Elementary
School in Fairfax County, Virginia;

BROWN v. GILMORE 5
MARK MAGRUDER, as parent and 
next friend of Mia MaGruder; ELLA
MAGRUDER, as parent and next
friend of Mia MaGruder; MIA
MAGRUDER, a minor child attending
Amherst Middle School in Amherst
County, Virginia; ROY KUPERSMITH,
as parent and next friend of Jordan
Kupersmith; ADRIANA KUPERSMITH,
as parent and next friend of Jordan
Kupersmith; JORDAN KUPERSMITH, a
minor child attending Potomac Falls
High School in Loudoun County,
Virginia,
Plaintiffs-Appellants,
v.
JAMES GILMORE, The Honorable 
James Gilmore in his official
capacity as Governor of the
Commonwealth of Virginia;
WILBERT BRYANT, The Honorable
Wilbert Bryant in his official
capacity as Virginia Secretary of
Education; JO LYNNE DEMARY, in
her official capacity as Virginia
Superintendent of Public Instruction;
VIRGINIA BOARD OF EDUCATION;
VIRGINIA DEPARTMENT OF EDUCATION;
DANIEL DOMENECH, in his official
capacity as Division Superintendent
Fairfax County Public Schools;
MARK A. EDWARDS, in his official
capacity as Division Superintendent
Henrico County Public Schools;

6 BROWN v. GILMORE
JOHN J. DANIELS, in his official 
capacity as Division Superintendent
Amherst County Public Schools;
THE FAIRFAX COUNTY SCHOOL
BOARD; HENRICO COUNTY SCHOOL
BOARD; AMHERST COUNTY SCHOOL
BOARD; EDGAR B. HATRICK, in his 
official capacity as Division
Superintendent Loudoun County
Public Schools; LOUDOUN COUNTY
SCHOOL BOARD,
Defendants-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-1044-A)
Argued: May 8, 2001
Decided: July 24, 2001
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams joined. Judge King wrote a dissenting opin-
ion.
COUNSEL
ARGUED: Stuart Henry Newberger, CROWELL & MORING,
L.L.P., Washington, D.C., for Appellants. William Henry Hurd,
Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Rich-
BROWN v. GILMORE 7
mond, Virginia, for Appellees. ON BRIEF: Daniel A. Sasse, David
L. Haga, Christina M. Mireles, CROWELL & MORING, L.L.P.,
Washington, D.C.; Rebecca K. Glenberg, AMERICAN CIVIL LIB-
ERTIES UNION OF VIRGINIA, Richmond, Virginia, for Appel-
lants. Mark L. Earley, Attorney General, Ashley L. Taylor, Jr.,
Deputy Attorney General, Alison P. Landry, Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellees.
OPINION
NIEMEYER, Circuit Judge:
In 2000, the Commonwealth of Virginia amended a 1976 statute to
mandate that each school division in the state establish in its class-
rooms a "minute of silence" so that "each pupil may, in the exercise
of his or her individual choice, meditate, pray, or engage in any other
silent activity which does not interfere with, distract, or impede other
pupils in the like exercise of individual choice." Va. Code Ann.
§ 22.1-203 (Michie 2000) (emphasis added). Several Virginia stu-
dents and their parents commenced this action to challenge this statute
on its face, contending that it establishes religion in violation of the
First Amendment. The district court rejected the challenge, and we
affirm.
I
In 1976, Virginia enacted into law § 22.1-203. This provision
authorized, but did not require, local school boards to establish a min-
ute of silence in their classrooms for the expressly stated purpose of
allowing students to meditate, pray, or engage in any other silent
activity. In 1994, the Virginia General Assembly required the Vir-
ginia Board of Education to adopt guidelines on religious activities in
the schools. See Va. Code Ann. § 22.1-280.3. As directed, the Board
of Education adopted "Guidelines Concerning Religious Activities in
the Public Schools," in which it provided:
Public schools may provide students . . . with a minute of
silence to collect themselves and put their upcoming tasks
8 BROWN v. GILMORE
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 groups of
students, to pray aloud.
Acting under the authority of the 1976 law, at least 14, and perhaps
20 school divisions in Virginia chose to establish a minute of silence
in their classrooms, and a survey conducted by the Virginia Superin-
tendent of Schools revealed that this minute of silence has not led to
any peer-on-peer religious harassment.
In 2000, the Virginia legislature amended § 22.1-203 to require
that every school division provide a minute of silence in the State’s
public school classrooms and to direct the Attorney General to defend
the statute when it is challenged in court. The amended law became
effective July 1, 2000.1
1
The following shows how Va. Code Ann. § 22.1-203 was amended in
2000:
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 division is authorized to shall establish the daily
observance of one minute of silence in each classroom of the
division.
Where During such one-minute period of silence is instituted,
the teacher responsible for each classroom shall take care that all
pupils remain seated and silent and make no distracting display
to the end that each pupil may, in the exercise of his or her indi-
vidual choice, meditate, pray, or engage in any other silent activ-
BROWN v. GILMORE 9
Senator Warren Barry, who sponsored Senate Bill 209 ("SB 209")
containing the 2000 amendments to Virginia Code § 22.1-203,
explained to the press that he introduced the bill in response to some
recent highly publicized incidents of school violence with the hope
that encouraging regular introspection by students would somehow
lessen the urges of students to resort to violence. When asked by a
newspaper reporter about his intent in sponsoring the bill, Senator
Barry responded that his intent was not to force prayer in schools, but
he added, "This country was based on belief in God, and maybe we
need to look at that again."2
During debate of SB 209, some of the senators manifested their
concern about the constitutionality of the bill. Senator Edward Houck
of Spotsylvania stated that, given the religious diversity of his constit-
uents — "Christians and Muslims and Hindus and atheists" — the
proposed amendments, despite the fact that they were "pure in terms
of [their] intent," would amount to "crossing the line." Accordingly,
he urged his colleagues to "insulate . . . all of our teachers and our
school divisions from that tricky wicket of what is religious freedom
and what is not" by striking the meditation and prayer language from
the bill. Senator Stephen Newman of Lynchburg criticized this posi-
tion because such an altered bill would lack any "indication . . . [of]
what those students are [going to] be doing at all [during the minute
of silence]. They, simply will be quiet with no purpose." Senator
Newman explained further that the use of the terms "meditation,
prayer and reflection" gives direction to what may be done during the
minute of silence, but in no way could be viewed as sectarian. Simi-
ity which does not interfere with, distract, or impede other pupils
in the like exercise of individual choice.
The Office of the Attorney General shall intervene and shall
provide legal defense of this law.
(Italics show additions and strike-throughs show deletions).
2
The parties disagree whether statements to the press are admissible as
exceptions to the hearsay rule. We do not decide this question but
include this statement only for the sake of completeness. We do not,
however, believe that its inclusion materially adds or detracts from the
views of legislators contained in the legislative record.
10 BROWN v. GILMORE
larly, Senator Barry, the bill’s sponsor, rejected any interpretation that
associated the bill with school prayer. He stated:
[T]he purpose of the Bill 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 and the Kinkley
(ph.) situation in Oregon. This was simply an opportunity,
hopefully, that kids in school would reflect if more than
anything else. I’m saying, we’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.
SB 209 passed the Virginia Senate in the form introduced.
In the House of Delegates, Delegate Robert McDonnell, the House
floor manager of the bill, explained that the bill was grounded in both
"sound public policy" and the secular purposes "of maintaining 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." He added:
[Our students] are involved in so many activities, we expect
the best out of our students. So, many of the experts cer-
tainly would agree and I think it has born[e] out in the local-
ities that have implemented [the 1976 statute], 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.
The House, too, passed SB 209, and Governor James Gilmore signed
it into law on April 19, 2000.3
3
The same General Assembly that enacted SB 209 also enacted House
Joint Resolution 71, which consisted of a request to Congress that it take
steps to amend the federal Constitution so as to permit voluntary school
prayer of the type that had been found unconstitutional by the Supreme
Court in its landmark decision of Engel v. Vitale, 370 U.S. 421 (1962).
BROWN v. GILMORE 11
In his "Sine Die" statement to the General Assembly at the conclu-
sion of its 2000 term, Governor Gilmore praised the passage of SB
209, stating that it would "restore a sense of calm and civility in pub-
lic 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."
On June 13, 2000, the Virginia Department of Education directed
a memorandum to school division superintendents and public school
principals in Virginia informing them of the changes to Virginia Code
§ 22.1-203 that were made through SB 209. The memorandum stated
that the "legislation reflects the view that [Virginia’s] 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." The memo-
randum suggested, as an appropriate format for conducting a minute
of silence, that the teacher say, "As we begin another day, let us pause
for a moment of silence." The same memorandum warned against
permitting or tolerating "any coercion or overbearing by some stu-
dents to force others to engage in or refrain from prayer or any other
permitted activity. This time is not intended to be and shall not be
conducted as a religious service or exercise."
A little more than a week later, but before the statute’s effective
date on July 1, the plaintiffs commenced this action facially challeng-
ing § 22.1-203 under the First and Fourteenth Amendments of the
U.S. Constitution. They alleged in their complaint that the minute of
silence statute violates the Establishment Clause because its purpose
was to advance prayer in public schools. The plaintiffs sought a
declaratory judgment that the statute was unconstitutional and an
injunction prohibiting its enforcement.
Applying the test set forth in Lemon v. Kurtzman, 403 U.S. 602(1971), the district court concluded, by order dated October 26, 2000,
that the minute of silence statute "was enacted for a secular purpose,
does not advance or inhibit religion, nor is there excessive entangle-
ment with religion." It found, accordingly, that the statute was not
unconstitutional and granted summary judgment in favor of the defen-
dants. This appeal followed.4
4
On August 31, 2000, the district court denied the plaintiffs’ motion
for a preliminary injunction to prohibit enforcement of the statute. By
12 BROWN v. GILMORE
Summarizing on appeal their contention that Virginia’s minute of
silence statute violates the First Amendment, the plaintiffs state:
The statute’s plain language, coupled with the contempora-
neous statements, understandings and actions of the legisla-
tors who passed it and the Governor who signed it, all
unambiguously indicate that the new Minute of Silence Law
was intended to return voluntary prayer to the public school
classroom. The bill’s sponsor publicly stated the religious
motives underlying the statute. Members of both the Senate
and House of Delegates expressed their understanding and
desire that the Minute of Silence is about prayer. The Vir-
ginia legislature purposely rejected proposed amendments to
the Minute of Silence bill that would have removed the
word "pray" from the statute.
They also argue that the statute is "in all relevant respects" analogous
to the moment of silence statute that was held unconstitutional in
Wallace v. Jaffree, 472 U.S. 38 (1985) (applying the test announced
in Lemon).
II
The First Amendment provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exer-
cise thereof." U.S. Const. amend. I. These Religion Clauses are made
applicable to the states through the Fourteenth Amendment. See Ever-
son v. Bd. of Educ., 330 U.S. 1, 8 (1947) (applying the Establishment
Clause to the states); Cantwell v. Connecticut, 310 U.S. 296, 303
(1940) (applying the Free Exercise Clause to the states).
Both clauses are designed to protect religious liberty. See Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (noting that "the
order dated September 5, 2000, we denied the plaintiffs’ emergency
motion for injunction pending appeal. While the appeal from the denial
of plaintiffs’ motion for a preliminary injunction is also before us, that
appeal is resolved by our decision in the appeal on the merits, taken from
the summary judgment entered in favor of the defendants on October 26,
2000.
BROWN v. GILMORE 13
common purpose of the Religion Clauses ‘is to secure religious lib-
erty’" (quoting Engel v. Vitale, 370 U.S. 421, 430 (1962)); Michael
W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 1
("[R]eligious liberty is the central value and animating purpose of the
Religion Clauses"). The Establishment Clause limits any governmen-
tal effort to promote particular religious views to the detriment of
those who hold other religious beliefs or no religious beliefs, while
the Free Exercise Clause affirmatively requires the government not to
interfere with the religious practices of its citizens. Religion, accord-
ingly, as distinct from other moral or philosophical systems, is singled
out in the Constitution for the special protections contained in the
Religion Clauses. Cf. Gillette v. United States, 401 U.S. 437, 454
(1971) (upholding against an Establishment-Clause challenge an
exemption from an otherwise generally applicable draft law that per-
mitted exemption for those with religious, rather than moral, objec-
tion to war). Thus, the Religion Clauses must not be interpreted with
a view that religion be suppressed in the public arenas in favor of sec-
ularism. See Santa Fe Indep. Sch. Dist., 530 U.S. at 313 (noting that
"[b]y no means do these commands [of the Religion Clauses] impose
a prohibition on all religious activity in our public schools"); Lynch
v. Donnelly, 465 U.S. at 668, 673 (1984) (stating that religion must
be accommodated and that "[a]nything less would require the ‘callous
indifference’ we have said was never intended by the Establishment
Clause"); Sch. Dist. of Abingdon Township v. Schempp, 374 U.S. 203,
225 (1963) ("[T]he State may not establish a ‘religion of secularism’
in the sense of affirmatively opposing or showing hostility to reli-
gion" (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952));
Zorach, 343 U.S. at 314 (noting that if the government could not "re-
spect[ ] the religious nature of our people and accommodate[ ] the
public service to their spiritual needs," that would be to "prefer[ ]
those who believe in no religion over those who do believe").
The Establishment Clause, on which the plaintiffs rely in this case,
prohibits governmental establishment of a religion in the sense of
"sponsorship, financial support, and active involvement of the sover-
eign in religious activity." Walz v. Tax Comm’n, 397 U.S. 664, 668
(1970). But this clause does not require total separation of Church and
State. "[T]his Nation’s history has not been one of entirely sanitized
separation between Church and State," and it "has never been thought
either possible or desirable to enforce a regime of total separation."
14 BROWN v. GILMORE
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 760 (1973); accord Lynch, 465 U.S. at 673. Thus, just as the
Free Exercise Clause does not give the citizen having religious scru-
ples an absolute right to escape the burdens of otherwise valid, neutral
laws of general applicability, see Employment Div., Dep’t of Human
Resources v. Smith, 494 U.S. 872, 881-82 (1990), neither does the
Establishment Clause preclude a government from "accommodating"
religious scruple by, for example, voluntarily exempting those with
the particular religious scruple from the burden imposed by the legis-
lation, even though the Constitution would not, in that circumstance,
oblige an accommodation, see id. at 890. Not only is the government
permitted to accommodate religion without violating the Establish-
ment Clause, at times it is required to do so. See Hobbie v. Unemploy-
ment Appeals Comm’n, 480 U.S. 136, 144 (1987) ("[T]he government
may (and sometimes must) accommodate religious practices"); Lynch,
465 U.S. at 673 (stating that the Constitution "affirmatively mandates
accommodation, not merely tolerance, of all religions"). And the lim-
its of permissible accommodation are not "coextensive with the non-
interference mandated by the Free Exercise Clause." Walz, 397 U.S.
at 673; accord Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987). "This
authorized, and sometimes mandatory, accommodation of religion is
a necessary aspect of the Establishment Clause jurisprudence because,
without it, government would find itself effectively and unconstitu-
tionally promoting the absence of religion over its practice." Ehlers-
Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283, 287 (4th
Cir. 2000). It is true, however, that "[a]t some point, accommodation
may devolve into ‘an unlawful fostering of religion.’" Amos, 483 U.S.
at 334-35 (quoting Hobbie, 480 U.S. at 145).
The line between improper establishment and accommodation
"must be delicately drawn both to protect the free exercise of religion
and to prohibit its establishment." Ehlers-Renzi, 224 F.3d at 288. But
the Supreme Court has repeatedly drawn that line in a manner that has
upheld a broad range of statutory accommodations against Establish-
ment Clause challenges. See, e.g., Amos, 483 U.S. at 327, 330(upholding Title VII’s exemption of religious employers even in the
context of their non-religious activities); Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63 (1977) (applying Title VII’s requirement that
employers reasonably accommodate their employees’ religious
BROWN v. GILMORE 15
requirements); Gillette v. United States, 401 U.S. 437, 454 (1971)
(upholding against an Establishment Clause challenge a statutory
exemption from the draft limited to individuals whose religious
beliefs cause them to oppose war in any form); Zorach v. Clauson,
343 U.S. at 315 (upholding "released time" program for religious
instruction of public school children). And in Lemon, the Supreme
Court articulated a test to guide courts in drawing that line, a test that,
while criticized over the years, remains binding precedent. See
Ehlers-Renzi, 224 F.3d at 288. Under Lemon, to withstand an Estab-
lishment Clause challenge, (1) a statute must have a secular legisla-
tive purpose; (2) its principal or primary effect must neither advance
nor inhibit religion; and (3) it must not foster an excessive govern-
mental entanglement with religion. See 403 U.S. at 612-13.
