Silence Measure Likely Headed for Federal Courts

Article excerpt

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. …