- The Washington Times - Thursday, March 16, 2000

Virginia's new moment of silence rule, which would require public schools to set aside a minute every day to meditate or pray, will likely go from the desk of Gov. James S. Gilmore III to a federal courtroom.

Although the governor still must sign the bill, which should happen sometime in the next few weeks, both supporters and opponents say the measure will probably end up in court.

But they disagree as to what a court would do.

The question for a judge, according to the American Civil Liberties Union's Virginia chapter, will be whether the proposed law is a backdoor entry for school prayer or a neutral policy that passes Constitutional muster. For that a judge must look at legislative history, the ACLU argues.

Comments from lawmakers like Lionell Spruill Sr., Chesapeake Democrat, who told fellow lawmakers he didn't know why they were afraid to admit the bill was about prayer, could bolster the ACLU's case.

"I question why in the world are we afraid to use the word 'prayer'? Why are we hiding behind [silence]? Are we scared that we won't get re-elected to office?" Mr. Spruill asked fellow delegates on the House floor.

But some of the bill's supporters say the law is so clearly neutral on its face that a judge won't have to examine its history.

"They will look at legislative history when [a law] is not clear on its face. In this legislation, it's pretty clear," said John Whitehead, founder of the Rutherford Institute, a Charlottesville-based organization concerned with First Amendment rights.

And Attorney General Mark L. Earley, who the bill requires to defend any challenges, said the most important part of legislative intent is what the bill's sponsor had in mind. In this case, that's Sen. Warren E. Barry, Fairfax Republican, who went out of his way during the debates to say he did not mean for this to be a religious overture.

He and Mr. Gilmore both said this week they are ready to back the bill, and neither foresees constitutional problems.

"The Constitution was intended to prevent a state from setting up a church, and I don't think we have any intention of directing anybody in that manner," said Mr. Gilmore, a former state attorney general himself.

The bill to create a mandatory minute of silence passed overwhelmingly in both the state House and Senate, but not before going through several versions and hours of debate.

Originally, the bill would have required teachers to announce to the class that the minute was to be used for prayer, reflection or meditation a particular sticking point for opponents.

A constitutional law professor from the University of Richmond told the House Education Committee the bill as it stood then was clearly in violation of the Constitution.

Then the bill was gutted, and a House committee essentially reaffirmed the existing state law, which allowed but did not require schools to have a minute of silence, in which children could choose what to do.

The full House then changed the committee version and required school boards to develop a policy for each school to have a minute of silence.

That the law allows students to choose either to pray or not to pray is critical, Mr. Whitehead said.

"Most of the cases that have been lost in terms of the establishment [of religion] clause have been lost on the grounds that the government has mandated it," he said. "In this case, you don't have that."

The ACLU argues the original bill was certainly unconstitutional, but is less sure about the current version, in which prayer is "almost an afterthought" to the minute of silence, said Kent Willis, executive director of the Virginia chapter.

He predicted problems will arise when individual school districts pass their policies about how a minute of silence will be conducted.

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