In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1455
D AWN S. S HERMAN, a minor, through
R OBERT I. S HERMAN, her father and
next friend, on behalf of herself and
all others similarly situated,
Plaintiff-Appellee,
v.
D R. C HRISTOPHER K OCH, State
Superintendent of Education,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 6048—Robert W. Gettleman, Judge.
A RGUED F EBRUARY 10, 2010—D ECIDED O CTOBER 15, 2010
Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. In 2007, Illinois amended
Section 1 of the Silent Reflection and Student Prayer Act
making mandatory a period of silence in public schools;
2 No. 09-1455
prior to this amendment, teachers had the option of
observing a period of silence at the beginning of the
school day. After the Illinois legislature amended
Section 1, Dawn Sherman, through her father, Robert I.
Sherman, sued Christopher Koch in his official capacity
as Superintendent of the Illinois State Board of Educa-
tion (“Koch”), and Township High School District 214
(“District 214”), alleging that Section 1 was facially
unconstitutional. The district court certified a plaintiff class
of all public school students in Illinois, with Sherman as
the class representative (“Sherman”), and a defendant class
of all public school districts in Illinois, with District
214 as the class representative. The parties filed cross-
motions for summary judgment. The district court
granted Sherman summary judgment, concluding that
Section 1 violated the first and second prongs of the
Lemon test and thus the Establishment Clause. Specif-
ically, the district court held that Section 1 lacked a
secular purpose and that it had the primary effect of
advancing or inhibiting religion by favoring religions
which engage in silent prayer (over religions which do
not). The district court further held that Section 1 was
unconstitutionally vague in violation of the Due Process
Clause of the Constitution because it did not specify
the length of the period of silence, how the period of
silence would be implemented, or the penalty for vio-
lating the statute. The district court then permanently
enjoined the defendants from implementing or enforcing
Section 1. Koch appeals.
On appeal, Sherman relies extensively on Wallace v.
Jaffree, 472 U.S. 38, 56 (1985), wherein the Supreme
No. 09-1455 3
Court held that Alabama’s moment of silence law lacked
any secular purpose and was thus unconstitutional.
She likewise points to the Third Circuit decision in May
v. Cooperman, 780 F.2d 240, 242 (3d Cir. 1985), which
held that the New Jersey moment of silence law violated
the Establishment Clause. Koch responds that unlike
Wallace and May, where there was no secular purpose
justifying the moment of silence laws at issue, Illinois’s
period of silence law provided the secular purpose of
having a uniform moment of quiet reflection to calm
school children before they start the day. Thus, Koch
claims, Section 1 passes constitutional muster, as do the
Georgia, Virginia, and Texas moment of silence laws
upheld by the Eleventh, Fourth and Fifth Circuits in
Bown v. Gwinnett County School District, 112 F.3d 1464
(11th Cir. 1997), Brown v. Gilmore, 258 F.3d 265 (4th Cir.
2001), and Croft v. Governor of Texas, 562 F.3d 735 (5th Cir.
2009). We agree. Like the statutes at issue in Bown,
Brown, and Croft, Section 1 serves a secular purpose
and does not have the principal or primary effect of
promoting religion. Section 1 also is not unconstitu-
tionally vague. Accordingly, we reverse and remand.
I.
Since 1969, Illinois has had a statute authorizing a
period of silence in public school classrooms. The
original statute provided:
An Act to authorize the observance of a brief period
of silence in public school classrooms at the opening
of each school day.
4 No. 09-1455
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. In each public school classroom the
teacher in charge may 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.
Ill. Rev. Stat. 1969, ch. 122, par. 771.
In 1990, as part of an act that assigned short titles
to hundreds of statutes, the law was given the short
title, “the Silent Reflection Act.” Pub. Act 86-1324, § 933,
eff. Sept. 6, 1990. Then, in 2002, the Illinois legisla-
ture added a new section to the Act, Section 5, which
set forth a student’s right to free exercise of religion
(and specifically the right to engage in non-disruptive
prayer) and his right to be free from pressure
from the State to engage in or refrain from religious
observance. 105 ILCS 20/5. 1 Simultaneously, the Illinois
1
In full, Section 5 provides: “In order that the right of every
student to the free exercise of religion is guaranteed within
the public schools and that each student has the freedom to not
be subject to pressure from the State either to engage in or to
refrain from religious observation on public school grounds,
students in the public schools may voluntarily engage in
individually initiated, non-disruptive prayer that, consistent
(continued...)
No. 09-1455 5
legislature amended the short title of the act to “the
Silent Reflection and Student Prayer Act.” Pub. Act 92-
832, eff. Jan. 1, 2003.
The Silent Reflection and Student Prayer Act remained
unchanged until early 2007 when the Illinois legislature
passed a bill amending Section 1, making the period of
silence mandatory by changing the phrase “may observe”
to “shall observe.” After this amendment, Section 1 read:
Period of silence. § 1. 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 exer-
cise 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).
Then-Governor Rod Blagojevich vetoed the amend-
ment, but the Illinois legislature overrode the veto and
the amendment became effective on October 11, 2007.
On October 26, 2007, Dawn Sherman, through her
father, sued her high school, District 214, under 42 U.S.C.
§ 1983, seeking declaratory and injunctive relief that
1
(...continued)
with the Free Exercise and Establishment Clauses of the
United States and Illinois Constitutions, is not sponsored,
promoted, or endorsed in any manner by the school or any
school employee.” 105 ILCS 20/5.
6 No. 09-1455
Section 1 is facially invalid under the First Amendment.
Less than one week later, Sherman filed an amended
class action complaint for declaratory and injunctive
relief under 42 U.S.C. § 1983 against District 214 and Koch,
alleging that Section 1 is facially invalid under the
First Amendment because it effects an establishment of
religion and under the Fourteenth Amendment because
it is unconstitutionally vague.
In November 2007, the district court preliminarily
enjoined the defendants from implementing or en-
forcing Section 1. Sherman then moved for certification
of a bilateral class. The district court certified a plaintiff
class of all students in public schools in the State of
Illinois, represented by Sherman, and a defendant class
of all public school districts in the State of Illinois, repre-
sented by District 214. The district court then ex-
tended the preliminary injunction to all defendant class
members.
Sherman, supported by amicus curiae the American
Civil Liberties Union (“ACLU”), then moved for sum-
mary judgment, arguing that Section 1 violates the Estab-
lishment Clause because it lacks a secular purpose, en-
dorses prayer and discriminates against religions
whose beliefs do not embrace the concept of momentary,
silent prayer. Sherman also claimed that Section 1 is
unconstitutionally vague because it does not specify
how the period of silence will be implemented or the
penalties for not complying with the statute.
Koch, supported by amicus curiae Alliance Defense
Fund (“ADF”), also filed a motion for summary judg-
No. 09-1455 7
ment. He argued that Section 1 serves the secular pur-
pose of providing a uniform moment of quiet reflection
to calm school children before they start the day. And
while acknowledging the law could be misapplied to
endorse prayer, Koch asserted that the statute is neutral
on its face and offers secular benefits to all students.
Koch further argued that the law is not unconstitu-
tionally vague in all its applications, as many school
districts had successfully implemented the period of
silence.
The district court denied Koch’s motion for summary
judgment and granted Sherman’s motion, concluding
that Section 1 violates the Establishment Clause and is
unconstitutionally vague in violation of the Due Process
Clause of the Fourteenth Amendment. Specifically, the
district court concluded that Section 1 violates the
first prong of the Lemon test, see Lemon v. Kurtzman, 403 U.S.
602 (1971), because it had no clear secular purpose and the
stated purpose was a sham. The district court also con-
cluded that Section 1 violates the second prong of Lemon
because its primary effect is to advance or inhibit reli-
gion. The district court further held that Section 1 was
unconstitutionally vague because it “provides no direc-
tion as to how the ‘period’ of silence should be imple-
mented, how long the period should last, and whether
pupils would be permitted to pray in a manner that
was either audible or required movement.” Sherman v.
Township High School Dist. 214, 594 F.Supp.2d 981, 990
(N.D. Ill. 2009). The district court then permanently
enjoined the defendants from implementing or enforcing
8 No. 09-1455
Section 1. Koch appeals.2
II.
A. Standing
Initially we consider Sherman’s standing, because if a
class representative lacks standing at the time the com-
plaint is filed, the entire class action should be dis-
missed. Walters v. Edgar, 163 F.3d 430, 437 (7th Cir. 1998)
(“[T]he present suit was properly dismissed for want of
standing, dooming the class action because [the named
plaintiffs] lacked standing when they filed the suit . . . .”).
