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First Amendment Victory in Illinois Establishment Clause Case

Illinois used to have a “moment of silence” law, passed in 1969, that allowed teachers to hold a moment of silence with a specific provision that it was not to be considered to be an endorsement of prayer.

In October, 2007, the Illinois legislature amended the law to make the period of silence mandatory. An Atheist parent brought an action to strike the law down as unconstitutional. The Northern District of Illinois ruled today that the moment of silence law was likely to be struck down at trial as unconstitutionally vague and as a violation of the establishment clause.

The interesting point was the establishment clause analysis.

The language of the statute gives children a choice between using the moment of silence for prayer or pondering “the anticipated activities of the day.”

At a basic level, the court notes that any pupil choosing to do anything but pray or think about that day’s activities—the previous night’s Bears game, for example—would be in violation of the statute.

At a more fundamental level, though, by giving pupils a choice between two options, the first of which is prayer, the statute forces pupils to consider prayer in determining how to use their period of silence. This court (as well as plaintiff) agrees … that a period of silence alone is not unconstitutional. The court must be mindful, however, of the Illinois legislature’s decision to add the word “prayer” to both the title and text of an existing statute, as well as the problems discussed above. A period of silence that forces children to consider prayer crosses the line by “convey[ing] or attempting to convey the message that children should use the moment of silence for prayer,” in a possible violation of the Establishment Clause of the Constitution. See Wallace v. Jaffree, 472 U.S. 38, 73 (1985).


The less interesting vagueness analysis discussed how the statute mandates the moment of silence, but does not discuss how long the silence should be, how much silence was required, or what the penalties are for non compliance.

Both of the infirmities come as no great surprise. Laws that are passed with religious fervor are rarely subject to much actual thought.

Here’s my big question for the “pray in school” people. If you are a member of a family that feels the need to have their kid pray every day, why the hell can’t your kid pray at your breakfast table? That ends all of this divisiveness, doesn’t it?

Kids are in school for seven hours a day. The other 17 hours can be spent in “quiet reflection,” in prayer, smearing themselves with peanut butter, or doing the limbo. If your kid absolutely needs to pray at school, why can’t he do so at recess, at lunch, or on the way to the bathroom?

Anyone who supports or votes for a “moment of silence” law is trying to be sneaky about pushing state-sponsored proselytizing. Anyone who denies it is a liar — which should come as no surprise to anyone.

The case is Sherman v. Township High School. Link to order from How Appealing.

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