Sherman Ex Rel. Sherman v. Koch

here, to hold an eviden- were no indications court with instructions unlike there And going badly tiary were for the exact hearing. the cases While the contours cases, in both the trial had government; hearing up such a will be the district Jozwiak, example, just commenced. determine, expect court to we would it to judge to what observed in contrast testimony prose- involve from at least the here, court noted that “[t]his the district Delportillo. cutor and not a situation where a case certainly was government for the moti- going poorly

was a mistrial situation.”

vating it to create appeal And as we noted on

Id. at 460.

Jozwiak, ... prosecutor’s case was “[t]he downhill; going, peri- it was not going after the It ended within minutes

od. speak.” (emphasis rose to prosecutor SHERMAN, minor, through Dawn S. in original). SHERMAN, I. her father and Robert contrast, here, in are The circumstances friend, next on behalf of herself and more troubling more and raise simply similarly situated, all others Plain than those in Jozwiak or Gil questions tiff-Appellee, those cases involved what more. Whereas “blunders”, F.2d appeared to be Oseni ques here there are more serious Christopher KOCH, Dr. State Su given intent government’s

tions about the Education, perintendent of and circumstances of what oc timing Defendant-Appellant. Oseni, conclude curred. As we did we No. 09-1455. explanation investigation that further reaching a firm conclu is needed before Appeals, United States Court of intent. prosecutor’s sion on the Seventh Circuit. scope of rul- We stress the limited our Argued Feb. 2010. ing. express opinion no on whether it We prosecutor’s pro- was fact the intent to Decided Oct. 2010. moving voke Cornelius into for a mistrial Rehearing En Banc Denied did, question our asking the he Dec. opinion should not be taken to be a conclu- way sion either on that ultimate issue. We hold that the circumstances were

simply

troubling enough, government’s unsatisfactory

explanation enough, that judge

was not reasonable for the district

have reached a conclusion without an evi-

dentiary hearing. See 996 F.2d at Oseni “backstop” a case where the

189. This is evidentiary hearing necessary.

of an

Gilmore, 454 F.3d at 730.

III. CONCLUSION

We Vacate the district court’s double

jeopardy ruling and Remand to the district (argued), Chicago,

Richard D. Grossman IL, Plaintiff-Appellee. (argued), Murphy

Rachel A. Office General, IL, Attorney Chicago, for De- fendant-Appellant. Ho, of the At- argued,