To have standing, “a plaintiff must allege (1) that he
has suffered an injury in fact (2) that is fairly traceable to
the action of the defendant and (3) that will likely be
redressed with a favorable decision.” Books v. Elkhart
County, Ind., 401 F.3d 857, 861 (7th Cir. 2005) (internal
quotation and citation omitted).
Amicus ADF argues that Sherman lacks standing
because she has not suffered an injury. As ADF sees it,
Sherman lacks a cognizable injury because she has not
2
On appeal, the ACLU and ADF again filed amicus curiae briefs.
Additionally, Wallbuilders, Inc., and the attorneys general of
seventeen states (Alabama, Florida, Idaho, Indiana, Louisiana,
Mississippi, Nevada, North Carolina, North Dakota, Ohio,
Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Virginia,
and Washington) filed amicus curiae briefs in support of Koch.
We thank these parties for their helpful contributions to the
court.
No. 09-1455 9
suffered direct and unwelcome exposure to religious
exercises, practices, or words—rather, Section 1 only
“subjects Plaintiff to brief silence.” The Fifth Circuit
rejected this same argument in Croft, 562 F.3d 735. See
infra at 25-26. There, the plaintiff had challenged Texas’s
moment of silence law and ADF, who also appeared
as an amicus in that case, argued that Croft lacked
standing because a moment of silence did not injure
the plaintiff. Croft, 562 F.3d at 745. The Fifth Circuit
rejected that argument, noting that “that is a question
to be determined on the merits, which must come after
determining whether we have jurisdiction to hear the
case.” Id. at 746. The court further held that the Crofts
had standing because “their children are enrolled in
Texas public schools and are required to observe the
moment of silence daily.” Id.
Similarly, in this case, Sherman is a student at a
public school in Illinois and under Section 1 is subject to
a mandatory period of silence. Sherman alleges that
Section 1’s period of silence exposes her to a religious
practice in violation of the Establishment Clause.
Whether that is true is a question of the merits of her
claim, not of her standing to bring the claim; her status
as a student establishes her standing to sue. Id.
B. Establishment Clause
Turning, then, to the merits: Sherman first argues
that Section 1 violates the First Amendment. The First
Amendment provides, in relevant part, that “Congress
10 No. 09-1455
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; . . . .” U.S.
Const. amend. I. The Supreme Court has held that the
Fourteenth Amendment imposes the substantive limita-
tions of the Establishment Clause on the legislative
power of the States and their political subdivisions. Santa
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). The
Supreme Court has further held in Lemon v. Kurtzman,
403 U.S. 602 (1971), that to be constitutional: “First, the
statute must have a secular legislative purpose; second,
its principal or primary effect must be one that neither
advances nor inhibits religion; finally, the statute must
not foster an excessive government entanglement with
religion.” Id. at 612-13 (internal quotations and cita-
tions omitted). We consider each prong of the Lemon test
in turn.
1. Secular Purpose
Under Lemon, the first question is whether the law at
issue has a secular legislative purpose. Lemon, 403 U.S. at
613. A statute may be motivated in part by a religious
purpose and nonetheless satisfy the first criterion of
Lemon. Wallace v. Jaffree, 472 U.S. 38, 56 (1985). Thus, “a
secular purpose need not be the exclusive one; it [is]
sufficient if the government had ‘a secular purpose.’ ”
Bridenbaugh v. O’Bannon, 185 F.3d 796, 800 (7th Cir. 1999)
(emphasis added). As we explained in Metzl v. Leininger,
57 F.3d 618, 620 (7th Cir. 1995), “[a] law that promotes
religion may nevertheless be upheld . . . because of the
secular purposes that law also serves.” Finally, we note
No. 09-1455 11
that the Supreme Court has recognized that the pur-
pose prong of Lemon has rarely been determinative
“because [the] government does not generally act uncon-
stitutionally, with the predominant purpose of advancing
religion.” McCreary County, Ky. v. American Civil Liberties
Union of Ky., 545 U.S. 844, 859, 863 (2005). And in those
rare cases where the Court has invalidated a statute
because of an illegitimate purpose, “openly available
data supported a commonsense conclusion that a
religious objective permeated the government’s action.”
Id. at 863.
In this case, Koch asserts that Section 1 serves the
secular purpose of providing a moment of silence at the
beginning of each school day to calm students and ready
them for the school day. Sherman concedes that quieting
pupils down at the beginning of the school day serves
a valid pedagogical purpose. However, Sherman con-
tends that Illinois’s stated secular purpose is not sin-
cere—that it is a sham—and that the real purpose is
to promote prayer.
This court recognized in Indiana Civil Liberties Union
v. O’Bannon, 259 F.3d 766, 771 (7th Cir. 2001), that we
generally defer to the government’s articulation of a
secular purpose unless it is a sham. In assessing whether
a law has a secular purpose or the purpose is a sham,
we look to the “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.” McCreary, 545 U.S. at 862 (internal quota-
tion marks omitted).
12 No. 09-1455
a. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)
Sherman argues that the language of Section 1 (i.e.,
that the period of silence “shall be an opportunity for
silent prayer or for silent reflection on the anticipated
activities of the day”), 105 ILCS 20/1, coupled with
Section 1’s legislative history and historical context,
demonstrates that the asserted secular purpose is a
sham. In support of her position, Sherman relies heavily
on the Supreme Court’s opinion in Wallace, 472 U.S. 38,
in which the Court considered the constitutionality of
Alabama’s moment of silence law, which provided: “At
the commencement of the first class of each day in all
grades in all public schools the teacher in charge of the
room in which each class is held may announce that a
period of silence not to exceed one minute in duration
shall be observed for meditation or voluntary prayer,
and during any such period no other activities shall be
engaged in.” Id. at 40 n.2 (quoting Alabama Code § 16-1-
20.1). The Court held that Alabama’s moment of silence
law lacked any secular purpose. Id. at 59-60. However,
while striking the Alabama statute in Wallace, the
Supreme Court recognized that “[t]he 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.” See Wallace,
472 U.S. at 59.
This case is significantly different than Wallace. In
Wallace there was no evidence of a secular purpose;
rather, the asserted legislative purpose was to return
No. 09-1455 13
prayer to public schools. The sponsor of the moment of
silence law in that case “inserted into the legislative
record—apparently without dissent—a statement in-
dicating that the legislation was an ‘effort to return volun-
tary prayer’ to the public schools.” Id. at 56-57. The
bill’s sponsor later confirmed this purpose in court pro-
ceedings, testifying that he was the “prime sponsor” of
the bill and that the bill was an “effort to return
voluntary prayer to our public schools . . . it is a begin-
ning and a step in the right direction.” Id. at 43. The
bill’s sponsor also testified that apart from the purpose
to return voluntary prayer to public school, he had
“no other purpose in mind.” Id.
Wallace also involved a suspect historical context. The
statute challenged in Wallace was passed in 1981, even
though the state legislature had just recently (1978) autho-
rized a one-minute period of silence in all public
schools “for meditation.” Id. at 40. Then in 1982, the
state legislature enacted another provision authorizing
teachers to lead “willing students” in a prescribed prayer
to “Almighty God . . . the Creator and Supreme Judge
of the world.” Id. That historical context confirmed the
sponsor’s testimony that the moment of silence law
was just “a beginning and a step in the right direction” to
the “effort to return voluntary prayer to our public
schools.” Id. at 43.
Conversely in this case, the State has offered a
secular purpose for Section 1—establishing a period of
silence for all school children in Illinois to calm the stu-
dents and prepare them for a day of learning. The
14 No. 09-1455
plain language of the statute supports this secular
purpose by establishing a mandatory moment of silence:
“In each public school classroom the teacher in charge
shall observe a brief period of silence with the participa-
tion of all the pupils therein assembled at the opening of
every school day.” 105 ILCS 20/1. And emphatically
Section 1 declares: “This period shall not be conducted as
a religious exercise . . . .” Id. Thus, the plain language
disavows any religious purpose in Section 1.
Rather than exposing a sham, the legislative history
confirms the secular purpose of Section 1. Specifically,
the Senate sponsor, Senator Lightford, explained that,
under the 1969 version of the law some teachers were
observing a period of silence, but others—often in the
same school—were not. S. Proceedings, 95th Ill. Gen.
Assem., March 21, 2007, at 88. Lightford explained that
her intent in amending the law was to “create uniformity
across the State in all of our schools,” so that all public
school students would be given the same opportunity
for “meditation, moment of silence, reflection.” Id. She
further emphasized that the moment “should not be
conducted as a religious exercise,” but rather was “a
neutral act which affords students the opportunity to
reflect on whatever they wish, whether religious or not.”
