Last fall we reported on the case of Brian Bown, a Georgia teacher dismissed from South Gwinnett High School last September after refusing to lead his class in a moment of silence. On July 31, 1995, Judge Frank Mays Hull of the Federal District Court (11th Federal Judicial Circuit) upheld Georgia's law requiring a minute of silent meditation at the start of each school day.
During a February 1995 hearing on the case, Steve Leibel, attorney for Bown, argued that the moment of silence was intended to promote religion in violation of the Constitution. At that hearing, Leibel asserted that the Georgia legislators' remarks during the 1994 debate over the proposed legislation showed that the legislation was intended to promote religion. Leibel intends to appeal Judge Hull's decision.
In Wallace v. Jaffree, a 1985 moment of silence case out of Alabama, the Supreme Court struck down that moment of silence law because Alabama failed to present evidence of any secular purpose for the legislation. In order to withstand constitutional scrutiny, Establishment Clause jurisprudence requires that statutory schemes have at least one legitimate secular purpose. The legislative record supported Jaffree's assertion that the purpose of the legislation was "to return voluntary prayer in our public schools". Leibel will likely rely upon Wallace v. Jaffree in pursuing his appeal to the U.S. Court of Appeals for the 11th Circuit.
Within the First Amendment there are often tensions between its clauses. Does the right of free speech override the state's compelling interest in maintaining separation of church and state? In a controversial June 29, 1995, 5-4 decision, the Court held in Rosenberger v. University of Virginia that a state university's refusal to fund the printing of students' religious newspaper (1) violated the First Amendment's free speech guarantee; and (2) was not excused by the state's need to comply with the First Amendment's establishment of religion clause.
Although the University of Virginia would not permit religious organizations to have the status of "Contracted Independent Organization," the University permitted a student organization, which published a newspaper, whose stated mission was "to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means," to have the status of "Contracted Independent Organization." The organization requested the student activities fund to make payments to an off-campus printer for the costs of printing its newspaper. The university's student council denied the request on the ground that the newspaper was a religious activity. The denial was sustained by the university's student activities committee. The organization and some of its members filed suit in the United States District Court for the Western District of Virginia. The suit alleged that the university's denial violated the organization's free speech and press and free exercise of religion guarantees of the Federal Constitution's First Amendment. Both the District Court and the United States Court of Appeals for the Fourth Circuit found for the university. The Supreme Court reversed.
The majority opinion by Justice Kennedy, joined by Chief Justice Rehnquist and Justices O'Connor, Scalia and Thomas, held that (1) the university's denial of payment to the printer constituted viewpoint discrimination, which denied the organization its First Amendment right of free speech and that (2) the university's free speech violation was not excused by the necessity of complying with the establishment of religion clause.
One vote shy of a majority were the four dissenters, with an opinion penned by Justice Souter and joined by Justices Stevens, Ginsburg and Breyer. They expressed the view that (1) the Supreme Court was, for the first time, approving direct religious activities by an arm of the state; (2) direct funding of the newspaper would support religious evangelism in violation of the establishment of religion clause; and (3) there was no viewpoint discrimination in the application of the university's guidelines to deny funding to the newspaper.
Justice Souter concluded the opinion with an admonition: "Since I cannot see the future I cannot tell whether today's decision portends much more than making a shambles our of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger's warning in Lemon v. Kurtzman (403 US 602, 624, 29 L Ed 2d 745, 91 S Ct 2105 (1971): 'in constitutional adjudication some steps, which when taken were thought to approach 'the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop.'"