The Handy Law Answer Book. David L Hudson

display permissible. O’Connor proposed what she termed a “clarification” of Lemon by applying an endorsement analysis. Justice O’Connor stated: “The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”

      If the government places a Ten Commandments monument on government property, does that violate the Establishment Clause?

      Maybe, but it would depend on the particular circumstances. In June 2005 the U.S. Supreme Court decided two Ten Commandments cases and reached opposite results in 5-to-4 decisions. In Van Orden v. Perry (2005; see LegalSpeak, p. 42), the Court ruled 5 to 4 that a Ten Commandments monument in a Texas public park that had been there for 40 years and was surrounded by other historical landmarks did not violate the Establishment Clause. However, in McCreary County v. ACLU of Kentucky, the U.S. Supreme Court ruled 5 to 4 that Ten Commandments displays in two Kentucky county courthouses did violate the Establishment Clause. The Court emphasized that the displays initially contained only the Ten Commandments and that they were challenged soon after their display.

      In an earlier decision Stone v. Graham (1980), a divided Court struck down a Kentucky law that required the posting of the Ten Commandments in public school classrooms. The difficulty in these cases is that different justices have very different interpretations of the Establishment Clause. Lower courts now reach different results in Ten Commandments cases.

      What explained the difference between the two 2005 decisions by the U.S. Supreme Court?

      There were significant factual differences between the Texas park case and the Kentucky courthouse case. The monument in the Texas park had been there for nearly 40 years and it was surrounded by many other monuments. It also was located in a park where people did not have to visit on a daily basis. The displays in the Kentucky courthouses were there for a much shorter time, originally not surrounded by other displays and were located in a courthouse.

      However, these differences did not matter for eight of the nine U.S. Supreme Court justices. Four justices voted to uphold both displays and four justices voted to strike down both displays. It was only Justice Steven Breyer who voted to uphold the Texas monument and strike down the Kentucky display. This leaves this area of the law less than clear, which explains why there are so many Ten Commandment lawsuits in the country now.

      It is still an ongoing debate whether or not prayer in public schools violates the separation of Church and State (iStock).

      Does school prayer violate the Establishment Clause?

      School-sponsored prayer in public schools violates the Establishment Clause, but students praying on their own does not. In other words, teacher-led prayer constitutes an impermissible endorsement of religion, but student-led prayer very well may not pose an Establishment Clause problem. In the early 1960s the U.S. Supreme Court in Engel v. Vitale (1962) and Abington School District v. Schempp (1963) ruled that mandatory, teacher-led prayer and reading of Bible verses violated the Establishment Clause. The Court focused on the coercive pressure placed upon children who did not conform to the majority (Christian) religion.

      What was the prayer at issue in the Engel v. Vitale case?

      In Engel v. Vitale (1962) the issue concerned a prayer that the Board of Regents of the State of New York “recommended” different school districts adopt as a nondenominational prayer. A school board in North Hempstead, New York, adopted a resolution that “the Regents prayer be said daily in our schools.” The prayer went as follows: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The Supreme Court, however, decided that even this generic prayer violates the First Amendment.

      Justice Hugo Black (majority): “It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America…. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say that the people’s religious must not be subjected to the pressures of government for change each time a new political administration is elected to office.”

      Justice Potter Stewart (dissenting): “With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.”

      Is a moment of silence law constitutional?

      It depends. Moment of silence laws are constitutional if government officials had secular reasons for drafting them, rather than simply attempting to bring prayer back into public schools. In Wallace v. Jaffree (1985), the U.S. Supreme Court invalidated an Alabama moment of silence law that the sponsor of the measure bluntly stated was designed to bring prayer back into the public schools. Alabama legislators had amended an existing moment of silence law by adding the words “or voluntary prayer.” The sponsor admitted that restoring prayer to schools was his only motivation. Under those facts, a majority of the Court found a clear religious purpose in violation of the Lemon test.

      However, lower courts have upheld moment of silence laws in which legislators advanced for secular purposes. In Croft v. Perry (5^th Cir. 2009), the 5^th U.S. Circuit Court of Appeals upheld a Texas moment of silence law. The appeals court accepted the following secular purposes for the law: “fostering patriotism, providing a period for thoughtful contemplation, and protecting religious freedom.” Other federal appeals court have upheld moment of silence laws in Georgia and Virginia in recent years.

      In the case out of Georgia, the Georgia legislature referred to its measure as the “Moment of Quiet Reflection” law. The 11^th U.S. Circuit Court of Appeals in Bown v. Gwinnett County Schools (11^th Cir. 1997) reasoned that the valid secular purpose of this law was to give students the opportunity to reflect on the coming day.

      What opinions were rendered by the U.S. Supreme Court concerning Wallace v. Jaffree.

      The justices made the following statements concerning the moment of silence issue in Wallace v. Jaffree (1985).

      Justice John Paul Stevens (majority): “The 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…. The addition of ‘or voluntary prayer’ indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.”

      Justice Lewis Powell (concurring): “The record before us, however, makes clear that Alabama’s purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code 16-1-20.1 (Supp. 1984), freely acknowledged that the purpose of this statute was ‘to return voluntary prayer’ to the public schools.”

      Justice Sandra Day O’Connor (concurring): “A state-sponsored moment of silence in the public schools is different from state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious