Excerpts From the Decision

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Following are excerpts from Judge Dickinson R. Debevoise's ruling on the New Jersey "minute-of-silence" law. Double asterisks, [

  • ], denote omitted legal citations. Single asterisks, [
  • ], denote omitted footnotes.

The First Amendment of the United States Constitution provides that ''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ..." The Fourteenth Amendment makes the First Amendment binding on the states. [

  • ]

Bill 1064 requires that public-school principals and teachers "shall permit students to observe one minute of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day for quiet and private contemplation or introspection." "Contemplation" has been defined in Webster's as "meditation on spiritual things" and "introspection" has been defined as "looking into or within, as one's own mind" or "inspecting, as one's own thoughts or feelings." Very simply, the issue posed in this case is whether Bill 1064 constitutes a law respecting an establishment of religion or prohibiting the free exercise thereof. I conclude that Bill 1064 does constitute such a law. [

  • ]

The test, stated negatively, is that "[A] legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion." [

  • ] The statute under review does not pass muster under any of these criteria.

As found above, the purpose of Bill 1064 is religious, not secular. Intervenors urge that "the unambiguous language of New Jersey's moment-of-silence law evidences a legislative interest to promote a secular purpose in a manner that is constitutionally neutral to religion." [

  • ] Unless one examines the statute in a total vacuum, this conclusion is without rational basis. All the evidence points to the religious intent of this enactment--the period of more than a decade during which the New Jersey legislature sought to evade Engel and Abington Township in order to reintroduce a mandatory time for prayer in the public schools; the debate upon the Bill, which was in terms of public prayer and State involvement in religion; the time and manner in which the minute of silence was mandated, following the form and posture of school prayer which was outlawed in the early 1960's.

This obvious attempt to cross the forbidden line becomes all the more apparent in light of the pretextual nature of the secular purpose advanced in this case. True, the intervenors' witnesses testified that the Bill can serve as a useful boundary between nonschool activities and school work. However, only the utterly naive would conclude that the Bill's advocates were fighting passionately for establishment of such a boundary. It is abundantly clear that once the Governor's veto had been overridden and litigation commenced, Bill 1064 became a statute in search of a secular purpose.

... Turning to the second prong of the test of validity, I conclude that the Bill both advances and inhibits religion.

It advances the religion of some persons by mandating a period when all students and teachers must assume the traditional posture of prayer of some religious groups and during which those who pray in that manner can do so. This is exactly what happened during the time when Bill 1064 was in effect. In Sayreville, continuing past practice, students were instructed to sit, close their eyes, and observe silence. In Hillsborough Township, children were directed to sit and be quiet and still. In Roosevelt Junior High School, students were instructed to stand up, bow their heads, close their eyes, and observe silence.

Thus, the State has injected itself into religious matters by designating a time and place when children and teachers may pray if they do so in a particular manner and by mandating conduct by all other children and teachers so that the prayers may proceed uninterrupted in their presence.

While this form of legislation advances the religion of some, it inhibits the religion of others in at least two ways.

First, there are those whose religious practices include silent prayer and meditation but who, as an article of faith, believe that the State should have no part in religious matters. For them, mandated prayer is no longer prayer. It is their conviction that if the State requires any form of religious observance, the observance is drained of its substance, loses its power, and becomes but an empty shell. [

  • ] Thus, the State, seeking to further religion by mandating certain religious observances, in fact weakens religion by draining vitality from these observances.

Examples of this emasculating process can be seen in the cases. When a legislature routinely opens its sessions with prayer, when a court commences each day with "God save the United States and this honorable court," the courts have recognized that the effect is not to establish religion. Rather, the words which are spoken may represent a solemn and traditional ceremony serving a valuable civil function. They are no longer the words of a believer responding to his views of ultimate reality; they are, therefore, no longer prayer either in a religious or constitutional sense. Certain of those who oppose Bill 1064 on religious grounds seek to spare their mode of prayer from such a fate.

Second, by mandating a minute of silence which permits some persons to engage in prayer, Bill 1064 prevents other persons from engaging in their kind of prayer. Justice Brennan noted in his concurring opinion in Abington:

... our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today, the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. ... In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.

The religious diversity of which Justice Brennan spoke in 1963 is far more pronounced now. Thus, religious practices and the concepts of ultimate reality to which these practices point vary ever more widely. While once the prayers of most religious people could be carried on in an environment of silence, now that is no longer the case. The prayers of some persons require movement and sound. Bill 1064, therefore, mandates an environment which allows some to pray but which prevents others from engaging in their form of prayer.

Finally, there are those who profess no religion and to whom any form of prayer is offensive. Bill 1064 requires these persons to assume a posture suggestive of particular forms of prayer which are responsive to particular beliefs about ultimate reality. Understandably, those who do not share those beliefs do not wish to be required to maintain a pose which suggests that they do. Children holding these views, as illustrated in the present case, are forced either to endure an exercise which runs counter to their beliefs or to face public opprobrium or ridicule by asking to be excused each day.

There is nothing in the language or reasoning of the Supreme Court's opinion in Mueller v. Allen [

  • ] which affects the conclusion that the effect of Bill 1064 renders it unconstitutional. There the Court upheld a Minnesota statute which permitted taxpayers in computing their state income tax to deduct certain expenses incurred for the education of their children. This result was reached even though most such expenses involved payments on account of students attending private schools and even though it was established that 95 percent of such students attended sectarian schools. Applying the three-point test, the Court concluded the tax deduction satisfied the primary-effect inquiry. However, Mueller is of very limited utility in the present case. It is but the most recent in a long line of cases dealing with the question of the extent to which state legislation may, directly or indirectly, aid sectarian schools. The facts of those cases and the problems of church and state relations which they raise are quite different from facts and problems raised by the school-prayer cases.

Bill 1064 impermissibly advances the religion of some and inhibits the religion of others.

The third inquiry is whether Bill 1064 fosters an excessive government entanglement with religion. Implementation of the Bill would not involve the State in the kind of continued and pervasive monitoring of sectarian activities which was condemned in Lemon v. Kurtzman, supra. It would, however, tend to promote divisiveness among and between religious groups, another form of entanglement. [

  • ] A required minute of silence would put children and parents who believe in prayer in the public schools against children and parents who do not. The events in Princeton are illustrative of this consequence. There, the school administrators were threatened with disruptive behavior by students who believed the minute of silence constituted enforced prayer contrary to their own convictions. Elsewhere, the opposition did not take the form of threatened disruption, but children and parents were forced to decide whether the children should submit to an exercise which violated their beliefs or whether they should separate themselves from their peers.

With no secular purpose being served, this degree of entanglement causes Bill 1064 to fail the third prong of the test of validity.

Vol. 03, Issue 09

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