Id. at 86. During debate on the bill, other members of
the House and Senate expressed support for a man-
datory moment of silence to quiet students and to
“instill a little meditative exercise” at the beginning of
the day. Id. at 87, 88 (statements of Sens. Cronin & Sieben);
see also id. at 89 (statements of Sen. Meeks); H.R. Pro-
ceedings, 95th Ill. Gen. Assem., May 31, 2007, at 63-64.
No. 09-1455 15
And throughout the debates no one in either the House
or Senate spoke of using the period of silence as a mecha-
nism to return prayer to the schools.
After the Governor vetoed the bill, the Senate and
House debated the propriety of overriding the veto.
During these debates, those supporting the bill again
spoke of the need for a mandatory moment of silence
to calm students at the beginning of the school day.
S. Proceedings, 95th Ill. Gen. Assem., Oct. 3, 2007, at 11;
H.R. Proceedings, 95th Ill. Gen. Assem., Oct. 11, 2007, at
95, 99. The Senate sponsor also reiterated that the period
of silence was not to be conducted as a religious exer-
cise. S. Proceedings, 95th Ill. Gen. Assem., Oct. 3, 2007,
at 11. And as with the debate on the original passage of
the bill, there were no statements indicating a legisla-
tive intent to return prayer to school.
Our dissenting colleague claims any secular purpose
is secondary to religious motives, citing statements
made during the House debate by opponents to the bill,
including comments made by one representative who,
speaking in support of sustaining Governor Blagojevich’s
veto, focused on the religious motivation of the constitu-
ents who called his office in support of Section 1.
(Dissent at 42). The dissent also asserts there are “troubling
statements in the record indicating religious motiva-
tions on the part of some of the Act’s supporters,” pointing
to a press report and the singing of a parody. (Dissent at
42-43). However, “what is relevant is the legislative pur-
pose of the statute, not the possibly religious motives of
the legislators who enacted the law.” Board of Education of
16 No. 09-1455
Westside Community Schools v. Mergens, 496 U.S. 226, 249
(1990) (plurality opinion). Even less relevant are the
motives of opponents to a bill and the varied motives of
constituent. Moreover, even assuming motivation was
relevant and that a press report could be considered
legislative history, Senator Lightford’s statement to a
newspaper reporter (that the General Assembly opens
every day with a prayer and the Pledge of Allegiance,
and that “I don’t get a choice” and “I don’t see why
students should have a choice”) has no bearing on
Section 1. The Illinois legislature may open its sessions
with a prayer by the assigned clergy for that day. Some
legislators may prefer silence. But Section 1 does not
likewise require schools to start the day with a prayer. In
fact, Section 1 expressly states that the period of silence
“shall not be conducted as a religious exercise.” 105 ILCS
20/1. Therefore, it is not reasonable to read the press
quote as an expression by Senator Lightford of a desire
to institute school prayer or as undermining the stated
secular purpose of Section 1. See Mueller v. Allen, 463
U.S. 388, 394-95 (1983) (stating that the Court is reluctant
“to attribute unconstitutional motives to the states, par-
ticularly when a plausible secular purpose for the
state’s program may be discerned from the face of the
statute”). Rather, the proposed amendment sought
solely to change the “may” to a “shall” in Section 1. Thus
the only mandate is for silence. Regarding the Simon
and Garfunkel take-off, neither Sherman nor the
ACLU relied on the singing of this parody as evidence
that the legislature’s stated secular purpose was a sham,
and we think rightly so; a few legislators singing a
parody does not evidence legislative intent, much less
No. 09-1455 17
overcome the clear statements of secular purpose made
by the legislature during debate.
In short, then, the debate of the initial bill and the
veto override overwhelmingly supports Illinois’s stated
secular purpose and provides a stark contrast to the
Wallace case. In Wallace, the bill’s sponsor inserted into
the legislative history a statement that the legislation
was an “effort to return voluntary prayer” to the public
schools. And the bill’s sponsor, during testimony at the
preliminary injunction stage, confirmed that was the
sole purpose of the statute. In contrast, here, the floor
debates confirm the asserted secular purpose.3
3
The Fifth Circuit noted in Croft, 562 F.3d at 748, n.7 that
“[w]here, as here, a valid secular purpose can be gleaned
from the text of the [moment of silence] statute at issue, we
are not convinced of the wisdom of reviewing legislative
history, an arduous and potentially risky task.” In Croft,
though, because the history supported the textual purpose,
the court found it “unnecessary to belabor the point.” Id.
We agree that reliance on legislative history to determine
whether a secular purpose is genuine or a sham is ques-
tionable, given that “what is relevant is the legislative purpose
of the statute, not the possibly religious motives of the
legislators who enacted the law.” Mergens, 496 U.S. at 249
(plurality opinion). Wallace, of course, did look to the legisla-
tive history behind Alabama’s moment of silence law, not to
second-guess an asserted secular purpose, but rather because
the only legislative purpose in that case was to return prayer
to public schools. Like the Fifth Circuit, though, we need not
belabor the point because the legislative history supports
the state’s asserted secular purpose.
18 No. 09-1455
Sherman also claims that the historical context demon-
strates that Section 1’s secular purpose is a sham, again
relying on Wallace. The historical context underlying
Section 1, however, differs significantly from that facing
the Court in Wallace. In Wallace, the historical context
made clear that Alabama was attempting to reintroduce
school prayer in a stepped approach: first by estab-
lishing a moment of silence in 1978, then in 1981 by
adding prayer to the statute, and finally, the following
year, by authorizing teachers to lead a prayer at the
beginning of the school day. Conversely, in this case,
the Illinois legislature adopted a period of silence in
1969 and the only change to that law came with the
2007 amendment making the period of silence manda-
tory.4 This timing contrasts sharply with Wallace’s
tightly choreographed historical context which moved
Alabama in four short years from a moment of silence to
a moment of teacher-led prayer.
4
The dissent believes Illinois’s “decision to make the Act
mandatory represents an effort to introduce religion into Illinois
public schools. . . .” (Dissent at 41-42). But making the moment
of silence mandatory (by changing the “may” to a “shall”),
changed nothing about the nature of Section 1. Section 1
always—since its original passage in 1969—listed silent prayer
as a permissible option. And the prayer option is no more
an effort to introduce religion into the public schools now
that the moment of silence is mandatory than it was in 1969
when Section 1 established a discretionary moment of silence.
No. 09-1455 19
b. Title of Act and Section 5 are Unrelated to Section 1
Sherman attempts to equate the historical context in
this case with Wallace by pointing to the change in the
title of the Act in 2002 from “the Silent Reflection Act” to
“the Silent Reflection and Student Prayer Act.” She
argues that the insertion of the word “prayer” in the
name of the Act confirms that the Illinois legislature
sought to promote religion. This argument completely
ignores the fact that the title of the Act was changed in
2002 when the Illinois legislature passed an entirely
separate law—Section 5—which addressed students’
right to pray and be free from state-sponsored prayer
in schools. Thus, the addition of “and Student Prayer
Act” to the title merely updates the Act’s title based on
the addition of a new section to the law.
Sherman and the ACLU also argue that the addition of
Section 5 itself is evidence of the Illinois legislature’s
desire to promote religion. They further assert that there
was no need for Illinois to pass a law allowing school
prayer because nothing prohibited the students from
praying. There are several flaws in this argument. First
and foremost, Sherman did not challenge the constitu-
tionality of Section 5. And even if she had, we see
nothing improper with the government attempting to
summarize constitutional protections in a statute. The
timing of Section 5 indicates that this is exactly what
the Illinois legislature had in mind as Section 5 was
adopted shortly after the Supreme Court issued its deci-
sion in Santa Fe Independent School District v. Doe, 530 U.S.
290 (2000). In Santa Fe, the Supreme Court held that
20 No. 09-1455
student-led, student-initiated prayer before a football
game violated the Establishment Clause, but the Court
also stressed that “nothing in the Constitution as inter-
preted by this Court prohibits any public school student
from voluntarily praying at any time before, during, or
after the schoolday.” Id. at 313. Second, while Sherman
and the ACLU portray Section 5 as promoting religion, it
does no such thing. Rather, Section 5 sets forth in a bal-
anced way the rights of students to both pray and to
be free from government-mandated prayer. Specifically,
Section 5 addresses students’ rights under both the Free
Exercise Clause and the Establishment Clause and
their rights to “free exercise of religion” and “freedom
to not be subject to pressure from the State either to
engage in or to refrain from religious observation on
public school grounds . . . .” 105 ILCS 20/5. Third, Sec-
tion 5 in no way addresses or relates to the period of
silence governed by Section 1. Section 1 established a
period of silence and addressed the prohibition on the
use of the period of silence as a religious exercise, as
well as the students’ right to pray during the period of
silence, if they chose. In Section 5, the Illinois legislature
was addressing an entirely separate issue—the students’
right to pray at other times during the school day, as
well as their right not to be subject to state-imposed
prayer. There is nothing in the text or legislative history
of Section 5 which indicates that the Illinois legislature
intended to amend or otherwise affect the period of
silence when it passed Section 5. In fact, Section 5 was
added by the legislature in 2002—three decades after
the original passage of Section 1—and during the legisla-
No. 09-1455 21
tive debate of Section 5, there was no mention of the
period of silence law established by Section 1. In short,
Section 5 is unrelated and separate from the question of
the constitutionality of Section 1.
c. Wallace Concurrences
As explained above, this case is entirely different from
the situation facing the Court in Wallace. Moreover, the
facts in this case mirror the scenarios presented by
Justices O’Connor and Powell in separate concurrences
of moment of silence laws which would pass constitu-
tional muster. We find these concurrences persuasive.
