(Written for a Public Law & Judicial Process [GOVT301] class at George Mason University.)

There are few issues as uselessly contentious as the issue of silence. What I mean, of course, is legislation which requires that school children observe a “minute of silence” during school hours. The issue in question is whether or not statutes which require minutes of silence violate the First Amendment to the United States Constitution which guarantees that the people are free from government establishment of religion and government limitation of the practice of their own religion.

In the state of Virginia, a statute entitled “Daily observance of one minute of silence” was enacted into law on July 1, 2000. This statute provided that, “In order that the right of every pupil to the free exercise of religion be guaranteed within the schools and that the freedom of each individual pupil be subject to the least possible pressure from the Commonwealth either to engage in, or to refrain from, religious observation on school grounds, the school board of each school division shall establish the daily observance of one minute of silence in each classroom of the division.”1

Almost as soon as the legislature had completed its voting, the Virginia chapter of the American Civil Liberties Union had brought the case to civil court, arguing that the civil rights of the students they represented had been violated by the state’s encouragement of prayer (the second paragraph of the statute included a list of acceptable activities during the minute: “meditate, pray, or engage in any other silent activity”).2 After an early loss in a federal district court, the ACLU pressed on to the U.S. 4th Circuit Court of Appeals.

Judge Paul V. Niemeyer wrote the ruling in this July 24, 2001, case for the 2-1 majority saying that the Virginia statute was, “at most a minor and nonintrusive accommodation of religion,” and that it served religious interests just as much as it served secular ones.3 The United States Supreme Court denied the ACLU a writ of certiorari on October 29, 2001, effectively granting its agreement with the previous ruling of the Appeals Court.4

As mentioned in brief earlier, the crux of the argument is whether an enforced “minute of silence” violates the first amendment right to freedom of religion and the concept of a “separation of church and state.” To examine this, we must begin by clearly defining the content and intention of that amendment.

The wording states simply and succinctly that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . “5 What this means is that the government may not actively support nor force anybody to practice any religion, and nor may the government obstruct people from exercising their own religion. In order for a statute to be found in violation of this limitation, it must be shown that the statute was passed with the intention or effect of forcing religion on a populace.

There have been a large number of rulings in case law regarding to the establishment clause and public schools. For example, in Engel v. Vitale the Supreme Court ruled in 1962 that a morning prayer recitation in a public school (during which students could remain silent or leave the room if they wished) violated the clause by encouraging the practice of a particular religion. “[W]e think that the constitutional prohibition against laws respecting the establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.”6

Likewise, the Supreme Court heard Abington School District v. Schempp the next year which dealt with a requirement that each school day begin with selected reading from the Bible. The court found that, “[T]he [exercises of scripture reading] and the law requiring them are in violation of the Establishment Clause.”7

The closest dealing that the Supreme Court has had with moments of silence was the 1985 case Wallace v. Jaffree. It would appear in this case that the Supreme Court took the side opposite of that which I am presenting today, but on a deeper examination it is clear that moment of silence legislation—in and of itself—does not run askew of the Establishment Clause. There are some small but important differences between the minute of silence legislation passed in Alabama that the court overturned and the minute of silence legislation in Virginia.

The decision which struck down Alabama’s minute of silence specified the method in which the legislation was passed, and in this case the words “or prayer” had been amended into the bill with the intention of reintroducing prayer into the school. This showed what was, effectively, a clear religious intent in the adoption of the law and a violation of the Establishment Clause.8

What is clearly implied by the nature of this decision is that the minute of silence is not a violation of the Establishment Clause, but rather to pass such legislation with the intent of encouraging religious activity is. It is in this context that we can begin to examine the legal issues which effect Virginia’s statute.

As I have referenced earlier, the Virginia statute reads that, “During such one-minute period of silence, the teacher responsible for each classroom shall take care that all pupils remain seated and silent and make no distracting display to the end 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.”9

By the very nature and wording of the statute, it is obvious why the Supreme Court chose not to entertain the case. While prayer is specifically mentioned as a possible activity, the content of the law (and of the actual one minute in classrooms statewide) allow for any silent activity. This extends from the specifically mentioned meditation and prayer, to other silent activities not listed—drawing, writing, daydreaming, thinking, or working on homework.

The government is not specifically encouraging any particular activity over another, and therefore cannot be legally construed to have established religion. On the contrary, the Virginia statute encourages student individuality and free religious practice. This non-religious nature of the bill was affirmed by the decision of the United States District Court for the Eastern District of Virginia (Alexandria Division) on October 26, 2000, which spoke of the original floor discussions in the Virginia Senate. Senator Warren Barry, the bill’s sponsor, had specifically explained in the discussion that the goal of the bill was not to inject religion into the schools, but rather to guarantee that students may freely practice their religion and have a time for “introspection.” In fact, the stated purpose was to reduce school violence (or a ‘nibble’ in that direction) rather than instill any religion.10

On July 13, 2000, the Virginia Commonwealth’s Superintendent of Public Instruction specifically instructed all Virginia school superintendents that the minute of silence was not intended as a religious exercise and should not be conducted as such, and furthermore instructed teachers and administrators to not even imply that the time could be used for prayer but rather for an opportunity to reflect on the day’s activities. The state attorney general issued a similar statement on June 14, 2000.11

