- The Washington Times - Tuesday, July 31, 2001

A Dickensian caricature of the law ala Jarndyce vs. Jarndyce in Bleak House unfolded last week in the U.S. 4th Circuit Court of Appeals. A schismatic three member panel upheld the constitutionality of a Virginia "minute of silence" statute over the fuming of the Virginia chapter of the American Civil Liberties Union and sister proselytizers for an impermeable Chinese Wall of separation between church and state.

Writing for a slim 2-to-1 majority in Brown vs. Gilmore (July 24, 2001), Judge Paul Niemeyer insisted that 60 seconds of quietude as a segue between public classroom pandemonium and scholarship served a secular purpose without officially nudging students toward the Paternoster or other prayer.

A feisty dissent by Judge Robert King maintained that the Virginia law transgressed the church-state sermon of the United States Supreme Court in Wallace vs. Jaffrey (1985) because its proponents brimmed with the religious zeal of Savonarola, John Knox, and John Calvin.

The Brown ruling is emblematic of the frequent divorce of lofty constitutional jurisprudence from earthbound existence. In 2000, the Virginia legislature enacted a minute of silence prescription for public elementary and secondary schools 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."

The 2000 law superceded a 1976 enactment which made a "minute of silence" ritual a local school option. Approximately 14 to 20 school divisions had exercised the option, and a Virginia Superintendent of Schools survey found no ensuing peer-on-peer religious harassment in the varied jurisdictions.

Now fix your eyes upon elementary and secondary school students overflowing with hormone-fueled coltish energy. Do you think they are more likely to devote a minute of silence to flirt with the lark-like signature thoughts of Tom Sawyer, Huckleberry Finn, and Becky Thatcher, or with the solemnities of the Bible, the Holy Koran, or the mantras of Buddha? The question answers itself. Indeed, the attackers of the 2000 law failed to marshal a single student who, under its 24-year-old predecessor, had ever employed a minute of silence to pray.

They also failed to identify even one student who vowed to pray under the auspices of the new enactment. In other words, the altercation in the court of appeals over sublime constitutional principles seemed much ado about nothing, similar to warring over whether communion should be celebrated with leavened or unleavened bread.

The Wallace vs. Jaffrey precedent deserves the lion's share of culpability. There the Supreme Court held that a moment of silence law motivated by the vain hope of smuggling student prayer into public classrooms violated the establishment clause of the First Amendment. On the other hand, a majority concurrently declared that such laws would pass constitutional muster if their purpose were secular, i.e., the creation of a classroom atmosphere more simpatico with the cerebral faculties than the cerebellum. In discerning legislative intent (religious or secular), the Court amplified, statements of legislators or executive officials were fair game.

But the motivations of legislators or governors are typically mixed and as varied as the flowers that bloom in the spring. The search for intent under Wallace encroaches on the domain of the metaphysical.

Thus, in the Brown case, sponsor and state Sen. Warren Barry expressed a hope that his bill would discourage school violence by fostering introspection, and disavowed an intent to force prayer in schools. But Mr. Barry added, "This country was based on belief in God, and maybe we need to look at that again."

Suppose Mr. Barry's sponsorship pivoted 80 percent on deterring school violence and 20 percent on encouraging pupil attachment to the teachings of God. Should his intent under Wallace be classified as secular or religious? The precedent is clueless.

Statutes, moreover, are children of collective decisions typically featuring voting for disparate reasons. For instance, in the Brown litigation, in contrast to Sen. Barry, Virginia House of Delegates floor manager Robert McDonnell touted the minute of silence bill as 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 the beginning of the day with a period of calm which would lead to better discipline in the classroom."

Religion made not even a fleeting Shakespearean Rosencrantz and Guildenstern appearance in Mr. Mcdonnell's explanation. How should his purpose be weighed against that of Mr. Barry's? And what weight should be given to votes cast as political logrolling favors in determining legislative intent? These questions defy non-arbitrary answers. Judges are invited under Wallace to scour legislative history to support their personal church-state prejudices. Idiosyncrasy trumps law.

To prevent moment of silence frolics like Brown, the Supreme Court should establish an evidentiary threshold that religion in fact has been materially encouraged by the law before permitting a church-state constitutional challenge. Further, the ACLU and its local chapters should reconsider their hyper-glandular opposition to innocuous whiffs of church-state fellowship. Otherwise, members might come to be defined as someone who wakes each night sizzling with anger over the possibility that somewhere, someplace, a religious crumb might be found in a public forum.

Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law firm headquartered in Virginia.

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