In their concurrences, both Justice O’Connor and
Justice Powell first stressed the unique facts presented in
Wallace—and the utter lack of any secular purpose
behind Alabama’s moment of silence law. See Wallace,
472 U.S. at 67 (O’Connor, J., concurring) (stating that
she was “writ[ing] separately to identify the peculiar
features of the Alabama law that render it invalid . . .”); id.
at 66 (Powell, J., concurring) (stating that he “would
vote to uphold the Alabama statute if it also had a
clear secular purpose[,] [but that] [n]othing in the
record before us, however, identifies a clear secular
purpose, and the State also has failed to identify any
nonreligious reason for the statute’s enactment”). Both
justices then stressed that, contrary to the law at issue
in Wallace, moment of silence laws of many states
would satisfy the Establishment Clause. Wallace, 472
U.S. at 67 (O’Connor, J., concurring); id. at 62 (Powell, J.,
concurring). Justice O’Connor elaborated on this point,
22 No. 09-1455
explaining that “[a] moment of silence law that is
clearly drafted and implemented so as to permit prayer,
meditation, and reflection within the prescribed period,
without endorsing one alternative over the others,
should pass” constitutional muster. She added that
“[e]ven if a statute specifies that a student may choose
to pray silently during a quiet moment, the State has not
thereby encouraged prayer over other specified alterna-
tives.” Wallace, 472 U.S. at 73 (O’Connor, J., concurring).
Justice O’Connor further stressed the need for courts
to defer to the legislature’s stated purpose: Where “a
legislature expresses a plausible secular purpose for
a moment of silence statute in either the text or the leg-
islative history, or [where] the statute disclaims an
intent to encourage prayer over alternatives during a
moment of silence, . . . courts should generally defer to
that stated intent.” Id. at 74-75 (O’Connor, J., concurring).
This case fits the scenarios Justices Powell and
O’Connor foresaw.5 In this case, Section 1 identified a
5
Justice Brennan had also envisioned constitutional moment of
silence laws years earlier in his concurrence in School District
of Abington Township v. Schempp, 374 U.S. 203, 281 (1963). In
Schempp, the Supreme Court invalidated laws requiring
public schools to open each school day with a recitation of
either the Lord’s prayer or a reading from the Bible. In
his concurring opinion, Justice Brennan suggested that
“the observance of a moment of reverent silence at the
opening of class” may serve “solely secular purposes . . . with-
out jeopardizing either the religious liberties of any members
(continued...)
No. 09-1455 23
clearly secular purpose of establishing a period of
silence, and nothing in the record indicates that the
statute was motivated, even in part, by a religious
purpose (although a law need not be premised solely on
secular purposes). Moreover, Section 1 “disclaims an
intent to encourage prayer over alternatives during a
moment of silence,” id., by stating that the period of
silence “shall not be used as a religious exercise.” 105
ILCS 20/1. In short, Section 1 provides a fitting illustra-
tion of a moment of silence law which protects “every
student’s right to engage in voluntary prayer during
an appropriate moment of silence during the school
day.” Wallace, 472 U.S. at 59
d. Sister Circuits
Subsequent to Wallace, four other circuits have con-
sidered the constitutionality of moment of silence laws.
First, the Third Circuit in May, 780 F.2d 240, held
that New Jersey’s moment of silence law violated the
Establishment Clause. May involved a situation, like
Wallace, in which there was no secular purpose
justifying the moment of silence law. Specifically, in
May the Third Circuit held that the district court’s con-
clusion that the legislature lacked any secular pur-
5
(...continued)
of the community or the proper degree of separation between
the spheres of religion and government.” Id. (Brennan, J.,
concurring).
24 No. 09-1455
pose for adopting the moment of silence was not clearly
erroneous. Id. at 252-53. The May court, though, ex-
pressly recognized that a moment of silence law
enacted with a secular purpose would be constitutional.
Id. at 251-52.
The Eleventh Circuit next considered the constitutional-
ity of a moment of silence law in Bown, 112 F.3d 1464.
At issue in Bown was Georgia’s moment of silence
law which required every teacher to open the school
day with a “brief period of quiet reflection for not
more than 60 seconds.” Id. at 1466 (quoting O.C.G.A.
§ 20-2-1050(a)). The statute further stated that the
moment of quiet reflection “is not intended to be and
shall not be conducted as a religious service or exercise
but shall be considered as an opportunity for a moment
of silent reflection on the anticipated activities of
the day.” Bown, 112 F.3d at 1466 (quoting O.C.G.A.
§ 20-2-1050(b)). Prior to amendment, Georgia’s moment
of silence law provided for a discretionary moment
of silence for “silent prayer or meditation.” Id. at 1470 n.3.
The Eleventh Circuit applied the Lemon test and
first considered whether the law served a valid secular
purpose. The court concluded that both the preamble
and the statutory language provided a secular purpose
and added that “[b]y stating that the moment of quiet
reflection shall not be conducted as a religious service
or exercise, the statute indicates that Georgia is not ad-
vocating the moment of quiet reflection as a time for
religious activity.” Id. at 1469-70. The court also reviewed
the legislative history in detail and noted that some
No. 09-1455 25
Georgia legislators had expressed religious motives for
voting for the Act. Id. at 1472. The Eleventh Circuit,
however, concluded that “[t]he Act’s legislative history,
although somewhat conflicting, is not inconsistent with
the express statutory language articulating a clear
secular purpose and disclaiming a religious purpose. . . .
We are thus faced with legislative history that is
much different from that in [Wallace].” Id. at 1471.
The Fourth Circuit was the next circuit to consider
the constitutionality of a moment of silence law. In
Brown, 258 F.3d 265, the court upheld Virginia’s moment
of silence law, which required schools to observe a
moment of silence during which students could “med-
itate, pray, or engage in any other silent activity . . . .” Id.
at 270 (citing Va. Code Ann. § 22.1-203). The Fourth
Circuit concluded that the statute’s text supported two
secular purposes: to promote non-religious meditation
and to accommodate religion. Id. at 276. The Brown
court concluded that a “statute having dual legitimate
purposes—one clearly secular and one the accommoda-
tion of religion—cannot run afoul of the first Lemon
prong.” Id. at 277.
Finally, in Croft, 562 F.3d 735, the Fifth Circuit upheld
Texas’s 2003 moment of silence law that required
school districts to observe one minute of silence during
which “each student may, as the student chooses, reflect,
pray, meditate, or engage in any other silent activity that
is not likely to interfere with or distract another stu-
dent.” Id. at 738 (quoting Tex. Educ. Code § 25.082). The
2003 moment of silence law challenged in Croft had
26 No. 09-1455
amended Texas’s 1995 moment of silence law. Among
other things, the amendment made the moment of silence
mandatory and added the word “pray” to the list of
options, as well as adding the catch-all “or engage in
any other silent activity that is not likely to interfere
with or distract another student.” Id. at 738-39. In addi-
tion to the moment of silence law, Texas also had
another statutory provision addressing the broader
First Amendment rights of students, similar to Illinois’s
Section 5. Croft, 562 F.3d at 738 (quoting Tex. Educ. Code
§ 25.901).
The Fifth Circuit held that Texas’s moment of silence
law had a valid secular purpose based on both the statu-
tory language and the legislative history. Croft,
562 F.3d at 746-49. After reviewing the legislative
history in detail, the court concluded that on the whole,
the legislative history suggested there were several
reasons for amending Texas’s moment of silence law,
“including the return to prayer but also purely secular
ones such as a reflective moment . . . . ” Id. The Croft
court added that “[e]ven if some legislators had religious
motives in promoting this legislation, there are clear
secular legislative purposes present.” Id. The court
then stressed that the Supreme Court in Wallace noted
that “even though a statute is ‘motivated in part by
a religious purpose’ it may still satisfy the Lemon test.”
Id. (quoting Wallace, 472 U.S. at 56). Thus, the court
upheld Texas’s moment of silence law and distinguished
it from Wallace and May, where there were no secular
purposes at all. Croft, 562 F.3d at 748-49.
