George Will's recent attack on the American Civil Liberties Union for challenging New Jersey's so-called "moment of silence" law--"How About a Moment of Silence From the ACLU?"--was as ill-informed about the state's attempts to impose religious exercises on its public school children as it was about the purpose of the "establishment" clause of the First Amendment, about which he wrote again Sunday in "That 'Wall' Isn't Sacred."
The government cannot be in the business of religion, while at the same time permitting all people to freely exercise their own religious choices.
The New Jersey "minute of silence" statute violates the First Amendment because the legislature's purpose was to establish prayer in the classroom. Surely, if the statute had explicitly provided for a "minute of prayer," even George Will would recognize that it violated the First Amendment.
Changing "prayer" to "silence" to camouflage the religious purpose only makes the statute more clever, but not any more constitutional. It is the government's involvement in religion and prayer that is objectionable, not the religion or prayer itself. In fact, every person--student and teacher, in school or out--has an absolute right to pray silently whenever it suits him or her.
For example, teachers already have the power, and exercise it frequently, to have a "quiet time" when students can study, reflect, daydream or, if so inclined, pray. Such truly voluntary prayer without government compulsion is part of our great heritage of religious liberty; a state statute --such as the "minute of silence" law-- passed for the purpose of promoting sectarian religious interests demeans the sanctity of religion and threatens the integrity of our government.
Throughout the legislative fight over the measure, the ACLU emphasized that its concern was based not on opposition to silence or contemplation or introspection but rather to a process by which legislators openly proclaimed their intention that a period of time be set aside at the opening of each school day for prayer.
As the chief sponsor of the legislation stated: "We start all the assembly sessions with a prayer. . . . If it's good for me, it's got to be good for my children . . . and I'd like to pass that on." The president of the Senate welcomed the moment of silence because it would mean "bringing prayer back into the schools through the front door."
Commenting on the careful wording utilized to avoid constitutional challenge, one assemblyman who supported the law noted that, regardless of "whether we want to hide behind" the use of the term "contemplation" in the bill, "it's a prayer." Thus, the ACLU urged the legislature not to mandate a period of time for prayer but rather to allow teachers and other educators to determine when to utilize silence and contemplation to serve educational ends. That, after all, is the job of our public school system.
In its opposition to the "moment of silence" law, the ACLU of New Jersey was joined, among others, by the New Jersey Council of Churches, the New Jersey Education Association and the New Jersey School Boards Association. Sharing the ACLU's analysis of unconstitutional legislative purpose were Republican Gov. Thomas H. Kean, who vetoed the bill, and the state's attorney general who, after a legislative override, has refused to defend the measure in court because he believes it to be unconstitutional. Previous sessions of the New Jersey legislature had passed similar or identical measures each of which was vetoed by previous governors, both Democratic and Republican.
When the "silence" law was put into effect in December (before its use was temporarily enjoined), we witnessed the fruits of the process to which we had objected: children standing at attention, their heads dutifully bowed in "reverent" silence, a scene reminiscent of many legislators as prayers are read to open legislative sessions. There were even examples of students being told to pray during the "moment of silence."
James Madison and Thomas Jefferson, principal authors of the establishment and religious liberty clauses of the First Amendment, intended to "erect a wall of separation between church and state." This has consistently been interpreted as meaning that the state should be neutral with respect to religion, in the words of the Burger Court, "neither advancing nor inhibiting religion." The problem with New Jersey's silent prayer law is that it not only has the intention and net effect of violating the "establishment" doctrine, it inhibits the very thing it purports to advance.