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Published in Print: November 7, 2001, as Minute of Silence Stands As High Court Declines Case

Minute of Silence Stands As High Court Declines Case

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The U.S. Supreme Court declined last week to review the constitutionality of a Virginia law that requires a daily minute of silence for public school students to "meditate, pray, or engage in any other silent activity."

Although it is not a ruling on the merits of the law and sets no national precedent, the court's action removes the last legal cloud over enforcement of the Virginia law, and it could encourage other states to adopt similar measures.

Separately, the court heard arguments last week in cases on child pornography and on racial preferences in government contracting. The justices were displaced from the Supreme Court building by the detection of small amounts of the anthrax bacterium, and they convened at another federal courthouse here.

The justices on Oct. 29 refused without comment or recorded dissent to hear the challenge to the minute-of-silence law in Brown v. Gilmore (Case No. 01-384). The Virginia legislature passed the law last year, and the measure has been enforced since the beginning of the 2000-01 school year.

'Minor and Nonintrusive'

The law was upheld by a federal district judge in Alexandria, Va., last year and by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va. A panel of the 4th Circuit court held 2-1 last July that the law did not violate the First Amendment's prohibition against a state establishment of religion.

"In establishing a minute of silence, during which students may choose to pray or meditate in a silent and nonthreatening manner, Virginia has introduced at most a minor and nonintrusive accommodation of religion that does not establish religion," said the appellate court opinion.

The American Civil Liberties Union, suing on behalf of seven Virginia families, appealed to the high court and also asked Chief Justice William H. Rehnquist to block further enforcement of the law at the start of the current school year. In a Sept. 12 opinion denying the request, Chief Justice Rehnquist disagreed with the ACLU's contention that the Virginia case was "virtually a replay of Wallace v. Jaffree," the 1985 case in which the Supreme Court struck down an Alabama moment-of-silence law.

In Wallace, the high court found that there was no secular purpose behind the Alabama statute, and the state had conceded that its purpose was to return prayer to the public schools, the chief justice said.

He said that in the Virginia case, "the lower court's finding of a clear secular purpose ... casts some doubt on the question whether [the Virginia statute] establishes religion in violation of the First Amendment."

The state defended its law in a brief by arguing that legislators promoting the minute of silence were concerned about violence in schools, and that the lawmakers had simply wanted to guarantee that students could use the minute for prayer if they chose.

Jay A. Sekulow, the chief counsel of the American Center for Law and Justice, affiliated with religious broadcaster Pat Robertson, said last week that other states could feel confident in adopting Virginia's language.

"It will be no surprise if other states follow the lead of Virginia and adopt similar measures for their own school districts," he said.

But Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said the high court's action "is not a green light for state legislatures to start passing moment-of-silence laws to promote prayer in public schools."

Computer-Made Images

In other action, the Supreme Court heard arguments Oct. 30 in one of two major cases scheduled this term involving government efforts to protect children from the harms of pornography.

In Ashcroft v. Free Speech Coalition (No. 00-795), a federal law that makes it a crime to distribute or possess so-called virtual child pornography is at issue. In such pornography, images of children engaged in sexually explicit conduct are created without the participation of real children, such as by using computer software to put a child's head on an adult pornographic image.

The Free Speech Coalition, a trade association of producers and distributors of sexually explicit materials, challenged the 1996 law, arguing that the ban on virtual child pornography would chill protected speech in violation of the First Amendment.

The Bush administration argued last week that even though computer-generated pornographic images of children may not harm actual children in the production, such materials are used to lure real children into sexual exploitation, and that the materials help sustain an underground market for child pornography.

"These provisions protect real children from real abuse," Paul D. Clement, a deputy U.S. solicitor general, told the court.

Several justices expressed concern, however, that the language of the statute might cover Hollywood movies such as "Traffic" and "Lolita" that have implicitly depicted sexual intercourse by characters who are under 18. Even if the actors were 18 or older, the statute suggests it might be a crime to produce or possess such films, Justice Stephen G. Breyer said.

"We are not out there prosecuting people who pick up 'Traffic' at the Blockbuster [video-rental store]," Mr. Clement said.

Other Cases

On Nov. 28, the court will hear arguments in Ashcroft v. American Civil Liberties Union (No. 00-1293), which involves the latest effort by Congress to protect children from sexually explicit material on the Internet.

Also last week, the court heard arguments in a closely watched case involving affirmative action in federal contracting programs. In Adarand ConstructorsInc. v. Mineta (No. 00-730), a white-owned Colorado highway-construction contractor is challenging Department of Transportation programs that give preferences to minority-owned businesses.

An earlier phase of the case led to the landmark 1995 Supreme Court ruling that race-based classifications in federal programs require the highest level of constitutional scrutiny by courts. The Adarand case has been watched by educators for signals on how the court might eventually rule on racial preferences in education programs.

Vol. 21, Issue 10, Pages 36,38

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