A Moment of Silence?

Almost all laws have loopholes, and law defined by the Supreme Court is no exception. Although it is widely believed that the court prohibited public school prayer in 1962, the court in fact merely forbade teachers to organize formal prayer sessions. The door was left open, at least a crack, to prayer that was purely voluntary.

Ever since, the states have been looking for ways to permit school prayer without appearing to demand it. Nineteen states have passed laws establishing a time for silent prayer or meditation in classrooms. Where challenged, however, these laws are usually struck down. The Supreme Court has remained above the fray, preferring to let the lower courts deal with the problems. But with Congress and the President agitating over a school-prayer amendment, the Justices may not be able to sit out much longer.

Most legal experts believe the high court will eventually approve a daily moment of silence. The precise rules could be difficult to establish, and no law will entirely insulate students from religious pressure. But by ruling on a major school-prayer case, the Justices might be able to head off the more drastic alternative: an amendment limiting the court's authority to interpret the Constitution. "With all the heat for a constitutional amendment, the court may say, 'Let's ease up and allow a moment of meditation,'" says Jesuit Father Robert Drinan, professor of law at Georgetown University and a former Democratic Congressman.

In the past several years, scholars have detected numerous cracks in the court's definition of the "wall" between church and state. To be sure, the Justices are quick to strike down laws that they see as advancing or favoring religion. Four years ago, in Stone vs. Graham, the court declared that Kentucky could not post the Ten Commandments in classrooms. But the court has upheld laws that are aimed at secular goals like promoting education and that advance religion only as a side effect. Thus, it permitted Minnesota to allow tax deductions for private school tuition, even though most private schools in the state are church-affiliated.

To some legal scholars, last week's decision on the Pawtucket crèche was a new departure by the court in interpreting the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."). Writing for the 5-4 majority, Chief Justice Warren Burger seemed to argue that the traditional guidelines—that a law must serve a secular purpose, neither advance nor inhibit religion, and not entangle the state in purely religious questions—were merely "useful," rather than mandatory. "A more flexible standard may be emerging," says U.S. Solicitor General Rex E. Lee. The real test, set forth by the Chief Justice, now seems to be simply whether a religious practice presents "a real danger of establishment of a state church." Some states will argue that it is difficult to see "real danger" in a moment of silence. Furthermore, they will claim that silent meditation serves a secular purpose by making the students more reflective.