No. 09-1455 27
This case is more in line with Croft, Brown, and Bown
than May. In Croft, Brown, and Bown the text of the
moment of silence laws at issue demonstrated a clear
secular purpose, and the legislative history supported
the asserted secular purpose. Moreover, Section 1, like
the statute at issue in Bown, clearly stated that the
period of silence shall not be used as a religious exercise.
Bown, 112 F.3d at 1466 (quoting O.C.G.A. § 20-2-1050(b)).
Where “a legislature expresses a plausible secular pur-
pose for a moment of silence statute in either the text or
the legislative history, or [where] the statute disclaims
an intent to encourage prayer over alternatives during
a moment of silence, . . . courts should generally defer to
that stated intent.” Wallace, 472 U.S. at 74-75 (O’Connor,
J., concurring).
In fact, in many ways, this case presents an even more
compelling case than Croft, Brown, and Bown. In those
cases, there was evidence that the goal of at least some
legislators was the return of prayer to school. Croft,
562 F.3d at 738-39 (acknowledging that “there were
references by some legislators to returning prayer to
schools”); Brown, 258 F.3d at 271 (noting that the
Senate sponsor “when asked by a newspaper reporter
about his intent in sponsoring the bill . . . responded
that his intent was not to force prayer in schools, but he
added, ‘[t]his country was based on belief in God, and
maybe we need to look at that again’ ”); Bown, 112 F.3d at
1471 (noting that some legislators “indicated a desire
to reinstitute school prayer”). There is no similar legisla-
tive history to either the original passage of Section 1 or
its recent amendment; rather, the legislative history to
28 No. 09-1455
Section 1 indicates a solely secular purpose. Moreover,
Illinois’s amendment to Section 1 did not add “pray” to
the list of permissible options, as the legislature in Croft
had done; rather, “prayer” has been included in Section 1
since its original passage in 1969. And unlike this case,
the statutes at issue in both Croft and Brown did not
specify that the moment of silence “shall not be con-
ducted as a religious exercise.” Croft, 562 F.3d at 738;
Brown, 258 F.3d at 271 n.1. Because Section 1 does
contain this prohibition, the constitutionality of the
Illinois statute is even more compelling.
1) “Prayer” Option
In response, Sherman argues that Bown is distin-
guishable because, unlike Section 1, the Georgia legisla-
ture in Bown had removed the word “prayer” from the
state’s moment of silence law and the Eleventh Circuit
noted that this deletion “provides some support for
the idea that the Act’s purpose is secular.” Id. at 1470 n.3.
She further claims that Brown and Croft were wrongly
decided because the moment of silence statutes in those
cases mentioned prayer; in her view, a moment of
silence law will only pass constitutional muster if it
does not mention “prayer.”
It is true that when the Georgia legislature amended
the statute at issue to make the moment of silence man-
datory, it simultaneously removed the word “prayer”
No. 09-1455 29
from the statute.6 But the Eleventh Circuit in Bown
merely found that deletion supported the government’s
secular purpose—it did not hold that a moment of
silence law would fail the Lemon test if the law included
prayer as a permissible activity. And we find nothing
wrong with Illinois’s (or Virginia’s or Texas’s) legislature
informing teachers and students alike that students
may pray during the period of silence, given that the
statutory language does not indicate any preference for
prayer over silent reflection. In fact, listing prayer as a
permissible option makes eminent sense in this case,
given that Section 1 expressly states that the period of
silence “shall not be used as a religious exercise.” 105 ILCS
2011. As Koch explained, it was important to note that
prayer is a permissible option to negate any impres-
sion that teachers or students may have that students
were not allowed to pray (silently) during the period of
6
The dissent asserts that it is telling that the drafters of the
amendment to Section 1, while aware of Georgia’s statute,
chose not to follow the Georgia legislature’s approach. But the
Illinois drafters were just as likely aware of the moment of si-
lence laws in Florida, Kansas, Louisiana, Nevada, North
Dakota, Ohio, Pennsylvania, and West Virginia, which like Sec-
tion 1, provided as illustrations of permissible activities only
prayer and meditation (and/or contemplation or reflection.) See,
e.g., Fla. Stat. § 1003.45; Kans. Stat. § 72-5308a; La. Stat., Tit. 17,
Ch. 10, Part II, Subpart B, § 2115; Nev. Rev. Stat. § 388.075;
N.D. Cent. Code, § 15.1-19-03.1; Ohio Rev. Code, § 3313.601;
Penn. Stat., Tit. 24, Ch. 1, § 15-1516.1; W.Va. Const., Art. III,
§ 15a. We do not find it unusual that states differ in the lan-
guage they use to achieve the same secular purpose.
30 No. 09-1455
silence.7 And deleting prayer from Section 1—after it had
been part of that statute for nearly forty years—could
actually evidence a hostility to religion which is itself
unconstitutional. Brown, 258 F.3d at 281-82 (finding that
striking down a moment of silence statute solely
because “pray” was used “would manifest a hostility to
religion that is plainly inconsistent with the religious
liberties secured by the Constitution”). Therefore,
contrary to Sherman’s argument, we conclude that a
moment of silence law can constitutionally include a
“prayer” option in accord with the holdings in Brown
and Croft. See Wallace, 472 U.S. at 73 (O’Connor, J., concur-
ring) (“Even if a statute specifies that a student may
choose to pray silently during a quiet moment, the State
has not thereby encouraged prayer over other specified
alternatives.”).
2) Catch-all Clause
Alternatively, Sherman argues that even if Brown and
Croft were correctly decided, this case is distinguishable
because the statutes at issue in those cases included the
catch-all phrase “any other silent activity.” Brown, 258
F.3d at 270 (quoting Va. Code Ann. § 22.1-203); Croft,
7
The dissent has difficulty believing that a reasonable person
could interpret Section 1 as barring prayer during the moment
of silence given the existence of Section 5. (Dissent at 45). But
when Section 1 was first adopted in 1969, Section 5 did not
exist. And, as explained above, see supra at 19-21, Section 5
is unrelated to Section 1 and addresses an entirely separate
issue than the moment of silence established by Section 1.
No. 09-1455 31
562 F.3d at 738 (quoting Tex. Educ. Code. § 25.082(d)).
Sherman claims that in contrast, Section 1 limits pupils to
only two activities—prayer or reflection on the day’s
activities. Sherman and the ACLU, however, misread
Section 1. Nothing in the text of Section 1 limits students’
thoughts during the period of silence; the text mandates
only one thing—silence. While Section 1 does state that
“[t]his period . . . shall be an opportunity for silent
prayer or for silent reflection on the anticipated activities
of the day,” providing an opportunity is not the same
thing as mandating conduct.8 There is nothing in the
statute limiting the use of the period of silence, and
the legislative history makes clear that the legislators
intended the moment of silence to be available for
any silent thought. See Statement of Senator Lightford,
S. Proceedings, 95th Ill. Gen. Assem., March 21, 2007, at 86,
88 (the moment “should not be conducted as a religious
exercise,” but rather was “a neutral act which affords
8
The dissent concludes that Section 1 limits permissible
choices during the moment of silence to two options (prayer
or silent reflection on the anticipated activities of the day),
because “[t]he Act says what it says.” (Dissent at 50-51). Exactly.
Section 1 says that the moment of silence “shall” be “an oppor-
tunity” for “prayer or silent reflection on the anticipated
activities of the day.” The dissent focuses on the “shall” and
the “prayer or silent reflection” language, while ignoring the
plain and ordinary meaning of the word “opportunity.”
Opportunities may be accepted—but they may also be
rejected, leaving students to their own thoughts, albeit silent
ones. The dissent also states that the Act requires teachers
to explain the two options to students, (dissent at 51) but there
is no such mandate in the language of Section 1.
32 No. 09-1455
students the opportunity to reflect on whatever they
wish, whether religious or not”); Statements of Senators
Cronin and Sieben, id. at 87-88 (supporting mandatory
moment of silence to “instill a little meditative exercise”
at the beginning of the day, however students may
choose to use it). Moreover, it would be unreasonable to
interpret the statute as limiting students’ thoughts to
prayer or reflection as there is no way a teacher could
know what a student is pondering, and we will not in-
terpret a law in an absurd way. Zbaraz v. Madigan, 572
F.3d 370, 386-87 (7th Cir. 2009). Thus, while the text of
Section 1 differs from the statutes at issue in Virginia
and Texas, Section 1, like those statutes, permits any
silent activity. See also Bown, 112 F.3d at 1472-73 (noting
that Georgia’s moment of silence statute, which pro-
vided that it “shall be considered as an opportunity for
a moment of silent reflection on the anticipated activities
of the day,” allowed students to “use the moment of
quiet reflection as they wish, so long as they remain
silent”). Accordingly, we reject Sherman’s argument
that Section 1 is unconstitutional because it lacks a catch-
all clause.