James C. Office Texas, Austin, TX, torney General Cortman, Defense David Andrew Alliance Fund, Lawrenceville, GA, Jonathan K. Rosenman, LLP, Baum, Katten Muchin (argued), Roger D. Bald- Adam Schwartz Inc., ACLU, Chicago, win Foundation Fitschen, IL, Legal National W. Steven Beach, VA, Foundation, Ami- Virginia implementing enforcing from appeals. cus Curiae. Koch appeal, On extensively Sherman relies RIPPLE, MANTON, Before 38, 56, Jaffree, on Wallace v. WILLIAMS, Judges. Circuit (1985), 86 L.Ed.2d 29 wherein MANION, Judge. Circuit Supreme Court held that Alabama’s moment of silence law lacked Illinois amended Section purpose and was thus unconstitutional. Prayer the Silent Reflection and Student points She likewise to the Third Circuit mandatory Act making in May Cooperman, decision schools; amendment, public prior in to this (3d Cir.1985), which held that the option observing teachers had the Jersey New moment of silence law violated period beginning of silence at the of the the Establishment responds Clause. Koch day. legislature school After the Illinois May, that unlike Wallace and where there Sherman, amended Section Dawn purpose was no secular justifying the mo father, Sherman, through I. her Robert issue, ment of silence laws at Illinois’s Christopher sued Koch in official ca- his period of silence law provided the secular pacity Superintendent as of the Illinois purpose having a uniform moment of (“Koch”), State Board of Education and quiet reflection to calm school children be (“Dis- Township High School District 214 Thus, fore day. start Koch 214”), alleging trict Section was claims, passes Section 1 constitutional facially unconstitutional. The district muster, as do the Georgia, Virginia, and plaintiff court certified a class of all public Texas moment upheld by of silence laws Illinois, school students in with Sherman Eleventh, Fourth and Fifth in Circuits representative (“Sherman”), as the class District, Bown v. County Gwinnett School public and a defendant class of all school (11th Cir.1997), 112 F.3d 1464 Brown v. Illinois, districts with District 214 as the Gilmore, (4th Cir.2001), 258 F.3d 265 and representative. parties class filed Texas, v. Governor 562 F.3d 735 summary cross-motions judgment. Croft (5th Cir.2009). agree. We Like the stat granted The district court Sherman sum- Bown, Brown, utes at issue in Croft, mary judgment, concluding that Section Section 1 serves violated the first and second prongs of the does not have principal or primary Lemon test and thus the Establishment effect of promoting religion. Section Specifically, Clause. the district court unconstitutionally also is not vague. Ac held that lacked a secular pur- cordingly, we reverse and remand. pose that it primary had the effect of advancing or inhibiting religion by favor- ing religions prayer which I. (over not). religions which do The district Since Illinois has had a statute court further held that Section 1 un- authorizing period in public of silence constitutionally vague violation of the school original classrooms. The Due Process Clause of the Constitution provided:

