Silence of the Lambs: Are States Attempting to Establish Religion in Public Schools?

Article excerpt

Congress shall make no law respecting an establishment of religion . . . .1


The proper role of religion in public schools has been a topic of bitter debate for many years.2 While one group of individuals believes that there should be a complete separation of church and state, another group believes that religion should have an integral place in public education. Although both groups have looked to the circumstances surrounding the enactment of the First Amendment to support their respective positions, each has been unable to find clear, definitive support regarding the appropriate relationship between religion and public schools, as there was no public education system at that time.3 One major issue that has arisen in the context of this controversy involves state statutes requiring public school students to observe a "moment of silence" at the beginning of each school day.4

Both opponents and supporters of religion in public schools have openly criticized these laws. Opponents of religion in public schools argue that the moment of silence statutes are a surreptitious attempt to reintroduce prayer into public schools and that these laws therefore violate the Establishment Clause.5 Meanwhile, those who support religious activity in public schools believe that the statutes do not adequately satisfy a child's desire to openly engage in religious expression. Defenders of the statutes have long argued that the laws neither promote nor inhibit religion and that they are primarily designed to provide students with a calming environment to counteract the hectic circumstances in their lives.6 This Note posits that a moment of silence statute, when written and administered in a neutral manner, does not violate the Establishment Clause; rather, these laws represent a fair compromise between the views of opponents and supporters of religion in public schools.

Part II of this Note briefly examines the history of the Establishment Clause, which opponents of moment of silence statutes have used to challenge these laws.7 Part III of this Note outlines the three levels of scrutiny that the Supreme Court has employed in deciding Establishment Clause cases. Part IV of this Note traces the downfall of state-sponsored school prayers and the subsequent development of the moment of silence statutes. Finally, Part V asserts that the moment of silence statutes are constitutional and presents a compromise between the views of those who advocate a complete separation of church and state and those who support a substantial presence for religion in the public school system.


A. The Text and Legislative History

The First Amendment states that "Congress shall make no law respecting an establishment of religion . . . ."8 It does not specify what "establishment" means, nor does it specify who should be responsible for defining the term.9 To discover the true meaning of the Establishment Clause, it is therefore necessary to look to the history of the First Amendment in addition to the text.

The Founding Fathers' ancestors fled from England to escape religious intolerance and persecution.10 Despite this history, most of the colonial settlements were dominated by a particular religion, and the governments of those colonies discriminated against other faiths.11 However, the Founding Fathers did not forget the persecution of their ancestors and penned the First Amendment to the United States Constitution to prevent the establishment of an official religion in the new nation.12 During the Constitutional Convention, the Framers considered inserting a provision guaranteeing freedom of religion. On June 8, 1789, James Madison proposed the following amendments to the House of Representatives:

The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. …


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