2. Primary Effect
The second prong of Lemon considers whether the
government’s practice has the principal or primary effect
of advancing or inhibiting religion. Lemon, 403 U.S. at 613.
Under this prong, the question is: “irrespective of gov-
ernment’s actual purpose, whether the practice under
review in fact conveys a message of endorsement or
disapproval.” Freedom from Religion Foundation, Inc. v.
No. 09-1455 33
City of Marshfield, Wis., 203 F.3d 487, 493 (7th Cir. 2000)
(internal quotation omitted). The ACLU argues that
Section 1 has the principal or primary effect of advancing
religion by limiting students’ thoughts during the period
of silence to one of two topics (prayer or reflection on
the day’s activity), making prayer an attractive alterna-
tive. However, as explained above, see supra at 30-32,
Section 1 does not limit students’ thoughts during the
moment of silence and thus this argument fails. Of course,
should a school (or an individual teacher) implement
Section 1 in a way which encourages (or discourages)
prayer, that would be another case. But in this case
Sherman presents solely a facial challenge and facially
the statute only mandates a period of silence and con-
veys neither a message of endorsement nor disapproval.
Justice O’Connor in her concurrence in Wallace put it
best when she said: “It is difficult to discern a serious
threat to religious liberty from a room of silent, thoughtful
schoolchildren.” Wallace, 472 U.S. at 73 (O’Connor, J.,
concurring). In fact, the plain language of Section 1 shows
that Illinois acted with neutrality—avoiding both endorse-
ment (by stating that the period of silence shall not be
conducted as a religious exercise) and disapproval (by
stating that the period of silence shall be an opportunity
for prayer or silent reflection).
The decisions from our sister circuits support
this conclusion.9 In Bown, the Eleventh Circuit held that
9
The Supreme Court in Wallace did not address the second
and third prongs of the Lemon test, having concluded that
(continued...)
34 No. 09-1455
Georgia’s moment of silence law satisfied Lemon’s sec-
ond prong because the law merely required students to
remain silent and “explicitly says that the moment of
quiet reflection is not to be conducted as a religious
exercise.” Bown, 112 F.3d at 1473. And there was no
suggestion “that students should or should not pray
silently during the moment of quiet reflection.” Id. Simi-
larly, in Brown, the Fourth Circuit held that the second
prong of Lemon was clearly satisfied because the statute
was facially neutral “between religious and nonreligious
modes of introspection and other silent activity.” Brown,
258 F.3d at 277. Further, Brown rejected the plaintiff’s
argument that “despite the statute’s facial neutrality be-
tween silent religious expression and silent nonreligious
expression, the statute’s inevitable effect . . . will be to
promote prayer by creating the perception, especially
from the viewpoint of young, impressionable school
children, that the Commonwealth endorses prayer.”
Brown, 258 F.3d at 277-78. The court reasoned that “[i]n
the context of a facial challenge, however, this fear is
speculative at best . . . .” Brown, 258 F.3d at 278. The
Brown court concluded that “speculative fears as to the
potential effects of this statute [on school children]
cannot be used to strike down a statute that on its face
is neutral between religious and nonreligious activity.”
Id. Croft likewise held that the moment of silence law
did not “have the primary effect of advancing religion,
and so survives the second Lemon prong.” 562 F.3d at
9
(...continued)
the moment of silence law in that case lacked any secular
purpose.
No. 09-1455 35
749. Even May, which held New Jersey’s moment of
silence law unconstitutional, held that the statute did
not have the primary effect of advancing or inhibiting
religion. May, 780 F.2d at 247-50.
Alternatively, Sherman argues that Section 1 violates
the second prong of Lemon by favoring some religions
(those which engage in silent prayer) over other
religions (those which do not). Attorneys General amici
urge us to reject this argument because this reasoning
would render unconstitutional the moment of silence
laws of more than thirty states because, by their
nature, moment of silence laws will always preclude
vocal prayer.
We agree with Koch and the Attorneys General amici:
A moment of silence law does not violate the Establish-
ment Clause by favoring some religions. The government
may not favor “one religion over another without a legiti-
mate secular reason.” Nelson v. Miller, 570 F.3d 868, 881
(7th Cir. 2009). In this case, to the extent it could be con-
sidering “favoring” some religions by providing a
period of silence, there is a valid secular reason for not
allowing vocal prayer during that time—maintaining
silence. Therefore, Section 1 neither advances nor inhibits
any particular religion in violation of Lemon’s second
prong.
Our sister circuits have reached the same conclusion
on this issue as well. For instance, in Bown, the plaintiff
argued that “the Act, by mandating a moment of silence,
both advances and inhibits religion by favoring silent
prayer and discouraging other forms of prayer.” Bown,
36 No. 09-1455
112 F.3d at 1472. The Eleventh Circuit rejected this argu-
ment stressing “[t]he Act mandates a moment of quiet
reflection, not a moment of silent prayer.” Id. at 1472. The
court then concluded that “so long as the moment of
quiet reflection exercise is conducted in the manner
prescribed by the statute (i.e., that the moment of quiet
reflection is silent and is not conducted as a religious
exercise),” the statute does not violate the second prong
of Lemon. Bown, 112 F.3d at 1473. Similarly, the Fifth
Circuit in Croft rejected the argument that the moment
of silence law discriminates against religions that do not
practice silent prayer, explaining the statute “provides
for a minute of silence and allows any non-disruptive
silent activity.” Croft, 562 F.3d at 750. Requiring that
students “be silent does not discriminate among religious
sects.” Id. Thus, Section 1 does not have the primary
effect of advancing or inhibiting religion in violation
of Lemon’s second prong.
3. Entanglement With Religion
Under the third prong of the Lemon test, a “statute must
not foster an excessive government entanglement with
religion.” Lemon, 403 U.S. at 613. This prong is not at
issue here because Sherman did not argue, nor did the
district court find, that Section 1 fostered an excessive
entanglement with religion. See Books, 401 F.3d at 858 n.1.
(“Books has not argued that the display excessively
entangles government with religion, the third inquiry
under Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), so we
do not address that issue.”). Nor do we believe that
No. 09-1455 37
such an argument would succeed because Section 1
mandates only a period of silence and thus there is no
need for schools, teachers, or students to become en-
tangled in questions of religion. Every circuit to have
considered this issue has reached a similar conclusion.
See Croft, 562 F.3d at 750 (stating that “no court has
ever accepted—especially on a facial challenge—that a
moment of silence statute is excessive government entan-
glement with religion”); Brown, 258 F.3d at 278 (“And
the third prong—that the State not become excessively
entangled with religion—is undoubtedly satisfied.”);
Bown, 112 F.3d at 1474 (“We conclude that there is no
excessive entanglement in this case. All that the Act
requires is that the students and the teacher in charge
remain silent during the moment of quiet reflection.”);
May, 780 F.2d at 247 (holding that moment of silence
statute did not foster an excessive entanglement with
religion, but affirming district court’s conclusion that
statute was unconstitutional because the district court’s
factual finding that the law lacked a secular purpose
was not clearly erroneous). See also Wallace, 472 U.S. at 66
(Powell, J., concurring) (stating the “effect of a straight-
forward moment-of-silence statute [would not] . . .
foster an excessive government entanglement with reli-
gion”).
C. Vagueness
Finally, Sherman asserts that Section 1 is unconstitu-
tionally vague in violation of the Due Process Clause of
the Fourteenth Amendment because it does not specify
38 No. 09-1455
how the period of silence will be implemented
or penalties for violations of the statute. “The void for
vagueness doctrine rests on the basic principle of due
process that a law is unconstitutional if its prohibitions
are not clearly defined.” Karlin v. Foust, 188 F.3d 446, 458
(7th Cir. 1999) (internal quotation omitted). The Due
Process Clause, though, does not demand “perfect clarity
and precise guidance.” Ward v. Rock Against Racism,
491 U.S. 781, 794 (1989). Rather, a statute is only uncon-
stitutionally vague “if it fails to define the offense
with sufficient definiteness that ordinary people can
understand what conduct is prohibited and it fails
to establish standards to permit enforcement in a nonar-
bitrary, nondiscriminatory manner.” Fuller ex rel. Fuller
v. Decatur Public School Bd. of Educ. Sch. Dist. 61, 251
F.3d 662, 666 (7th Cir. 2001). However, “the degree of
vagueness that the Constitution tolerates—as well as the
relative importance of fair notice and fair enforce-
ment—depends in part on the nature of the enactment.”
Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498 (1982). The Constitution tolerates
a lesser degree of vagueness in enactments “with
criminal rather than civil penalties because the conse-
quences of imprecision are more severe.” Karlin, 188
F.3d at 458. And “[g]iven the school’s need to be able
to impose disciplinary sanctions for a wide range of
unanticipated conduct disruptive of the educational
process, the school disciplinary rules need not be
as detailed as a criminal code.” Fuller, 251 F.3d at 667
(quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686
(1986)). Moreover, in a facial vagueness challenge the
No. 09-1455 39
question is whether the statute is vague in all its opera-
tions. Id.
While Section 1 does not define the length of the
period of silence, it is not unconstitutionally vague in all
its applications, as demonstrated by District 214’s pro-
posed implementation of the statute. At a hearing at
the preliminary injunction stage, District 214 indicated
that it intended to implement Section 1 by making a
school-wide morning announcement: “We will now have
a brief period of silence.” Then, after fifteen seconds
had passed, the announcer would begin the Pledge. A
student of ordinary intelligence would clearly under-
stand that he is to remain silent for the fifteen seconds
between the announcement and the beginning of the
Pledge. And given the school setting, the Constitution
does not mandate a cornucopia of additional details or
a statement of the punishment students will face
should they disregard their teacher’s direction. Sherman,
therefore, cannot complain of the vagueness of the law
in every situation and her Due Process challenge fails.
III.
The Illinois legislature had a secular purpose in
passing Section 1, namely mandating a period of silence
to calm school children before the start of their day.
There is no evidence that the secular purpose is a sham
and that Illinois’s true purpose was to promote prayer.
And there is nothing impermissible about clarifying
that students may pray during that time period. Section 1
also does not advance or inhibit religion (or specific
40 No. 09-1455
religions that practice momentary silent prayer), but
rather mandates only a period of silence. There is also
no state entanglement with religion. Therefore, Section 1
satisfies the Lemon test and Sherman’s First Amendment
challenge fails. Sherman’s vagueness challenge also
fails because Section 1 is not unconstitutionally vague
in all of its operations. For these and the foregoing
reasons, we R EVERSE and R EMAND to the district court
with instructions to enter judgment in favor of Koch.
W ILLIAMS, Circuit Judge, dissenting. I respectfully
dissent. I would affirm the district court’s ruling on the
basis that the Silent Reflection and Student Prayer
Act (the “Act”) violates the Establishment Clause of
the First Amendment. The Act makes what I believe to
be an unnecessary reference to prayer, signaling a pre-
dominantly religious purpose to the statute. And by enu-
merating prayer as one of only two specific permissible
activities, the Act conveys a message that Illinois
students should engage in prayer during the prescribed
period as opposed to a host of other silent options. I have
concluded that the purpose and effect of the Act is to
encourage prayer in public schools, which violates the
first two prongs of the Lemon test. See Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971).
No. 09-1455 41
The Act states that the mandatory period of silence:
[S]hall 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.
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,” Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000), 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.” McCreary County, Ky. v. American
Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005). And
we are “particularly vigilant in monitoring compliance
with the Establishment Clause in elementary and second-
ary 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.” Edwards v. Aguillard, 482 U.S. 578, 583-
84 (1987).
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
42 No. 09-1455
into Illinois public schools, couched in the “hollow guise”
of a mandated period of silence. See Brown v. Gilmore,
258 F.3d 265, 282 (4th Cir. 2001) (King, J., dissenting).
While the secular purposes articulated by the state
might not be “shams,” it seems clear to me that to what-
ever extent they are genuine, they are secondary to reli-
gious 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 en-
courage prayer in the public schools.” H.R. Proceedings,
95th Ill. Gen. Assem., May 31, 2007, at 64 (statement of
Rep. Currie). 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 rever-
ends and people who are interested in having prayer in
the public schools.” H.R. Proceedings, 95th Ill. Gen.
Assem., Oct. 11, 2007, at 90 (statement of Rep. Lang).
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. See Lemon, 403
U.S. at 612; see also Santa Fe, 530 U.S. at 315-16.
The majority states that there is no legislative history
indicating that it was the goal of any legislators to intro-
duce prayer into schools. (Op. at 15, 27). I disagree. There
are troubling statements in the record indicating
religious motivations on the part of some of the Act’s
supporters. The bill’s chief sponsor, Senator Kimberly
Lightford, said this to the press: “Here in the General
No. 09-1455 43
Assembly we open every day with a prayer and Pledge
of Allegiance. I don’t get a choice about that. I don’t
see why students should have a choice.” And when the
bill was first up for a vote, some legislators broke out
into song on the House floor, singing the following
words to the tune of Simon and Garfunkel’s “Sounds of
Silence”:
Hello school prayer, our old friend
It’s time to vote on you again
In our school house without warning
You seek a moment in the morning.
I agree with the majority that there are, of course,
statements of secular purpose in the legislative record.
But I part ways with my colleagues in that I simply
have trouble accepting those purposes as anything more
than pretextual. See, e.g., May v. Cooperman, 780 F.2d
240, 251 (3d Cir. 1985) (affirming district court’s conclu-
sion that legislators’ stated purpose for period of si-
lence, “to provide a transition from nonschool life to
school life,” was pretextual); see also Edwards, 482 U.S. at
594 (“The plain meaning of the statute’s words . . . can
control the determination of legislative purpose.”). The
Act’s purported secular goal—establishing a period of
silence to calm students and prepare them for the
day—could be achieved before it was made mandatory
in 2007. If Illinois’s public school teachers (who are in
the best position to assess the matter) felt students
needed a period of silence for a calming, transitional
period in the morning, they have had the authority
to impose one since 1969. Here, just as in Wallace,
“[a]ppellants have not identified any secular purpose
44 No. 09-1455
that was not fully served by [existing state law] before
the enactment of [the statute in question].” Wallace v.
Jaffree, 472 U.S. 38, 59 (1985); see also Edwards, 482 U.S.
at 587-88.
If legislators truly wanted to mandate a meditative,
calming period of silence for students, all they had to
do was model the Act after Georgia’s period-of-silence
statute, O.C.G.A. § 20-2-1050. The Georgia law is nearly
identical to the statute here, except that it does not refer
to prayer. Compare O.C.G.A. § 20-2-1050(b) (period “shall
be considered as an opportunity for a moment of silent
reflection on the anticipated activities of the day”) with
105 ILCS 20/1 (period “shall be an opportunity for silent
prayer or for silent reflection on the anticipated activities
of the day”) (emphasis added). The Eleventh Circuit
upheld the Georgia statute in Bown v. Gwinnett County
School Dist., 112 F.3d 1464, 1469-72 (11th Cir. 1997), finding
it had a valid secular purpose and that it did not convey
a message of endorsement of religion. It is fair to
assume that the drafters of the recent amendment to the
Act were aware of statutes like Georgia’s. The fact that
they chose not to follow the Georgia model is revealing.
My colleagues correctly point out that the Illinois
drafters were just as likely aware of a number of other
states’ period-of-silence laws that do mention prayer.
(Op. at 18 n.4). But the difference between every statute
the majority lists and the Georgia statute is that
Georgia’s has survived a post-Wallace First Amendment
challenge in a federal court of appeals. So if the legis-
lators really did intend to simply mandate a period of
silence for secular purposes, one might think that when
No. 09-1455 45
amending the Act they would have modeled it after a
statute they could be confident was appropriately doing
just that. See County of Allegheny v. American Civil Liberties
Union, 492 U.S. 573, 618 n.67 (1989) (availability of secular
alternative is “obvious factor” in deciding whether gov-
ernment’s choice constitutes an endorsement of religion).
The majority believes that the mention of prayer in the
Act is warranted to “negate any impression” students may
have that prayer is not permitted, an impression that
might come from the clause that says the period “shall not
be conducted as a religious exercise.” (Op. at 29). That
argument might be more persuasive if Section 1 was
the only part of the Act. But immediately following that
clause, the Act goes on to say this:
Student prayer. In order that the right of every
student to the free exercise of religion is guaranteed
within the public schools and that each student has
the freedom to not be subject to pressure from
the State either to engage in or to refrain from
religious observation on public school grounds, stu-
dents in the public schools may voluntarily engage in
individually initiated, non-disruptive prayer that,
consistent with the Free Exercise and Establishment
Clauses of the United States and Illinois Constitutions,
is not sponsored, promoted, or endorsed in any man-
ner by the school or any school employee.
105 ILCS 20/5. I have difficulty with the idea that any rea-
sonable person, reading the above (in, remember, a
law called the “Silent Reflection and Student Prayer Act”),
could come away with even the slightest impression
46 No. 09-1455
that prayer might not be a permissible activity during
the period of silence. In light of Section 5, there is simply
no negative inference about prayer that needs to be
rebutted.