because it did not specify length of the period of how the period of silence An Act to authorize the observance of a implemented, would be penalty or the period brief of silence in public school violating the statute. The district court classrooms at the opening of each school permanently enjoined then day. the defendants public § silence. 1. each Period of of the State People it enacted

Be charge the teacher school classroom Illinois, the General represented period of silence observe brief shall Assembly: pupils of all the participation school class- In1. each of ev- opening assembled at the therein charge may observe teacher room the day. This shall ery school partic- with the a brief exercise but conducted therein assem- pupils all the ipation of for silent opportunity shall be day. every opening at the bled anticipated on the for silent reflection as a not be conducted This shall day. activities oppor- be an but shall religious exercise added). (emphasis 105 ILCS 20/1 re- or for silent tunity for silent vetoed Blagojevich Rod Then-Governor activities of anticipated flection on amendment, but the Illinois day. and the amendment be- overrode the veto Ill.Rev.Stat.1969, par. ch. 11, 2007. On effective on October came Sherman, through Dawn October 1990, assigned an act that part In school, father, high her District her sued statutes, the law titles to hundreds short 1983, 214, seeking § 42 de- under U.S.C. title, “the Silent Re- the short given was injunctive relief that Section claratory and 86-1324, 933, § eff. Act flection Act.” Pub. facially 1 invalid under the First Amend- is Then, 2002, 6, the Illinois 1990. Sept. later, Less than one week Sherman ment. Act, a section to the added new complaint for an amended class action filed right forth a student’s which set Section 42 declaratory injunctive relief under (and religion specifically to free exercise of 214 against § 1983 District U.S.C. non-disruptive pray- engage right Koch, facially 1 is alleging Section er) pressure to be free from right and his the First Amendment be- invalid under engage in or refrain from the State religion it effects an establishment of cause observance. 105 ILCS from Amendment be- and under the Fourteenth Simultaneously, legisla- the Illinois 20/5.1 unconstitutionally vague. cause act to the short title of the ture amended In the district court November Prayer Reflection and Student “the Silent enjoined the from preliminarily defendants 92-832, 1, 2003. Act eff. Jan. Act.” Pub. 1. enforcing or Section Sher- implementing Pray- and Student a bilat- Reflection moved for certification of Silent man then early until unchanged The district court certified er Act remained eral class. public legislature passed Illinois class of all students plaintiff 2007 when the Illinois, represented making in the State of amending Section schools bill Sherman, class of all mandatory by changing by defendant Illi- in the State of public observe.” school districts “may observe” to “shall phrase nois, 214. The by District amendment, represented 1 Section read: After this initiated, non-disrup- full, individually engage in provides: “In order that Section that, Ex- every to the free exercise with the Free right of student tive consistent public guaranteed religion within the Clauses of the Unit- and Establishment ercise Constitutions, the freedom and that each student has schools is not and Illinois ed States subject pressure from the State to not be any promoted, sponsored, or endorsed from in or to refrain either to employ- the school or school manner grounds, stu- observation on ILCS ee.” 105 20/5. voluntarily public schools dents in the Kurtzman, prelimi- court then extended the district (1971), class mem- 29 nary injunction to all defendant L.Ed.2d because it had no purpose pur clear secular bers. stated pose was sham. The district court also Sherman, by amicus curiae supported concluded that Section 1 violates the sec Liberties the American Civil Union prong primary ond of Lemon because its (“ACLU”), summary judg- moved for then religion. effect is to advance or inhibit ment, arguing that Section violates the The district court further held Section because it Establishment Clause lacks unconstitutionally vague because it purpose, endorses and dis- “provides no direction as to how ‘peri against religions whose criminates beliefs od’ of implemented, silence should be how concept momentary, do not embrace the last, long should and whether prayer. Sherman also claimed that pupils permitted pray would be in a unconstitutionally vague Section 1 is be- manner was either audible or re specify it does not how the cause quired movement.” v. Township Sherman implemented penal- silence will be or the High F.Supp.2d School Dist. complying ties for not with the statute. (N.D.Ill.2009). The district court then Koch, supported by amicus curiae Alli- enjoined permanently the defendants from (“ADF”), ance Defense Fund also filed a implementing enforcing 1. Koch summary judgment. motion for He ar- appeals.2 gued that serves the secular providing a uniform moment of II. quiet reflection to calm school children be- A. Standing they day. fore start And ac- while knowledging the law could be misapplied Initially we consider Sherman’s stand- prayer, endorse Koch asserted that the ing, because if a representative class lacks statute is neutral on its face and offers filed, standing at the time the complaint is secular benefits to all students. Koch fur- the entire class action should be dismissed. argued ther that the law is not unconstitu- (7th 430, v. Edgar, Walters 163 F.3d 437 tionally vague applications, all its as Cir.1998) (“[T]he present properly suit was many successfully school districts had im- dismissed for want standing, dooming plemented of silence. the class action plain- [the because named

