Is a moment of silence law constitutional?
It depends. Moment of silence laws are constitutional if government officials had secular reasons for drafting them, rather than simply attempting to bring prayer back into public schools. In Wallace v. Jaffree (1985), the U.S. Supreme Court invalidated an Alabama moment of silence law that the sponsor of the measure bluntly stated was designed to bring prayer back into the public schools. Alabama legislators had amended an existing moment of silence law by adding the words "or voluntary prayer." The sponsor admitted that restoring prayer to schools was his only motivation. Under those facts, a majority of the Court found a clear religious purpose in violation of the Lemon test.
However, lower courts have upheld moment of silence laws in which legislators advanced for secular purposes. In Croft v. Perry (5th Cir. 2009), the 5th U.S. Circuit Court of Appeals upheld a Texas moment of silence law. The appeals court accepted the following secular purposes for the law: "fostering patriotism, providing a period for thoughtful contemplation, and protecting religious freedom." Other federal appeals court have upheld moment of silence laws in Georgia and Virginia in recent years.
In the case out of Georgia, the Georgia legislature referred to its measure as the "Moment of Quiet Reflection" law. The 11th U.S. Circuit Court of Appeals in Bown v. Gwinnett County Schools (11th Cir. 1997) reasoned that the valid secular purpose of this law was to give students the opportunity to reflect on the coming day.
What opinions were rendered by the U.S. Supreme Court concerning Wallace v. Jaffree.
The justices made the following statements concerning the moment of silence issue in Wallace v. Jaffree (1985).
Justice John Paul Stevens (majority): "The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the school day.... The addition of 'or voluntary prayer' indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion."
Justice Lewis Powell (concurring): "The record before us, however, makes clear that Alabama's purpose was solely religious in character. Senator Donald Holmes, the sponsor of the bill that became Alabama Code 16-1-20.1 (Supp. 1984), freely acknowledged that the purpose of this statute was 'to return voluntary prayer' to the public schools."
Justice Sandra Day O'Connor (concurring): "A state-sponsored moment of silence in the public schools is different from state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who participates in a moment of silence need not compromise his or her beliefs. During a moment of silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of silence statute does not stand or fall under the Establishment Clause according to how the Court regards vocal prayer or Bible reading. Scholars and at least one Member of this Court have recognized the distinction and suggested that a moment of silence in public schools would be constitutional."
Chief Justice Warren Burger (dissenting): "Some who trouble to read the opinions in these cases will find it ironic—perhaps even bizarre—that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection."
Justice Byron White (dissenting): "Of course, I have been out of step with many of the Court's decisions dealing with this subject matter, and it is thus not surprising that I would support a basic reconsideration of our precedents."
Justice William Rehnquist (dissenting): "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years."