III
Because this appeal comes to us in the posture of a facial, pre-
application challenge, our inquiry is limited by the absence of a fac-
tual record relating to how the statute is applied. Nevertheless, on a
facial challenge, we may still scrutinize a statute, based on its text,
context, and legislative history, to determine whether under Lemon it
has an unconstitutional purpose. See Santa Fe Indep. Sch. Dist., 530
U.S. at 312-17. And even though we must not speculate about a stat-
ute’s application in considering the second and third prongs of the
Lemon test, we can examine the available data to determine the stat-
ute’s "inevitable" effects. Id. at 316. It is under this analytical struc-
ture, therefore, that we now turn to consider the plaintiffs’ facial
challenge to Va. Code Ann. § 22.1-203.
IV
In applying the first prong of the Lemon test — whether § 22.1-203
has a secular legislative purpose — we need not find that the purpose
be "exclusively secular." Lynch, 465 U.S. at 681 n.6; see also Wal-
lace, 472 U.S. at 56. In Wallace, the court noted that even though a
statute may have a religious purpose, it may still satisfy the Lemon
test if it also has a "clearly secular purpose." Id. Moreover, we have
observed that this first prong of Lemon is "a fairly low hurdle," Koen-
ick v. Felton, 190 F.3d 259, 266 (4th Cir. 1999) (quoting Barghout v.
Bureau of Kosher Meat & Food Control, 66 F.3d 1337, 1345 (4th Cir.
16 BROWN v. GILMORE
1995) (Luttig, J., concurring in the judgment) (internal quotation
marks omitted)), so that a statute fails on this account when "there is
no evidence of a legitimate, secular purpose," id. at 265 (emphasis
added). Finally, in assessing a statute’s purpose we act with appropri-
ate deference to the legislature. See Wallace, 472 U.S. at 74(O’Connor, J., concurring in the judgment) ("[I]nquiry into the pur-
pose of the legislature in enacting a moment of silence law should be
deferential and limited").
The minute of silence statute in this case recites that in recognition
of the right of pupils to the free exercise of religion and the right of
pupils to be free from "pressure from the Commonwealth" to engage
or not engage in any religious observation, the Commonwealth was
establishing a minute of silence in each classroom. Va. Code Ann.
§ 22.1-203. The statute states that the minute of silence is explicitly
offered to the students for any non-distracting purpose — religious or
nonreligious — including prayer or meditation. See id. It provides
specifically, "each pupil may, in the exercise of his or her individual
choice, meditate, pray, or engage in any other silent activity which
does not interfere with, distract, or impede other pupils in the like
exercise of individual choice." Id. On its face, therefore, the statute
provides a neutral medium — silence — during which the student
may, without the knowledge of other students, engage in religious or
nonreligious activity. And its stated purposes include the allowance
of both religious and nonreligious activity with the only limitation
that it be conducted in a manner that preserves the silence and does
not interfere with other students’ silent activity. Thus, as written in
the statute, the silence is designed to be undirected and unthreatening;
it is designed to compromise no student’s belief or nonbelief; and it
is designed to exert no coercion except that of maintaining silence.
Based on this textual analysis, we conclude that the statute has at
least two purposes, one of which is clearly secular and one of which
may be secular even though it addresses religion. To the extent that
the minute of silence is designed to permit nonreligious meditation,
it clearly has a nonreligious purpose. And to the extent it is designed
to permit students to pray, it accommodates religion. Even though
religion is thus the object of one of the statute’s purposes, the accom-
modation of religion is itself a secular purpose in that it fosters the
liberties secured by the Constitution. See Texas Monthly, Inc. v. Bul-
BROWN v. GILMORE 17
lock, 489 U.S. 1, 12 n.2 (plurality opinion) (Brennan, J.) (noting that
a state may reasonably conclude "that religious groups generally con-
tribute to the cultural and moral improvement of the community . . .
and enhance a desirable pluralism of viewpoint and enterprise"); id.
at 38 (Scalia, J., dissenting); Wallace, 472 U.S. at 83 (O’Connor, J.,
concurring) (stating the view that the Court ought to acknowledge
openly that the religious purpose in an accommodation statute "is
legitimated by the Free Exercise Clause," and that such statutes do
not, solely for that reason, amount to unconstitutional "endorsements"
of religion because they are consistent with the values of the Constitu-
tion).
Taking our analysis beyond the text of § 22.1-203 to the context of
its enactment and its legislative history, the evidence does not alter
the conclusion that is suggested by the plain meaning of the statute.
The superintendent of Virginia’s schools noted that in her experience,
a moment of silence has proved to be "a good classroom management
tool" because it "works as a good transition, enabling students to
pause, settle down, compose themselves and focus on the day ahead"
making for "a better school day." This is consistent with statements
made by Senator Barry and Senator Newman. Senator Barry
explained that the statute was enacted to provide an opportunity dur-
ing which "kids in school would reflect if more than anything else."
He indicated that he included prayer in the list of activities permitted
during the minute so that prayer would not be excluded or discrimi-
nated against. Even Senator Houck, who wanted the word "pray" to
be deleted from the statute, acknowledged the statute’s secular intent.
Indeed, the Department of Education’s Guidelines, which were in
effect for many years before the 2000 amendments, focused most on
the beneficial nonreligious purposes provided by a quiet time.5 While
there can be no doubt from the legislative history that the moment of
silence was intended also to accommodate those children who wished
to pray silently each day in school, that was but one of the intended
purposes.
5
In their argument before the district court, the plaintiffs themselves
acknowledged, "[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."
18 BROWN v. GILMORE
A statute having dual legitimate purposes — one clearly secular
and one the accommodation of religion — cannot run afoul of the first
Lemon prong, which requires only that there be a secular purpose.
Indeed, the Wallace Court noted that even though a statute is "moti-
vated in part by a religious purpose" it may still satisfy the Lemon
test. 472 U.S. at 56 (citing Abingdon Sch. Dist. v. Schempp, 374 U.S.
203, 296-303 (1963) (Brennan, J., concurring).
Consideration of the final two prongs of the Lemon test need not
detain us long because the facial challenge is mounted without evi-
dence of the statute’s application in fact. The second prong — that the
statute’s effect neither advance nor hinder religion — is clearly satis-
fied in this case given the statute’s facial neutrality between religious
and nonreligious modes of introspection and other silent activity. See
Widmar v. Vincent, 454 U.S. 263, 273 (1981) (noting that even fore-
seeable benefits that religion receives from enactment of broad legis-
lation are only "‘incidental’" and "do[ ] not violate the prohibition
against the ‘primary advancement’ of religion") (quoting Committee
for Pub. Educ. v. Nyquist, 413 U.S. 756, 771 (1973)). Plaintiffs argue,
however, that despite the statute’s facial neutrality between silent reli-
gious expression and silent nonreligious expression, the statute’s
inevitable effect — given its broad application to children, beginning
in kindergarten and continuing through the twelfth grade — will be
to promote prayer by creating the perception, especially from the
viewpoint of young, impressionable school children, that the Com-
monwealth endorses prayer. In the context of a facial challenge, how-
ever, this fear is speculative at best. Despite language in Supreme
Court precedent recognizing the impressionability of elementary
school children and the greater threat of religious coercion attendant
to religious displays in elementary schools, see, e.g., Lee v. Weisman,
505 U.S. 577, 592-93 (1992); Sch. Dist. of Grand Rapids v. Ball, 473
U.S. 373, 390 (1985), nothing the Court has said "suggest[s] that,
when the school was not actually advancing religion, the impression-
ability of students would be relevant to the Establishment Clause
issue," Good News Club v. Milford Cent. Sch., No. 99-2036, slip op.
at 16 (U.S. June 11, 2001). To hold otherwise, especially in the con-
text of a facial challenge, would result in the introduction of "a modi-
fied heckler’s veto, in which . . . religious activity can be proscribed
on the basis" of sincere, but utterly mistaken perceptions of state
endorsement of religion. Id. at 18-19. Therefore, speculative fears as
BROWN v. GILMORE 19
to the potential effects of this statute cannot be used to strike down
a statute that on its face is neutral between religious and nonreligious
activity.
And the third prong — that the State not become excessively
entangled with religion — is undoubtedly satisfied. If we assume that
the statute will be enforced as written and that the teachers will apply
it as directed by the superintendent, the teacher will simply inform the
students of their statutory options during an enforced minute of
silence. Its involvement in religion is negligible, left only to inform-
ing students that one of the permissible options during the moment of
silence is prayer. If the students were kept uninformed of that right,
they might find it necessary to ask teachers whether the allotted time
might be used for prayer, increasing the potential for interactions
between teachers and religiously motivated students. See Wallace,
472 U.S. at 91 (White, J., dissenting).
In sum, in establishing a minute of silence, during which students
may choose to pray or to meditate in a silent and nonthreatening man-
ner, Virginia has introduced at most a minor and nonintrusive accom-
modation of religion that does not establish religion. By providing
this moment of silence, the State makes no endorsement of religion.
Indeed, when instructing Virginia teachers on the implementation of
the statute, State officials warned that teachers are not to permit or
tolerate "any coercion or overbearing by some students to force others
to engage in or refrain from prayer or any other permitted activity."
There is simply no evidence to indicate that Virginia has promoted
any religion or promoted religion over nonreligion. Recognizing that
the Religion Clauses of the Constitution are intended to protect reli-
gious liberty, Virginia’s minute of silence is no more than a modest
step in that direction by providing a non-intrusive and constitutionally
legitimate accommodation.
V
While our independent analysis of the Virginia statute under
Lemon leads to the conclusion that it is a "permissible accommoda-
tion" of religion, the plaintiffs argue that this conclusion is foreclosed
by the specific holding of Wallace, in which an Alabama moment-of-
silence statute was held unconstitutional. More particularly, they
20 BROWN v. GILMORE
maintain that because the Alabama statute struck down in Wallace is
indistinguishable from the Virginia statute under consideration here,
Wallace is "dispositive." For the reasons that follow, we disagree.
A fair reading of Wallace compels the conclusion that its holding
was based on the unique facts presented in that litigation and that its
decision did not categorically prohibit moment-of-silence statutes.
The Supreme Court in Wallace distinguished its case as "quite differ-
ent from merely protecting every student’s right to engage in volun-
tary prayer during an appropriate moment of silence during the
schoolday," 472 U.S. at 59, a passage that was cited with approval in
the Court’s decision in Santa Fe Indep. Sch. Dist., 530 U.S. at 313.
The outcome in Wallace was the culmination of Alabama’s attempt
to overturn Everson v. Board of Educ., 330 U.S. 1, 14-16 (1947),
which rendered the Establishment Clause applicable to the States
through the Fourteenth Amendment. As part of its campaign of defi-
ance, Alabama enacted three statutes: Section 1601-20, enacted in
1978, which authorized a one-minute period of silence in all public
schools "for meditation"; Section 16-1-20.1, enacted in 1981, which
authorized a period of silence "for meditation or voluntary prayer";
and Section 16-1-20.2, enacted in 1982, which authorized "willing
students" to be lead by authorized teachers in a prescribed prayer to
"Almighty God . . . the Creator and Supreme Judge of the world."
At the preliminary-injunction stage, the district court concluded
that the meditation statute, the 1978 enactment, was not objectionable
but that the other two statutes were invalid because, as a factual mat-
ter, "the sole purpose of both was ‘an effort on the part of the State
of Alabama to encourage religious activity.’" Wallace, 472 U.S. at 41(quoting Jaffree v. James, 544 F. Supp. 727, 732 (S.D. Ala. 1982).
With respect to the 1981 enactment, which authorized meditation or
prayer, the district court found that the statute failed Lemon’s first
prong because the prime sponsor of the legislation testified under oath
that the legislation was promoted and passed only in an "effort to
return voluntary prayer to our public schools." Id. at 43. The court
also found that Alabama teachers had already begun leading their stu-
dents in collective prayers, over communicated objections of the
plaintiff children. See Jaffree v. Bd. of Sch. Comm’s of Mobile
County, 554 F. Supp. 1104, 1107-08 (S.D. Ala. 1983).
BROWN v. GILMORE 21
Reviewing this record, the Supreme Court observed that it "reveals
that the enactment of § 16-1-20.1 [the 1981 enactment that provided
for meditation or prayer] was not motivated by any clearly secular
purpose — indeed, the statute had no secular purpose." Wallace, 472
U.S. at 56 (emphasis in original). The lack of secular purpose for the
challenged legislation was shown by the uncontroverted legislative
history of the statute as well as live testimony before the trial court.
Not only did the Governor of Alabama testify that the State’s intent
was to have prayer as part of daily classroom activity, but the State
also made no claim that the statute was enacted to accommodate the
free exercise of religion until late in the litigation. The Supreme Court
reached the conclusion that the 1981 enactment had an unlawful pur-
pose also because of the language of the two other statutory provi-
sions involved in the litigation, the 1978 enactment (providing for
meditation) and the 1982 enactment (providing for prayer to
Almighty God). While the 1982 enactment had a "wholly religious
character" that was "plainly evident from its text," id. at 58, the
"wholly religious character" of the 1981 enactment was more subtle
but no less certain when its language was compared to that of the
1978 predecessor (providing only for meditation). Thus, the Supreme
Court noted that "while the [legislative intent] merely [to] protect
every student’s right to engage in voluntary prayer during an appro-
priate moment of silence during the school day" was constitutionally
unobjectionable, the 1978 statute, providing for meditation, had
already protected that right, and thus, the enactment of the 1981 stat-
ute, providing for meditation and prayer, did not, and could not, as a
logical matter, further "any secular purpose that was not fully served
by [the 1978 enactment]." Id. at 59. Accordingly, only two conclu-
sions were consistent with the passage of the 1981 enactment: Ala-
bama enacted the statute either "(1) . . . to convey a message of state
endorsement and promotion of prayer; or (2) . . . for no purpose." Id.
at 59. Refusing to attribute irrationality to the Alabama legislature, the
Supreme Court concluded that the statute was enacted for a rational,
but plainly unlawful purpose.
In short, the Supreme Court observed that "the State did not present
evidence of any secular purpose," id. at 57, and the purpose as singu-
larly religious was confirmed from "consideration of the relationship
between the statute at issue and the two other measures that were con-
sidered in the case," id. at 58. The Court made clear, however, that
22 BROWN v. GILMORE
enacting a statute solely for a religious purpose is "quite different
from merely protecting every student’s right to engage in voluntary
prayer during an appropriate moment of silence during the school
day." Id. at 59 (emphasis added).
This admonition by the Wallace Court that its holding did not reach
to moment of silence statutes that had both secular and religious pur-
poses was confirmed in the separate concurring opinions of Justices
Powell and O’Connor. Justice Powell agreed that the evidence in the
record indicated that the Alabama moment of silence statute was
enacted solely for a religious purpose, rendering unnecessary any
analysis under the other two prongs of the Lemon test. But he added,
"Although we do not reach the other two prongs of the Lemon test,
I note that the effect of a straightforward moment-of-silence statute
is unlikely to advance or inhibit religion . . . nor would such a statute
foster an excessive government entanglement with religion." Id. at 66(Powell, J., concurring) (internal quotation marks and citations omit-
ted). Similarly, Justice O’Connor noted that a moment of silence stat-
ute is not inherently religious and that during the moment of silence
a student who objects to prayer is left to his or her own thoughts and
not compelled to listen to the prayers or thoughts of others. She con-
cluded, "It is difficult to discern a serious threat to religious liberty
from a room of silent, thoughtful schoolchildren." Id. at 73(O’Connor, J., concurring in the judgment). Justice O’Connor’s con-
currence in Wallace also rejects one of the arguments advanced by
plaintiffs in this litigation, namely, that Virginia’s use of the word
"pray" is dispositive of an intent to endorse prayer. Wallace, 472 U.S.
at 73 ("Even if a statute specifies that a student may choose to pray
silently during a quiet moment, the State has not thereby encouraged
prayer over other specified alternatives.").
The factual record of the case before us stands in stark contrast to
the one presented to the Supreme Court in Wallace. First, there is no
evidence that the Commonwealth of Virginia acted in open defiance
of federal constitutional law. To the contrary, its debates reflected
serious consideration of relevant Supreme Court precedents and con-
cern that it act constitutionally in enacting its proposed statute.
Indeed, rather than defy the Supreme Court by seeking to conduct an
end run around its precedents, the Virginia House of Delegates passed
BROWN v. GILMORE 23
a resolution requesting that Congress initiate a constitutional amend-
ment.
In addition, the legislators clearly debated and acknowledged both
religious and secular purposes for the proposed statute, describing the
benefits of a minute of silence even for students who would not use
the allotted time to pray.
Finally, unlike the Alabama teachers who admitted to leading their
students in religious chants and prayers without even waiting for the
passage of a State law authorizing such conduct, the Virginia teachers
were operating under cautious guidelines circulated five years earlier.
Moreover, after passage of the 2000 amendment, the superintendent
of schools in Virginia directed a memorandum to all teachers, admon-
ishing them not to permit the minute of silence to become a religious
observance. There is no evidence in this record that Virginia teachers
have used the minute of silence, or any other occasion, to lead their
students in collective prayer, as was the case in Wallace.
