When Silence Speaks Volumes: Illinois Law Promotes Prayer, And The Court Knows It

When the “moment of silence” bill first came up for vote in the Illinois legislature years ago, some House members sang a song on the floor to the tune of Simon and Garfunkel’s “Sounds of Silence.” It went:

Hello, school prayer, our old friend

It’s time to vote on you again

In our school house without warning

You seek a moment in the morning.

The words made very clear these legislators’ intent in proposing the measure: to bring government-sponsored prayer back into the public schools.

Yet last week, the 7th U.S. Circuit Court of Appeals seemed to miss this glaringly obvious fact. In a 2-1 decision in Sherman v. Koch, the court held the legislature had a secular purpose in passing the Illinois Silent Reflection and Student Prayer Act and upheld the law as constitutional.

The Act requires every public school classroom to open with “a brief period of silence,” which serves as an opportunity for “silent prayer or for silent reflection on the anticipated activities of the day.”

The law was enacted in October 2008, after the Illinois legislature overrode a veto by the governor, who cited concerns over the separation of church and state.

Rob Sherman, a parent of a high school student in Arlington Heights, Ill. filed a lawsuit, and a federal district court struck down the Act for being unconstitutionally vague.

The appeals court last week overturned that decision. The majority opinion, written by Reagan-appointee Judge Daniel Manion, held that the law was not vague and that the legislature acted constitutionally.

“The Illinois legislature had a secular purpose in passing Section 1, namely mandating a period of silence to calm school children before the start of their day,” wrote Manion. “There is no evidence that the secular purpose is a sham and that Illinois’s true purpose was to promote prayer. And there is nothing impermissible about clarifying that students may pray during that time period. Section 1 also does not advance or inhibit religion (or specific religions that practice momentary silent prayer), but rather mandates only a period of silence. There is also no state entanglement with religion.”

The court couldn’t be more wrong, and Judge Ann Clair Williams spelled out why in her dissent.

“Let's call a spade a spade – statutes like these are about prayer in schools,” she wrote. "The Act makes what I believe to be an unnecessary reference to prayer, signaling a predominantly religious purpose to the statute. And by enumerating prayer as one of the only two specific permissible activities, the Act conveys a message that Illinois students should engage in prayer during the prescribed period as opposed to a host of other silent options."

Not surprisingly, Religious Right groups like the Alliance Defense Fund, which filed a friend-of-the-court brief in the case, are hailing the decision.

“Just because a person is ‘offended’ that someone else might use a period of silence to pray doesn’t mean that the Constitution has been violated,” said ADF attorney Andy Norman. “The court rightly determined that voluntary periods of silence cannot be interpreted as an establishment of religion. Such an accusation not only demonstrates hostility to our nation’s history and heritage, but also a profound misunderstanding of the First Amendment.”

We think it’s the 7th Circuit and groups like the ADF that misunderstand. Students don’t need the Illinois General Assembly’s permission to pray during the school day. Even without this law, students can pray on their own, so long as it does not disrupt others.

These types of laws are part of a bigger agenda and it’s a shame the majority on this court failed to see, despite concrete evidence, that there really is no other purpose for a “moment of silence” law except a religious one.