Technicality Bars Ruling On Moments of Silence

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Washington--In a widely expected move, the U.S. Supreme Court decided unanimously last week that two New Jersey legislators lack legal standing to defend a state law that requires public schools to begin their day with a moment of silence for introspection or contemplation.

The Justices' Dec. 1 ruling left intact lower federal-court decisions that the 1982 law violated the First Amendment's prohibition against state establishment of religion because the chief motivation of its sponsors was to reinstate prayer in schools. But it did not clarify the status of similarly worded laws in 24 other states.

"It looks like we're back to square one" on the issue of the constitutionality of such laws, noted Gwendolyn Gregory, associate general counsel of the National School Boards Association.

It may take years before the controversy is resolved, she added, because there do not appear to be any suits at present challenging other moment-of-silence statutes.

In 1985, the Court struck down an Alabama moment-of-silence law that specifically listed prayer as one of the options for students.

However, a majority of the Justices in that decision indicated that measures like New Jersey's, which do not mention prayer, might withstand First Amendment scrutiny. Many educators and state officials had hoped that the Court would use the New Jersey case, Karcher v. May (Case No. 85-1551), to set a precedent on such laws.

Lawmakers Intervened

The Karcher case began in early 1983 when a group including students, parents, and a public-school teacher filed a suit challenging the law's constitutionality.

When the state and local officials named as defendants declined to defend the law, Alan J. Karcher, then Speaker of the Assembly, and Carmen A. Orechio, then President of the Senate, requested and obtained permission to intervene as defendants on behalf of the legislature.

A federal district court held the law unconstitutional in 1983, and that decision was upheld by a federal appeals court in December 1985.

Within a month of the appellate ruling, Mr. Karcher and Mr. Orechio, both Republicans, lost their leadership posts when Democrats gained a majority in the legislature.

The two former leaders filed an appeal with the High Court in March 1986 on behalf of the legislature. But that May, the new Democratic legislative leaders informed the Court that they wanted to drop the case.

The Justices, in agreeing last January to consider the substantive merits of the case, noted that they would postpone a ruling on the technical question of Mr. Karcher and Mr. Orechio's standing to pursue the suit until after oral arguments were heard. Their decision last week was devoted almost entirely to that procedural issue.

O'Connor's Opinion

"Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey legislature, but since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature," wrote Associate Justice Sandra Day O'Connor for the Court.

"The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office," Justice8O'Connor noted, adding that "the current presiding officers have informed us that the New Jersey legislature is not an appellant in this case."

The Justices also held that the two former legislative leaders had no standing to pursue the case in their "personal or professional capacities," or as representatives of the 200th New Jersey legislature, the session in which the law was passed.

Associate Justice Byron H. White wrote a separate opinion concurring with the majority. He noted, however, that the Court "could [have] save[d] this case and avoid[ed] the time and attention we have given it'' if it had permitted a group of parents and teachers to take up the law's defense. The Justices denied that group's request to intervene in the suit last June.

The Court's decision not to rule on the merits of the Karcher case marked the second time in as many years that a question of standing prevented it from resolving a major dispute involving the public schools' role in accommodating the religious beliefs of students.

In March 1986, the Justices held that they lacked jurisdiction to rule on the merits of Bender v. Williamsport Area School District, in which a federal appeals court upheld a Pennsylvania school board's decision to deny high-school students permission to hold voluntary prayer meetings on school grounds.

The High Court declined to review that decision because the only party defending the ban was a former board member. As in the Karcher case, the Justices held that they could not rule on the matter because the former member did not have "a sufficient stake in the outcome of the litigation" to invoke the Court's jurisdiction.

Vol. 07, Issue 14

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