The plaintiffs point to the fact that the 2000 amendments to Virgin-
ia’s statute made the minute of silence mandatory throughout the
State, therefore rendering it coercive. But we can find no material dis-
tinction between the 1976 version of § 22.1-203, in which a political
subdivision was authorized to impose a minute of silence and the cur-
rent statute where the State itself imposed the minute of silence. Both
are mandatory minutes of silence for the students implicated, but nei-
ther is coercive in that the affected students are left to choose how
they will use the minute of silence.
In short, the holding in Wallace is clearly distinguishable. Indeed,
the Supreme Court went out of its way to distinguish that case from
the one now before us.
VI
The Supreme Court has ruled clearly that state-sponsored prayer
conducted in public schools violates the Establishment Clause of the
First Amendment and that student-sponsored prayer in public schools
may violate it because, in the coercive context of the classroom, a
24 BROWN v. GILMORE
vocal prayer infringes the religious liberty of students who would
choose not to participate. A moment of silence, however, lacks this
dispositive element of coercion. See Santa Fe Indep. Sch. Dist., 530
U.S. at 313; Wallace, 472 U.S. at 72 (O’Connor, J., concurring in the
judgment). Establishing a short period of mandatory silence does not
ipso facto amount to the establishment of anything but silence.
The minute of silence established in Virginia by § 22.1-203 for
each public school classroom is designed to provide each student at
the beginning of each day an opportunity to think, to meditate, to
quiet emotions, to clear the mind, to focus on the day, to relax, to
doze, or to pray — in short, to provide the student with a minute of
silence to do with what the student chooses. And just as this short
period of quiet serves the religious interests of those students who
wish to pray silently, it serves the secular interests of those who do
not wish to do so. Because the state imposes no substantive require-
ment during the silence, it is not religiously coercive. Neither the
teacher nor any student will know how any other student uses the time
because it is, fortunately, inherent in the human constitution that what
transpires in the mind cannot be known by others.
The statute’s use of the word "pray," in listing an unlimited range
of mental activities that are authorized during the minute of silence,
cannot by itself be a ground for finding the statute unconstitutional.
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.
Accordingly, after considering the text of the statute, its legislative
history, and the facts surrounding its enactment, we hold that Virginia
Code Annotated § 22.1-203 (Michie 2000) does not violate the Estab-
lishment Clause of the First Amendment. The judgment of the district
court is therefore
AFFIRMED.
KING, Circuit Judge, dissenting:
Today the majority spurns controlling precedent in upholding the
constitutionality of a Virginia statute that establishes religion in the
BROWN v. GILMORE 25
public schools of the Commonwealth. By mandating a "minute of
silence" at the start of each schoolday, the Commonwealth has
engaged in a thinly veiled attempt to reintroduce state-sanctioned
prayer into its schools. See Va. Code Ann. § 22.1-203 (Michie 2000)
(the "Virginia statute"). Because the Virginia statute is repugnant to
the Constitution’s Establishment Clause and erodes the separation
between church and state, I must dissent.
The First Amendment, applicable to the states through the Four-
teenth, explicitly declares that "Congress shall make no law respect-
ing an establishment of religion." U.S. Const. amend. I; Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940). By making the Establishment
Clause part of the supreme law of the land, the Framers sought to pro-
tect our citizenry from the coercive power of majoritarian government
by denying it the authority to legislate in the furtherance of any reli-
gion. Through the ages, the Supreme Court has recognized the neu-
tral, "hands off" role that government in our country must play
regarding the establishment of religion. As Justice Clark eloquently
stated years ago,
The place of religion in our society is an exalted one,
achieved through a long tradition of reliance on the home,
the church and the inviolable citadel of the individual heart
and mind. We have come to recognize through bitter experi-
ence that it is not within the power of government to invade
that citadel, whether its purpose or effect be to aid or
oppose, to advance or retard.
Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 226
(1963).
Although the majority characterizes it otherwise, the "minute of
silence" mandated by the Virginia statute is, like the Trojan Horse, a
hollow guise. But the citizens of Virginia have naught to fear from
Greek soldiers. Instead, the Commonwealth bears its "gift" as a means
of invading Justice Clark’s "inviolable citadel" — the hearts and
minds of Virginia schoolchildren — in an effort to once more usher
state-sponsored religion into public schools.
I subscribe to religious tolerance and, as a Scottish Presbyterian, I
have nothing against prayer — either self-initiated or sponsored by
26 BROWN v. GILMORE
and carried out by families and religious organizations. It is elemen-
tary, moreover, that under our Constitution and the Supreme Court’s
binding interpretations of it, the meticulous separation of church and
state is designed not to protect government from religion, but to pro-
tect American citizens and their religious practices from government.
I.
The majority cannot uphold the constitutionality of the Virginia
statute without directly contravening controlling Supreme Court pre-
cedent, most notably Wallace v. Jaffree, 472 U.S. 38 (1985), and
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).1
These decisions require us to conclude that the Virginia statute fails
to pass constitutional muster under the test set forth in Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971) (holding that, to comport
with the Establishment Clause, "[f]irst, the statute must have a secular
legislative purpose").
Under the Lemon test’s first prong, "it is appropriate to ask
‘whether government’s actual purpose is to endorse or disapprove of
religion.’" Wallace, 472 U.S. at 56 (quoting Lynch v. Donnelly, 465
U.S. 668, 690 (1984) (O’Connor, J., concurring)). In making this
determination, we may inquire "‘whether an objective observer,
acquainted with the text, legislative history, and implementation of
the statute, would perceive it as a state endorsement of prayer in pub-
lic schools.’" Santa Fe, 530 U.S. at 308 (quoting Wallace, 472 U.S.
1In emphasizing the importance of precedent, the Court has forcefully
stated that "unless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower federal
courts no matter how misguided the judges of those courts may think it
to be." Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam). As Chief
Justice Rehnquist observed in Dickerson v. United States, "While stare
decisis is not an inexorable command, . . . the doctrine carries such per-
suasive force that we have always required a departure from precedent
to be supported by some ‘special justification.’" 530 U.S. 428, 443
(2000) (internal citations and quotation marks omitted). There is, in this
case, no special justification to depart from precedent. And even if there
were, only the Supreme Court has the power to overrule one of its prece-
dents. See Wallace, 472 U.S. at 47 n.26 (citation omitted).
BROWN v. GILMORE 27
at 76 (O’Connor, J., concurring in judgment)). Given the circum-
stances surrounding enactment of the Virginia statute, we are com-
pelled to answer these questions with a resounding "Yes!".2
A.
The historical facts surrounding passage of the Virginia statute are
undisputed; it is the interpretation of these facts that lies at the core
of this controversy. Thus, we must bear in mind that our inquiry is
"‘in large part a legal question to be answered on the basis of judicial
interpretation of social facts[,]’" and that "[e]very government prac-
tice must be judged in its unique circumstances[.]" Santa Fe, 530 U.S.
at 315 (quoting Lynch, 465 U.S. at 694 (O’Connor, J., concurring)).
In this inquiry, the following points are salient:
• The Virginia statute’s preamble fails to provide any pur-
pose unrelated to religion, but rather speaks only of
accommodating religious observances on school prop-
erty;
• The legislature defeated a proposed amendment that
would have deleted "pray" as one of just two specific
activities identified by the statute as acceptable uses of
the minute of silence;
• In amending an antecedent, permissive statute, the legis-
lature imposed a mandatory observance, affecting some
one million Virginia schoolchildren;
• The Virginia statute provides for the Commonwealth’s
2
Because I conclude that the Virginia statute violates the Lemon test’s
first prong, it is unnecessary to address the test’s second and third
prongs, i.e., that the statute’s "principal or primary effect must be one
that neither advances nor inhibits religion," and that it "must not foster
an excessive government entanglement with religion." Lemon, 403 U.S.
at 612-13 (internal citations and quotation marks omitted). As Justice
Stevens observed in his opinion for the Court in Wallace, "[N]o consid-
eration of the second or third [Lemon] criteria is necessary if a statute
does not have a clearly secular purpose." 472 U.S. at 56.
28 BROWN v. GILMORE
defense of individual school systems from the inevitable
lawsuits challenging the statute’s constitutionality;
• The legislature contemporaneously passed a joint resolu-
tion denouncing the Supreme Court’s landmark decision
in Engel v. Vitale, 370 U.S. 421 (1962) (declaring that
state-sponsored prayer in public schools contravenes the
Establishment Clause), and requesting Congress to pass
a constitutional amendment permitting voluntary prayer
in the classroom.