It is under these circumstances that the court ordered the case dismissed, stating first that, ” . . . the Act is not associated with a religious exercise. The Commonwealth of Virginia for the past 24 years in at least 20 local school districts has invoked the same moment of silence, which is now mandatory, in their classrooms. There is no indication that any of them used the period as a government prayer exercise.”12

Secondly, the court’s findings stated that, ” . . . the Act and the facts of this case show that Virginia has done nothing intended to convey a message that students should use the moment to pray. The Act instructs that students should use the moment to be silent. . . . The momentary silence neither advances nor inhibits religion.”13

As mentioned earlier, this landmark decision in support of a non-religious moment of silence (which can be used religiously if students individually choose) has been upheld by the United States Supreme Court, and rightfully so. To assume that a moment of silence—an inherently neutral act—supports, endorses, establishes, or limits any religious practice is not founded in either case law or logic. As long as a minute of silence statute does not come with a legislative intent of encouraging prayer, it is not unconstitutional and it is not illegal.

To make an argument that anybody’s rights are trampled by having to be quiet for a minute, the opposing side makes a fundamental mistake—they have nothing to attack. Silence is, indeed, nothing by definition. There is no coercion and students may, indeed do anything. Rather than limiting the freedom of religion, a minute of silence in the public schools encourages it by providing a moment where students may do whatever silent activity they wish—whether it be prayer in accordance with their own religious structure, or something secular for those who have none.

Interestingly enough, most religious circles don’t want anything more than a moment of silence. In fact, many Christian groups consider the minute of silence statute to be a perfect compromise between school organized prayer—often unpopular across political and religious spectrums—and a complete lack of prayer. “The problem with organized school prayer was that it could too easily contradict the religious teachings of the parents,” said author Stephen L. Carter for Christianity Today. “Many religious parents, however, are understandably uneasy about sending their children to schools that are aggressively secular.”14 According to many like-minded people, the minute of silence provides a neutral ground where the religious may pray in keeping with their beliefs while the non-religious may not be directly exposed to it at all.

Choice—the concept upon which the moment of silence is truly based—is the core behind our civil rights. Our freedom of speech guarantees that we can choose to say what we wish. The freedom of the press guarantees that we can choose to print whatever we wish. The freedom of religion, likewise, guarantees that we can choose to worship and practice or faiths (or lacks of faith) how we choose. This very concept is evident and present in Virginia’s minute of silence legislation.

To attack this legislation as unconstitutional or damaging to the freedom of religion is to misunderstand its intent and its implementation which does entirely the opposite. There is a huge difference between the establishment of religion and giving students time to practice theirs which is glossed over by the opposition in an attempt to make the issue into something it is not—an issue of civil rights. Nobody is limited from their free practice, and no religion is required or established.

While organized school prayer is indeed unconstitutional, it is the inherent lack of any organization that makes a minute of silence a 100 percent different—and a 100 percent permissible—issue. The case law of Brown v. Gilmore makes it perfectly clear that our Judicial system agrees with this assertion, saying, “The court finds that the Commonwealth’s Daily Observance of One Minute of Silence Act is constitutional, the Act was enacted for a secular purpose, does not advance or inhibit religion, nor is there excessive entanglement with religion15  . . . and this case is DISMISSED.”16


1 Code of Virginia §22.1-203, Daily observance of one minute of silence. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+22.1-203

2 Virginia moment-of-silence law survives court test. Church & State, v.54 i.11 p.3. Dec. 2001.

3 Virginia moment-of-silence law survives court test. Church & State, v.54 i.11 p.3. Dec. 2001.

4 Opinion from Ed Brown, et al. v. James S. Gilmore III, Governor of Virginia, et al 01-384. Supreme Court of the United States. Oct. 29, 2001.

5 Amendment I. The United States Constitution. 1787.

6 Opinion from Engel et al v. Vitale et al. 370 U.S. 421. Supreme Court of the United States. Jun. 25, 1962. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=370&invol=421

7 Opinion from Abington School District v. Schempp, 374 U.S. 203. Supreme Court of the United States. June 17, 1963. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=374&invol=203

8 Opinion from Wallace v. Jaffree, 472 U.S. 38. Supreme Court of the United States. Jun. 4, 1985. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=472&invol=38

9 Code of Virginia §22.1-203, Daily observance of one minute of silence. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+22.1-203

10Opinion from Brown v. Gilmore 00-1044-A. United States District Court for the Eastern District of Virginia (Alexandria Division). Oct. 26, 2000. Pages 3-4.

11 Opinion from Brown v. Gilmore 00-1044-A. Pages 5-6.

12 Opinion from Brown v. Gilmore 00-1044-A. Page 13.

13 Opinion from Brown v. Gilmore 00-1044-A. Page 14.

14 Carter, Stephen L. A quiet compromise: why a moment of silence is better than school prayer. Christianity Today. v.46 i.2 p. 82. Feb. 4, 2002.

15 Opinion from Brown v. Gilmore 00-1044-A. Page 15.

16 Court Order from Brown v. Gilmore 00-1044-A. United States District Court for the Eastern District of Virginia (Alexandria Division). Oct. 26, 2000.