The majority claims that Section 5 is unrelated to
Section 1. (Op at 21). But in interpreting a statute, we look
not only to the specific statutory language at issue, but
to “the language and design of the statute as a whole.”
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see
also Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 568 (1995)
(court’s duty is “to construe statutes, not isolated provi-
sions.”); Square D. Co. and Subsidiaries v. C.I.R., 438 F.3d
739, 745 (7th Cir. 2006). Section 5 is thus directly
relevant to understanding the purpose of the Act. Nor
does Section 5 address an “entirely separate issue” than
Section 1. (Op. at 20). Section 5 codifies (unnecessarily,
I might add) the First Amendment right of students to
engage in “individually initiated, non-disruptive
prayer.” Isn’t that what “silent prayer” under Section 1 is?
While I question the decision to reference prayer in the
Act here, I also recognize that inserting the term does not
automatically render every period-of-silence statute
unconstitutional. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 76
(1985) (O’Connor, J., concurring) (“A moment of silence
law that is clearly drafted and implemented so as to
permit prayer, meditation, and reflection within the
prescribed period, without endorsing one alternative
over the others, should pass this test.”). Post-Wallace,
two of our sister circuits have indeed upheld period-of-
silence statutes that directly reference prayer as an
No. 09-1455 47
option. See Croft v. Governor of Texas, 562 F.3d 735, 750-51
(5th Cir. 2009); Brown, 258 F.3d at 282. But the statutes
in those cases differ from the Act here in a critical way:
they provide “catch-all” alternatives to the prayer option.
The Act, in contrast, provides a forced, binary choice
between two substantively specific activities—(1) pray;
or (2) silently reflect on the anticipated activities of the
day—and in so doing, conveys the message that the
state of Illinois favors these two activities over a host of
other silent options. To the extent that a reference to
prayer is permissible in a period-of-silence statute, the
Act here still fails to pass muster. See Wallace, 472 U.S. at
73 (O’Connor, J., concurring) (“The face of [a] statute . . .
may clearly establish that it seeks to encourage or
promote voluntary prayer over other alternatives.”).
In Brown, the Fourth Circuit rejected an Establishment
Clause challenge to a Virginia period of silence statute
during which a student could “in the exercise of his or
her individual choice, meditate, pray, or engage in any
other silent activity.” Va. Code Ann. § 22.1-203 (emphasis
added). Assessing the language of the statute, the
Fourth Circuit noted that “[b]ecause the state imposes
no substantive requirement during the silence, it is not
religiously coercive.” Brown, 258 F.3d at 281. The court
noted with approval the fact that the word “pray” in the
Virginia statute was coupled with “an unlimited range
of mental activities that are authorized during the
minute of silence.” Id. at 281-82 (emphasis added). The
Act, in contrast, does impose a substantive require-
ment during the silence—there are only two specific
48 No. 09-1455
choices, pray or think about that day’s activities—instead
of coupling the prayer option with an unlimited range
of other permissible activities.
And in Croft, the Fifth Circuit evaluated a challenge to
a Texas period of silence law that also had a catch-all non-
prayer option. See 562 F.3d at 738-39. The Texas
statute provided for a period during which “each student
may, as the student chooses, reflect, pray, meditate,
or engage in any other silent activity.” Tex. Educ. Code
25.082(d) (emphasis added). The Fifth Circuit noted
with approval the fact that the Texas statute “clearly
state[s] that children may pursue ‘any other silent activity’
during the moment of silence. ‘Not praying’ is thus
covered by the catchall provision.” 562 F.3d at 749 (em-
phasis in original, citation omitted). The Croft court also
noted that the Texas statute is “facially neutral between
religious and non-religious activities.” Id. Again, this
is in stark contrast to the Act here. The Act here is not
facially neutral between religious and non-religious
activities. It specifically highlights prayer as one of two
permissible choices, and in so doing elevates it as a pre-
ferred activity over many non-religious options.
The majority disagrees with the premise that the Act
mandates a binary either/or choice, and instead con-
cludes that it permits “any silent activity.” (Op. at 32). But
that simply is not what the Act says. It is a primary rule
of statutory interpretation that we give words in a
statute their plain and ordinary meaning. See Ind. Forest
Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 857 (7th
Cir. 2003). The words in the Act are very clear: they say
No. 09-1455 49
that the period “shall”—a mandatory, not discretionary
term, see Robinson Farms Co. v. D’Acquisto, 962 F.2d 680,
684 (7th Cir. 1992)—be an opportunity for (1) silent
prayer or (2) silent reflection on the anticipated activities
of the day. I, like the district court, interpret this language
as limiting the permissible choices to those two specific
options.
Phrasing the two choices as “opportunities” does not
matter. If the Act said that the moment of silence
“shall be an opportunity for silently thinking about
Shakespeare or for silent reflection on the anticipated
activities of the day,” could anyone seriously argue that
the Act was not expressing a preference on the part of the
State of Illinois that its public school students engage
in these two activities over others? Calling the two
options “opportunities” does nothing to change the fact
that they are being expressly highlighted and endorsed.
See Brown, 258 F.3d at 290 (King, J., dissenting) (“I am
not comforted by the . . . statute’s allowance of ‘choice.’
Simply because the Commonwealth does not explicitly
require its public school students to pray does not mean
that they are not being subtly coerced to do so.”). Again,
why list prayer as an example at all? The answer is be-
cause, professed secular goals notwithstanding (at least
two of the Act’s supporters actually claimed that
the period of silence might lessen bullying and school
shootings), the true purpose of statutes such as this one
is to promote prayer. See id. at 284 n.3 (King, J., dissenting)
(“any objective observer” should recognize that “the
real purpose” of the Virginia statute at issue is endorse-
50 No. 09-1455
ment of prayer in public schools); see also Christine
Rienstra Kiracofe, “Pretending Not To Pray?: A Historical
Overview of Moment of Silence Legislation and Why
Illinois’ Statute Clearly Violated the Lemon Test,” 241 Ed.
Law. Rep. 1, 16 (2009) (“Although the state of Illinois
argued that [the Act] did, in fact, have a secular pur-
pose, the history of the bill and its sponsors seemed
to suggest otherwise.”).1
The majority quotes statements from some legislators
indicating that they intended the period to be a time
for “any silent thought.” (Op. at 31). But such state-
ments fly directly in the face of what the Act unambigu-
ously says, and it is the words of the statute that con-
trol. See DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1008
(7th Cir. 2010) (“Legislative history comes into play only
when necessary to decode an ambiguous enactment.”).
If the Illinois legislature wanted the range of permis-
sible options to be broader, it certainly possessed the
vocabulary to have expressed that. It is not our place to
rewrite the statute to say something it does not. The Act
1
It is also worth noting that while this case was pending
before the district court, Illinois lawmakers made efforts to
modify the Act through additional legislation. One bill, HB 4180,
would have changed the name of the Act to the “Student
Silent Reflection Act” and changed the period of silence
back from mandatory to optional. Another bill, HB 4186, would
have similarly removed the word “prayer” from the Act’s
title, and would have removed Section 1’s reference to
silent prayer. Both bills failed. See Kiracofe at 15.
No. 09-1455 51
says what it says. And even under the alternative
reading advanced by the majority—that the choices are
simply nonlimiting examples—isn’t the Act still at least
expressing a preference for those enumerated activities?
See Santa Fe, 530 U.S. at 316 (“[T]he simple enactment of
this policy, with the purpose and perception of school
endorsement of student prayer, was a constitutional
violation.”).
The majority further concludes that it would be “unrea-
sonable” to interpret the statute as limiting the choices
to prayer or reflection, because teachers cannot possibly
know what a student is thinking. (Op. at 32). I agree
that there are obvious problems with enforcement of the
Act, but questions about implementation do not change
what the statute says. Realistically enforceable or not
(and I agree with the district court’s conclusion that
compliance with the Act will require that teachers
explain the two options to students), the Act, on its
face, expresses a preference for prayer as one of
two specific activities that the state of Illinois wants
schoolchildren to engage in, over all others. This is
impermissible. See Santa Fe, 530 U.S. at 316.
There is a “line between creating a quiet moment
during which those so inclined may pray, and affirma-
tively endorsing the particular religious practice of
prayer. This line may be a fine one, but our precedents
and the principles of religious liberty require that
we draw it.” Wallace, 472 U.S. at 84 (O’Connor, J., concur-
ring). I believe that by referencing prayer unneces-
sarily, and by making it one of only two specific activ-
ities permitted during the period, the Act falls on the
52 No. 09-1455
wrong side of this line. I would affirm the district
court’s ruling that the Act as written violates the Estab-
lishment Clause.
10-15-10