The Commonwealth contends that there are only secular purposes
behind the Virginia statute, such as instilling calm in the classroom
and accommodating the free exercise of religion. However, the stat-
ute’s true aim is clear: to encourage students to pray.
I am struck by the pertinent comments of Senator John Edwards of
Roanoke during floor debate of the Virginia statute. Senator Edwards
remarked: "I went to seminary. I’m a religious person. I also respect
the rights of others. . . . When we put in a bill that, in effect, requires
a moment of prayer, then we are offending the First Amendment and
we’re offending those whose beliefs are different than ours." J.A. 180.3
Just a few months later, in his Santa Fe opinion, Justice Stevens
emphasized that "nothing in the Constitution as interpreted by this
Court prohibits any public school student from voluntarily praying at
any time before, during, or after the schoolday. But the religious lib-
erty protected by the Constitution is abridged when the State affirma-
tively sponsors the particular religious practice of prayer." Santa Fe,
530 U.S. at 313.
3
Senator Edwards’s remarks are offered not as proof that the Virginia
statute violates the Establishment Clause, but rather because he recog-
nized from the entirety of the circumstances — as I do, and as any objec-
tive observer should — that the real purpose of the statute is Virginia’s
endorsement of prayer in the Commonwealth’s schools. It is not neces-
sarily helpful to rely on the comments of individual legislators to ascer-
tain the purpose behind the statute, because some insisted that their intent
was purely neutral, while others advanced impermissible motives.
BROWN v. GILMORE 29
B.
To effectively counter the position espoused by my friend Judge
Niemeyer, I need not look beyond the pertinent and binding Supreme
Court decisions — including Wallace and Santa Fe — involving
transgressions of the Establishment Clause in our public schools. Six-
teen years ago in Wallace, the Court determined that the Alabama
statute at issue (permitting a minute of silence for "meditation or vol-
untary prayer" at the start of each schoolday) failed the first prong of
the Lemon test because its object was wholly religious. See 472 U.S.
at 56. The Court so concluded because, in relevant part, the measure’s
sponsor inserted into the legislative record a statement that the statute
was an "effort to return voluntary prayer" to the public schools. See
id. at 56-57. Moreover, there was an existing minute of silence statute
in Alabama, without the "prayer" option, that already fully served any
secular purpose. See id. at 59.4
The majority seeks to distinguish Wallace on the ground that while
the Alabama statute had no secular purpose, the Virginia statute has
at least two neutral goals: accommodating the free exercise of reli-
gion, and improving student focus and discipline. These secular goals,
according to the majority, satisfy the Lemon test’s first prong, because
"a statute fails on this account [only] when ‘there is no evidence of
a legitimate, secular purpose[.]’" Ante, at 16 (quoting Koenick v. Fel-
ton, 190 F.3d 259, 265 (4th Cir. 1999)) (emphasis in original). This
conclusion derives from Justice Stevens’s observation in Wallace that
"a statute that is motivated in part by a religious purpose may satisfy
4
While Justice O’Connor observed, in her concurring opinion in Wal-
lace, that an appropriately drawn moment of silence statute could be con-
stitutional, see 472 U.S. at 73-74 (O’Connor, J., concurring in the
judgment), the Virginia statute is materially indistinguishable from the
Alabama statute found invalid in Wallace. That is, the Virginia statute is
one where "the face of the statute or its legislative history . . . clearly
establish[es] that it seeks to encourage or promote voluntary prayer over
other alternatives, rather than merely provide a quiet moment that may
be dedicated to prayer by those so inclined." Id. at 73. Indeed, Justice
Stevens also recognized that "[t]he legislative intent to return prayer to
the public schools is, of course, quite different from merely protecting
every student’s right to engage in voluntary prayer during an appropriate
moment of silence during the schoolday." Wallace, 472 U.S. at 59.
30 BROWN v. GILMORE
the first [Lemon] criterion." 472 U.S. at 56 (emphasis added). Of
course, this ambiguous comment also bolsters the converse argument
that a statute is not necessarily saved from invalidation under the
Establishment Clause merely because it serves some secular purpose.
Compare Lynch, 465 U.S. at 680 (Burger, C.J.) (recounting that "[t]he
Court has invalidated legislation or governmental action on the
ground that a secular purpose was lacking, but only when it has con-
cluded there was no question that the statute or activity was motivated
wholly by religious considerations"), with id. at 690-91 (O’Connor,
J., concurring) (maintaining that the Lemon test’s first prong "is not
satisfied . . . by the mere existence of some secular purpose, however
dominated by religious purposes").
Although I harbor serious doubts concerning the soundness of the
majority’s viewpoint, I find it unnecessary to engage in this debate,
because it is manifest that a purported secular purpose cannot possibly
satisfy the Lemon test’s first prong if that purpose is patently insin-
cere. See Santa Fe, 530 U.S. at 308 (recognizing that, while "some
deference" is owed to a legislature’s professed secular purpose for an
arguably religious policy, "it is nonetheless the duty of the courts to
‘distinguis[h] a sham secular purpose from a sincere one’") (quoting
Wallace, 472 U.S. at 75 (O’Connor, J., concurring in judgment))
(alteration in original); see also Stone v. Graham, 449 U.S. 39, 41
(1980) (invalidating a Kentucky statute requiring the posting of the
Ten Commandments in public school classrooms, despite purported
secular educational purposes, because "[t]he pre-eminent purpose for
posting the Ten Commandments on schoolroom walls is plainly reli-
gious in nature . . . and no legislative recitation of a supposed secular
purpose can blind us to that fact"); Schempp, 374 U.S. at 224 (reject-
ing assertion that daily readings from the King James version of the
Bible served secular educational purpose, because "[s]urely the place
of the Bible as an instrument of religion cannot be gainsaid, and the
State’s recognition of the pervading religious character of the cere-
mony is evident from" policies allowing use of an alternative version
of the Bible or opting out of the exercise). We are bound by duty to
look below the surface; otherwise, a statute could run afoul of the
Establishment Clause only in a Wallace-type situation where legisla-
tors are blatantly motivated by impermissible religious considerations.
The mandate of the Establishment Clause cannot be so easily and dis-
ingenuously evaded.
BROWN v. GILMORE 31
Indeed, in its recent decision in Santa Fe, the Supreme Court had
no trouble discrediting the school district’s asserted purposes for its
longstanding policy sanctioning student-led prayer prior to high
school football games. The district advanced several secular justifica-
tions for this pre-game "invocation," including fostering free expres-
sion, solemnizing the sporting event, promoting good sportsmanship
and student safety, and establishing an appropriate environment for
competition. See Santa Fe, 530 U.S. at 309. But the Court concluded,
inter alia, that the district’s approval of just one specific kind of mes-
sage, the "invocation" (a term that connotes a religion-infused
address), was not necessary to further these asserted purposes. See id.
at 306-07, 309. Moreover, the Court reasoned that "the fact that only
one student is permitted to give a content-limited message suggests
that this policy does little to ‘foste[r] free expression.’" Id. at 309(alteration in original). The Court’s detailed examination of the poli-
cy’s text in light of the school district’s history of sanctioning pre-
game prayers led to the inevitable conclusion that this policy could
not satisfy the Lemon test’s first prong. Writing for the Court, Justice
Stevens explained:
The District . . . asks us to pretend that we do not recognize
what every Santa Fe High School student understands
clearly — that this policy is about prayer. The District fur-
ther asks us to accept what is obviously untrue: that these
messages are necessary to "solemnize" a football game and
that this single-student, year-long position is essential to the
protection of student speech. We refuse to turn a blind eye
to the context in which this policy arose, and that context
quells any doubt that this policy was implemented with the
purpose of endorsing school prayer.
Id. at 315. Justice Stevens did not permit the First Amendment to be
skirted with a nod and a wink, and neither would I.
C.
In urging us to uphold the constitutionality of the Virginia statute,
the Commonwealth asks us to accept three asserted secular purposes:
(1) "implementing constitutional guarantees of religious liberty within
the public schools"; (2) "maintaining good order and discipline,
32 BROWN v. GILMORE
affording an opportunity for introspection, and improving student
focus on the educational activities of the day"; and (3) "extending the
benefits of a minute of silence to public schools statewide and provid-
ing local school divisions with a defense in any lawsuit against the
Act." Appellees’ Br., at 40. I examine each of these purported justifi-
cations in turn.
1.
