The U.S. Supreme Court, assuming it gets beyond a procedural threshold, will take up the New Jersey moment-of-silence case tomorrow. The justices will hear a lot of arguments that are (to my mind) irrelevant, immaterial and more than slightly disingenuous.
It will hear one side claim that a mandated moment of silence in public school classrooms amounts to an unconstitutional attempt to establish religion. It will hear the other side contend that the 5-year-old New Jersey statute has nothing to do with religion, that it is only a disciplinary device.
What it is very unlikely to hear is this simple truth: that it will do nothing to harm religion if it is struck down, and nothing to help religion if it is allowed to stand. As regards the propagation of the faith -- any faith -- the New Jersey statute is simply irrelevant.
There is a chance the constitutional arguments won't be heard at all. Alan Karcher, who brought the appeal from a lower court ruling that the statute is invalid, was speaker of the New Jersey Assembly when the law was passed. He is now only minority leader, and, according to the ACLU's Norman Cantor, no longer has standing to pursue his appeal.
But if it gets past that point, the court is expected to focus on whether the statute was an attempt to circumvent earlier Supreme Court rulings by allowing for school prayer.
The ACLU, which brought the original challenge, will say it was. The sponsor of the bill, Jimmy Zangari, admitted as much, although, unlike an Alabama statute the court ruled unconstitutional in 1985, the New Jersey law does not mention prayer. Nevertheless, a federal judge struck it down, a decision that was upheld by the state supreme court.
Karcher, who has spent some $15,000 to $20,000 of his own money in pursuing his appeal, will insist that prayer has nothing to do with it.
"What they're saying is that because Jimmy Zangari said that this is a way of allowing prayer, that motivation is the same as my motivation," Karcher says. "My motivation regarding this bill was totally untainted by any concept of school prayer. . . .
"If I thought for one moment that this was a school prayer bill, I would have voted against it." It is nothing more than a disciplinary tool, he says. "All we care about from a legislative perspective is that the kids keep their mouths shut."
The Lord, no doubt, will forgive you if you find Karcher's argument less than persuasive. It is true that only seven of New Jersey's 120 legislators were quoted in the federal court trial as saying they supported the bill on the ground that it would allow prayers in school. But it is reasonable to suppose that many of them were only trying to create a prayer opportunity that would pass court muster when they enacted the law providing for a minute of "quiet and private contemplation or introspection" to start the school day.
But so what? Assume that a majority of the 1982 legislature wanted to give schoolchildren the opportunity for silent prayer. Assume that they chose not to mention prayer in the legislation for fear that it would be ruled unconstitutional. Suppose that the moment-of-silence bill was pure subterfuge.
Where is the harm in that? The most persuasive argument against school prayer is that it coerces nonbelievers into participating in a Christian ritual. Spoken prayers could have that effect, and prayers organized and written by school officials could be said to amount to establishment of religion.
But nowhere in the Constitution do I find any mandate for hostility to religion. The mere opportunity for silent prayer does not pose any obvious threat to minority beliefs or, for that matter, to nonbelief. Indeed, it strikes me as a perfectly reasonable compromise.
Not that I think it would do religion any good. I don't imagine that schoolchildren are in any danger of catching religion by watching their classmates keep quiet for a minute. A moment of silence is, from the viewpoint of spreading a particular faith, totally worthless.
And if I am right, what are the opponents of moment-of-silence afraid of? Do they imagine that their own religious view would be compromised by a policy that says it's all right for children to pray if that's what they want to do? What is their perception of the threat posed by a few seconds of mandated quiet?
I don't expect the arguments that start tomorrow to provide any intelligible answers. The attitude of the opponents seems to be that if it looks like religion, let's get rid of i