In Sherman v. Koch, No. 09–1455 (7th Cir. 15 Oct 2010) (PDF), the Seventh Circuit reversed an injunction against enforcement of Illinois's "moment of silence" law, holding (2–1) that the statute in question was satisfactorily secular in purpose, because the statute on its face says it is.
In each public school classroom the teacher in charge shall observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day. This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day.
105 ILCS 20/1 (emphasis added). Curiously — or, perhaps, not so curiously — Judge Manion, for the majority, quotes the language of the statute, and infers adequate secular intent from its language... but not once does he cite the campaign speeches of its principal sponsor, an avowed evangelical who has repeatedly advocated prayer in schools.
The obvious problem here is the tension between what anyone with two brain cells to rub together knows — that many politicians, in order to pander to certain electoral segments or their own personal ideology, do want to impose and enforce public school prayer, and in particular an evangelical protestant vision thereof with full establishment in the schools — and Supreme Court precedent that essentially says that courts will bend over backward to assume that legislatures act with proper purposes, not in bad faith.
[G]overnment does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the "`objective observer, acquainted with the text, legislative history, and implementation of the statute,'" cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.
McCreary Cty., Ky. v. ACLU of Ky., 544 U.S. 844, 863 (2005) (internal citation omitted). The difficulty with Justice Souter's formulation and assumption is that it is factually wrong... but probably necessary as a political principle, given the balancing act that courts must play in our constitutional system when dealing with acts of the legislature.
Delving a little bit deeper into McCreary, though, demonstrates that Justice Souter's desire for an objective test is, itself, subjective... because he rejects significant data that would tend to reveal "disguised... religious intent." Slightly earlier in the opinion, he restricts the possible sources of the data that an objective observer may rely upon to discern the legislative intent to
the traditional external signs that show up in the "`text, legislative history, and implementation of the statute,'" or comparable official act. [A proper] enquiry looks to "plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute, . . . and the specific sequence of events leading to [its] passage."
Id., 544 U.S. at 862 (internal citations omitted). This is, of course, wrong as a matter of fact, although probably inevitable as a matter of doctrine: The most valuable, and least likely to be "disingenuous," statements of a legislator's purpose in proposing, advocating, and/or voting on a legislative act comes from that legislator's own campaign materials and behavior — not from official statements in later-edited journals. I'll pause to allow you to giggle at the irony of accepting campaign materials as a better source of truth... but not for very long.
All of that said, Judge Williams's dissent in Sherman has it correct on this particular statute, noting that the exception language in the second sentence — the denial that this is intended for prayer — only reinforces the inference that it is intended to impose public school prayer, under a horrible, ironic, entirely expected political variation on "the wicked flee when no man pursueth" (Proverbs 28:1, King James version).
Why mention prayer at all? If the Act truly is meant to achieve the purpose that its sponsors claim it is — mandating a quiet, meditative time at the beginning of each school day for students to settle down and shift into learning mode — why is it necessary to reference prayer? I recognize that the government’s stated secular purpose for a law is entitled to “some deference,” but it is also our duty to ensure that the proffered purpose is “genuine, not a sham, and not merely secondary to a religious objective.” And we are “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” because “[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.”
So while I recognize that we assess a legislature’s stated purpose with some deference, let’s call a spade a spade — statutes like these are about prayer in schools. In my view, the legislature’s decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the “hollow guise” of a mandated period of silence. While the secular purposes articulated by the state might not be “shams,” it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones. I share the concerns raised by a number of legislators who expressed their doubts about the true purpose behind amending the Act. As one House member stated during floor debate, “[t]he only reason I can see for requiring this silent moment is to encourage prayer in the public schools.” And as another representative stated, “[Y]es, this doesn’t mandate prayer, but let’s face it that’s what this is about .... [t]he only calls I received about this Bill were people who were rabbis and priests and reverends and people who are interested in having prayer in the public schools.” I do not believe that the Illinois legislature truly adopted this law with a secular purpose, and for that reason it violates the first prong of the Lemon test.
Sherman, slip op. at 41–42 (Williams, J., dissenting; internal citations omitted).
Now, admittedly, I'm quite a bit more vehement than most about keeping religion out of schools. It's not just from visiting (at various times) such warnings as Jerusalem, Belfast, and Magdeburg; it isn't even from being stationed in places like Oklahoma and Alabama as an atheist of non-majority ancestry. No, it's from personal experience and observation... and the obvious connection between religious doctrine and a lot of the major causes of bullying in schools. It is symbolically important to that Jewish/Muslim/atheist kid who gets beaten up for saying he doesn't celebrate Easter. It is symbolically important to that kid who is perceived as being anything less than red-bloodedly heterosexual (whether he/she is or not) who realizes — however dimly — that the whispers, disdain, and petty theft of possessions (even library books) have at least a partial ratification in the religious teachings being foisted upon fellow students. Then, too, I live in a portion of a purportedly Jackass state dominated by some of the most hateful elements of the Heffalump party who have not decamped for the Mad Tea Party — one in which the local paper proclaims with pride that this area is more Caucasian than the rest of the country and looks like it will remain so, and in which it's getting increasingly difficult to go vote somewhere other than a church. But then, Judge Williams is an African-American woman who grew up in Detroit, taught in public schools in Detroit, and is herself Catholic; that is, she knows more about being "different" in public schools, and what that means, and how legislatures play games with that, than do either of the two judges in the majority.
On matters of religion, I would invert the presumption that the courts make under the Lemon test: I would presume that any religious interplay with legislative acts is not of primarily secular purpose, but is instead of improper religious/sectarian purpose. But then, I actually know and have dealt with too damned many legislators, at state and federal level, to be anything less than thoroughly cynical. Some Illinois student will commit suicide — probably at a "downstate," semirural or rural high school — due to harassment that was intensified by the bullies' use of that mandatory minute of silence to hone their hatred. It's going to happen, but nobody here in East Central Redneckistan is going to make the connection. And that price is too high for Superintendent Koch's post hoc rationalization that the minute of silence is supposed to help students clear their minds for the day ahead, and thereby lead to better behavior in schools (see Sherman, slip op. at 6–7).
The problem is that the courts probably cannot adopt that change without throwing off the checks and balances; instead, they must rely upon the good faith of legislators in an era of rampant bad faith.