First, the Commonwealth defends its explicit references to religion
and prayer in the Virginia statute as means to accommodate the free
exercise of religion. The Commonwealth points to the statute’s pre-
amble, which provides:
In order that the right of every pupil to the free exercise of
religion be guaranteed within the schools and that the free-
dom 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 division shall establish the daily
observance of one minute of silence in each classroom of
the division.
Va. Code Ann. § 22.1-203. This preamble, however, is a contradiction
in terms. That is, if the Commonwealth of Virginia were truly con-
cerned about subjecting students to undue pressure to engage in or
refrain from religious observances during the schoolday, why would
it impose a minute of silence in such a manner that students must con-
template daily whether to pray or not? And, if the Old Dominion gen-
uinely wishes to protect the rights of "every pupil" to the free exercise
of religion, why would the statute only accommodate those students
whose belief systems embrace engaging in prayer while sitting and
while remaining silent?
Just as the single-student, content-limited invocation in Santa Fe
did little to further the asserted goal of fostering free expression, the
Virginia statute is exceedingly limited in its ability to facilitate the
free exercise of religion. This statute seeks to accommodate only
those public school students who engage in religious observances
while silent, seated, and still — that is, primarily those who engage
BROWN v. GILMORE 33
in the accepted and traditional Protestant practices. In so doing, it runs
afoul of and treads upon the traditional prayer practices of, for exam-
ple, Catholic, Muslim, and Jewish children.5 In these circumstances,
the religious practices of such children deserve — and, under the
Constitution, they are entitled to — protection from the actions of
their government.
Moreover, contrary to the Commonwealth’s assertions, the Vir-
ginia statute is entirely unnecessary to protect the free exercise of reli-
gion in public schools. Indeed, the Supreme Court rejected a similar
free exercise argument in support of the statute in Wallace. See 472
U.S. at 57-58 n.45. There, the Court dismissed Governor George C.
Wallace’s contention that the Alabama minute of silence measure was
"best understood as a permissible accommodation of religion[.]" Id.
(citation omitted). The Court concluded that this assertion was based
on the unsupported "theory that the free exercise of religion of some
of the State’s citizens was burdened before the statute was enacted."
Id. That is, Alabama already permitted a minute of silence during
which students could choose to silently pray; therefore, the State did
not need to enact a statute specifying prayer as a favored option in
order to accommodate the free exercise of religion. See id.; cf.
Edwards v. Aguillard, 482 U.S. 578, 587 (1987) (discrediting the con-
tention that a Louisiana statute requiring schools to teach creationism
with evolution advanced academic freedom, because the statute did
not confer "teachers a flexibility that they did not already possess[,]"
5
For instance, in her affidavit, twelfth-grader Vanessa Brown of Fair-
fax, a Catholic, states, "I cannot practice my religion in its customs (i.e.,
standing, kneeling, genuflecting) without violating the law." J.A. 199.
When praying, Brown either stands or kneels, concluding her prayers "by
making the sign of the cross." Id. at 198. Similarly, third-grader Amy
Cohen of McLean, a child of the Jewish faith, notes that she often prays
through song. See id. at 203. Jordan Kupersmith, an eleventh-grader from
Potomac Falls, also expresses his concerns regarding the minute of
silence, reasoning that "[n]ot all religions can pray silently while being
seated. Some must stand, some must kneel on a prayer rug." Id. at 248.
A common thread linking these students with other plaintiffs who sub-
mitted affidavits is a concern over being ridiculed for not bowing their
heads in silent prayer and for asserting opposition to the mandate of the
Virginia statute.
34 BROWN v. GILMORE
as "no law prohibited Louisiana public school teachers from teaching
any scientific theory").
In this instance, rather than adding a reference to "prayer" to its
minute of silence statute, the Virginia legislature refused to remove
it. According to the Commonwealth, an explicit reference was neces-
sary "to guarantee religious liberty and prevent discrimination against
prayer." Appellees’ Br., at 44. This contention, however, like the free
exercise defense asserted by Governor Wallace, is premised on the
theory that the right to engage in silent prayer would somehow be
burdened without inclusion of the word "pray" in the Virginia statute.
In support of this theory, the Commonwealth advances a list of recent
incidents in Virginia showing "a tendency toward discrimination
against religious expression in the public schools," including prohibi-
tions on Bible club meetings and distribution of religious materials on
school property. See id. at 10-11. However, not one of these episodes
involved interference with silent prayer and, thus, these incidents fail
to support the Commonwealth’s theory of inevitable discrimination.
The Commonwealth’s position is supported only by mere specula-
tion that, without express reference to prayer in the Virginia statute,
students would not be advised that prayer is an allowable activity dur-
ing the minute of silence, or they would be admonished that prayer
is an impermissible activity during this time. Such conjecture is
entirely insufficient to justify the Commonwealth’s purported accom-
modation of religious freedom; in turn, it cannot establish a sincere
secular purpose for the inclusion of "pray" in the Virginia statute.6
Because the statute is unnecessary to protect the free exercise of reli-
gion, and because it accommodates only select religious observances,
it simply cannot be justified as a means to ensure the constitutional
rights of Virginia schoolchildren. Cf. Walter v. West Virginia Bd. of
Educ., 610 F. Supp. 1169, 1176 (S.D. W. Va. 1985) (Hallanan, J.)
(rejecting a "free exercise" justification for a West Virginia measure
6
Indeed, the majority rejects as "speculative fear" the plaintiff’s asser-
tion that impressionable schoolchildren will perceive the Virginia statute
as an endorsement of prayer. See ante, at 18. According to Judge Nie-
meyer, "In the context of a facial challenge, this fear is speculative at
best." Ante, at 18. The plaintiff’s contention regarding the impression-
ability of children is further discussed at Part II, infra.
BROWN v. GILMORE 35
of the same ilk, because this rationale was unprecedented and "inher-
ently contradictory"). Those rights are best protected by the First
Amendment itself, as promulgated and ratified over two hundred
years ago.
2.
The Commonwealth asserts that the Virginia statute also serves the
purpose of providing a quiet moment each morning that will allow
students to engage in introspection and to focus on the day ahead,
thereby fostering discipline and order in the classroom. Strikingly, no
such purpose is mentioned in the statute’s preamble (which speaks
only of guaranteeing "the right of every pupil to the free exercise of
religion") or elsewhere in the statute’s text. See Va. Code Ann.
§ 22.1-203. Indeed, the preamble to the Virginia statute stands in stark
contrast to the uncodified preamble to a moment of silence measure
in Georgia, which was upheld by the Eleventh Circuit. See Bown v.
Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997). The pre-
amble to the Georgia statute explains that it was intended to provide
students "a moment of quiet reflection before plunging headlong into
the day’s activities[,]" as a benefit to students and society. Id. at 1466(quoting Moment of Quiet Reflection in Schools Act, Act No. 770,
§ 1, 1994 Ga. Laws 256, 256). Moreover, unlike the text of the Vir-
ginia statute, the text of the Georgia statute makes clear that the "mo-
ment of quiet reflection . . . is not intended to be and shall not be
conducted as a religious service or exercise but shall be considered as
an opportunity for a moment of silent reflection on the anticipated
activities of the day." Id. (quoting Ga. Code Ann. § 20-2-1050(b)
(Michie 1996)).7
7
The Georgia statute is of particular interest because, according to the
Commonwealth, "[t]he court-approved guidelines for implementing the
Georgia statute are the model for the guidelines issued in Virginia."
Appellees’ Br., at 33. Indeed, a June 13, 2000 memorandum to school
officials from Virginia’s Superintendent of Public Instruction adopts the
Georgia statute’s preamble, practically verbatim, as a statement of the
General Assembly of Virginia’s intent in passing its statute (though this
is not the statement of purpose adopted by the Virginia legislature in the
actual text of the statute). The memorandum provides:
36 BROWN v. GILMORE
In concluding that the Georgia statute furthered a sincere secular
purpose, the Eleventh Circuit determined that: the statute’s "preamble
sets forth a clearly secular purpose"; that purpose "is repeated
expressly in the language of the statute itself"; "the statute indicates
that Georgia is not advocating the moment of quiet reflection as a
time for religious activity"; and the legislative history of the statute,
"although somewhat conflicting, is not inconsistent with the express
statutory language articulating a clear secular purpose and disclaiming
a religious purpose." Bown, 112 F.3d at 1469-71. By contrast, there
is absolutely no mention of the Virginia legislature’s second pur-
ported secular purpose — e.g., providing students a minute of valu-
able introspection and instilling calm in the classroom — in its
The General Assembly recognized that, in today’s hectic society,
all too few of our citizens are able to experience a moment of
quiet reflection before plunging headlong into the day’s activi-
ties, and that our young citizens are particularly affected. 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. Accordingly, the
new statute states the following:
In order that the right of every pupil to the free exercise of
religion be guaranteed within the schools . . . .
J.A. 251 (quoting Va. Code Ann. § 22.1-203). The memorandum also
counsels that a copy of the Virginia statute should be sent home with stu-
dents at the beginning of each school year, and it admonishes, like the
policy in Bown, that teachers and administrators should be cautioned "not
to suggest or imply that students should or should not use that time for
prayer." Id. at 252. After newspapers reported that the memorandum
instructed school officials that they should avoid advising students that
prayer was a permissible activity, Virginia’s Attorney General issued a
statement clarifying that students and parents were to be informed in
writing at the beginning of each school year of the right to pray, and that,
"[i]f school officials believe other steps are needed to convey that infor-
mation[,] . . . nothing in the Superintendent’s memorandum prevents that
from being done." Id. at 254. According to the Attorney General’s state-
ment, "It is essential that students be fully advised that they have the fun-
damental right to use the minute of silence for prayer if they so choose."
Id.BROWN v. GILMORE 37
statute. But there are, of course, plenty of references to prayer and
religion.
Moreover, on the one hand, the Eleventh Circuit was persuaded of
the Georgia statute’s constitutionality because it removed an express
reference to "prayer" from its predecessor statute. See id. at 1469 n.3
("The deletion of the words ‘prayer or meditation’ and the substitu-
tion of the words ‘period of quiet reflection’ provides some support
for the idea that the Act’s purpose is secular and is not to establish
a moment of prayer."). On the other hand, the Virginia legislature
refused to remove the word "pray" from its statute. Indeed, that
unwillingness to delete "pray" from the Virginia statute demonstrates
why it is less like the Georgia statute upheld in Bown by the Eleventh
Circuit, and more like the Alabama statute invalidated in Wallace by
the Supreme Court. In Wallace, the Court determined that the addition
of "or voluntary prayer" to the existing statute providing solely for a
period of "meditation" indicated "that the State intended to character-
ize prayer as a favored practice." 472 U.S. at 60. The Court concluded
that "[s]uch an endorsement is not consistent with the established
principle that the government must pursue a course of complete neu-
trality toward religion." Id. Here, too, it is inescapable that the Vir-
ginia legislature intended to endorse prayer as a favored practice, in
violation of the Establishment Clause.8
Though the majority concludes that the Virginia statute "is
designed to provide each student at the beginning of each day an
opportunity to think, to meditate, to quiet emotions, to clear the mind,
to focus on the day, to relax, to doze, or to pray[,]" ante, at 24, only
two of these activities — meditating and praying — are expressly
endorsed by the Commonwealth. Moreover, while the majority is sat-
isfied that, "[b]ecause the state imposes no substantive requirement
8
This impermissible religious purpose is evident throughout the Vir-
ginia statute’s text and legislative history, not just from an isolated refer-
ence to prayer. Thus, it is irrelevant to our inquiry whether use of the
word "pray" in a minute of silence measure constitutes a per se violation
of the Establishment Clause. See ante, at 24 ("The statute’s use of the
word ‘pray,’ in listing an unlimited range of mental activities that are
authorized during the minute of silence, cannot by itself be a ground for
finding the statute unconstitutional.").
38 BROWN v. GILMORE
during the silence, [the statute] is not religiously coercive[,]" id., I am
not comforted by the Virginia statute’s allowance of "choice." Simply
because the Commonwealth does not explicitly require its public
school students to pray does not mean that they are not being subtly
coerced to do so.
3.
Finally, the Commonwealth insists that the third secular purpose of
the Virginia statute was to amend an existing measure: first, to impose
the mandatory — rather than permissive — observance of a minute
of silence in order to "extend[ ] the benefits . . . to public schools
statewide"; and, second, to authorize legal representation by the
Attorney General in lawsuits challenging the statute. See Appellees’
Br., at 40. These assertions command little consideration. That is, the
compulsory nature of the statute plainly renders it even more offen-
sive than the Wallace statute, which at least made the exercise
optional. Moreover, the Commonwealth’s provision of legal represen-
tation for the defense of local schools is a telling acknowledgment
that the statute invites a constitutional challenge.
II.
Although I need not address the additional requirements of the
Lemon test, see supra note 2, I am compelled to comment on the posi-
tion taken by the majority in its discussion regarding the test’s second
prong. The majority rebuffs the plaintiff’s assertion that, no matter
whether the Virginia statute’s purpose is secular, its "inevitable effect
. . . will be to promote prayer by creating the perception, especially
from the viewpoint of young, impressionable school children, that the
Commonwealth endorses prayer." Ante, at 18. In doing so, Judge Nie-
meyer relies on the Supreme Court’s recent decision in Good News
Club v. Milford Central School, 121 S. Ct. 2093 (2001), for the prop-
osition that the special impressionability of children is irrelevant in
this case to determining whether the Virginia statute encroaches on
the Establishment Clause. See ante, at 18.
I must take issue with Judge Niemeyer’s characterization of the
decision in Good News Club. Therein, the Court concluded that a
school’s refusal to permit after-hours meetings on its property by a
BROWN v. GILMORE 39
Christian children’s club violated the club’s free speech rights, and
that this infringement was unnecessary under the Establishment
Clause. In so holding, Justice Thomas pointed out that the impression-
ability of students would not necessarily be relevant to the Establish-
ment Clause calculus where "the school was not actually advancing
religion[.]" Id. In seeking to justify its position, the majority seizes
upon this language. See ante, at 18 ("Despite language in Supreme
Court precedent recognizing the impressionability of elementary
school children and the greater threat of religious coercion attendant
to religious displays in elementary schools, nothing the Court has said
‘suggest[s] that, when the school was not actually advancing religion,
the impressionability of students would be relevant to the Establish-
ment Clause issue.’") (internal citations omitted). The majority’s anal-
ysis begs the question because it assumes, incorrectly, that the
Virginia statute does not "advance religion."9
Contrary to the majority, I find ample support in the Supreme
Court’s decisions for the conclusion that Virginia’s one million
schoolchildren, some as young as kindergartners, are especially
deserving of protection from the Commonwealth’s unconstitutional
endorsement of prayer. Indeed, in 1987, Justice Brennan explicitly
stated that the Court
9
Moreover, it seems to me that Justice Thomas simply recognized that
"whatever significance" the Court has traditionally assigned to the
impressionability of younger children in Establishment Clause cases, this
factor has never been used to invalidate the type of conduct at issue in
Good News Club — "private religious conduct during nonschool hours
[that] merely . . . takes place on school premises where elementary
school children may be present." 121 S. Ct. at 2104 (emphasis added).
Nonetheless, Justice Thomas proceeded to consider the possible misper-
ceptions of schoolchildren with regard to after-hours religious activities
on school grounds. See id. at 2106. In the end, he concluded that "these
circumstances simply do not support the theory that small children would
perceive endorsement here[,]" and that he could not say "the danger that
children would misperceive the endorsement of religion is any greater
than the danger that they would perceive a hostility toward the religious
viewpoint if the Club were excluded from the public forum." Id. Because
of these particular circumstances, Justice Thomas "decline[d] to employ
Establishment Clause jurisprudence using a modified heckler’s veto, in
which a group’s religious activity can be proscribed on the basis of what
the youngest members of the audience might misperceive." Id.40 BROWN v. GILMORE
has been particularly vigilant in monitoring compliance with
the Establishment Clause in elementary and secondary
schools. Families entrust public schools with the education
of their children, but condition their trust on the understand-
ing that the classroom will not purposely be used to advance
religious views that may conflict with the private beliefs of
the student and his or her family. Students in such institu-
tions are impressionable and their attendance is involuntary.
The State exerts great authority and coercive power through
mandatory attendance requirements, and because of the stu-
dents’ emulation of teachers as role models and the chil-
dren’s susceptibility to peer pressure. Furthermore, the
public school is at once the symbol of our democracy and
the most pervasive means for promoting our common des-
tiny. In no activity of the State is it more vital to keep out
divisive forces than in its schools.
Edwards, 482 U.S. at 583-84 (internal citations, quotation marks, and
alterations omitted).
III.
In Virginia, impressionable children must now engage in a minute
of silence — and are encouraged to silently pray — at the start of
every schoolday. This exercise is sponsored by their government and
implemented by their teachers. The observance occurs in Virginia
public school classrooms each morning, in a place and at a time when
the presence of these schoolchildren is required.
Because this trespass on First Amendment rights is one that we
should not abide, I respectfully dissent.