The district court denied standing Koch’s motion lacked when tiffs] filed the suit....”). summary judgment granted and Sher- To standing, plaintiff have “a motion, (1) man’s concluding allege that Section 1 must that he has suffered an (2) injury violates Establishment Clause and is in fact fairly that is traceable to unconstitutionally (3) vague violation of the the action of the defendant and Due Process likely Clause of the Fourteenth will be redressed with a favorable Specifically, Ind., Amendment. the district decision.” Books v. County, Elkhart (7th Cir.2005) (internal 857, court concluded that Section 1 violates the omitted). prong test, first quotation of the Lemon see Lemon and citation Carolina, Texas, Utah, appeal, again sylvania, 2. On the ACLU and Virgi- ADF filed South Additionally, nia, curiae amicus ers, Inc., briefs. Wallbuild- Washington) filed amicus curiae attorneys general of seven- support briefs in of Koch. We thank these Florida, Idaho, Indiana, (Alabama, teen states parties helpful for their contributions to the Louisiana, Nevada, Mississippi, North Car- court. olina, Dakota, Ohio, Oklahoma, North Penn- argues ADF imposes Amicus that Sherman Fourteenth Amendment sub- limitations stantive not suf Establishment standing lacks because she has legislative power on the it, Clause ADF injury. As sees Sherman fered an and their political States subdivisions. injury she has cognizable lacks a because Doe, Indep. Santa Fe Sch. Dist. v. expo direct and unwelcome suffered S.Ct. L.Ed.2d exercises, practices, or sure to (2000). The has Supreme Court fur- “subjects Section 1 words—rather. Kurtzman, in Lemon ther held 403 U.S. brief silence.” The Fifth Cir Plaintiff to (1971), 91 S.Ct. 29 L.Ed.2d 745 Croft, rejected cuit this same argument “First, the that to be constitutional: stat- There, at 514. 562 F.3d 735. infra legislative pur- must have a ute had Texas’s mo plaintiff challenged second, pose; principal primary its ef- ADF, law who also ment of silence be one fect must that neither advances nor case, an amicus in that ar appeared as religion; finally, the statute inhibits must lacked because a gued standing that Croft government not foster an excessive entan- injure plain of silence did not moment 612-13, religion.” glement with Id. at Fifth Croft, tiff. 562 F.3d at 745. The (internal quotations cita- argument, noting rejected Circuit omitted). prong tions We consider each be question “that determined on the Lemon test turn. merits, determining come which must after jurisdiction we have to hear whether Purpose 1. Secular held Id. at 746. court further case.” Lemon, question the first Under standing had because the Crofts the law whether at issue has a secular public are “their children enrolled Texas Lemon, legislative purpose. 403 U.S. at required and are to observe schools A daily.” part by religious purpose motivated in case, is a Similarly, Sherman satisfy and nonetheless the first criterion in Illinois and student at a Jaffree, of Lemon. Wallace v. subject mandatory 1 is to a under Section (1985). 56, 2479, 29 105 S.Ct. 86 L.Ed.2d that alleges silence. Sherman Thus, “a not be purpose secular need exposes her to Section l’s one; gov if the exclusive sufficient [is] practice of the Es- violation ” ‘a purpose.’ ernment had secular Bri that is true is tablishment Clause. Whether O’Bannon, 796, v. denbaugh 800 claim, not question of the merits of her (7th Cir.1999) added). (emphasis As we claim; her standing bring to her in Metzl 57 explained Leininger, v. F.3d a student her stand- status as establishes (7th 618, Cir.1995), pro 620 law that “[a] ing to sue. Id. religion may upheld motes nevertheless purposes ... because secular that B. Establishment Clause Finally, law also serves.” we note that the then, Turning, Sher the merits: recognized Court Supreme has argues man 1 violates the first rarely purpose prong Lemon has been Amendment. The First Amendment First government determinative “because [the] provides, part, “Congress in relevant generally unconstitutionally, does not act law respecting shall make no establish predominant purpose with the advanc religion, prohibiting County, Ky. the free ing religion.” McCreary ment of ” Const, thereof;.... amend. Ky., American Civil Liberties Union exercise U.S. 859, 2722, that the Supreme I. Court has held 545 U.S. 162 (2005). Wallace, And in L.Ed.2d 729 those rare

eases where the has invalidated a Court which the Court considered the constitu illegitimate statute of an purpose, because tionality of Alabama’s moment of silence “openly supported available data a com law, provided: which “At the commence religious objec monsense conclusion that a ment of the first class of day each in all permeated, government’s tive action.” grades public in all schools the teacher 863, 125 at Id. S.Ct. 2722. charge of the room in which each class is held announce that a period of silence case, In this Koch asserts that Sec not to exceed one minute in duration shall tion 1 purpose provid serves the secular be observed for voluntary meditation or ing a moment of silence at the beginning of prayer, and during any such period each no day to calm students and other activities ready day. engaged them for the school shall be in.” Sherman quieting pupils concedes that n. down (quoting S.Ct. 2479 Alabama beginning day 16-1-20.1). of the school § serves valid Code The Court held that pedagogical However, purpose. Sherman Alabama’s moment of silence law lacked contends that pur Illinois’s stated secular purpose. 59-60, secular Id. at pose is not sincere—that it is a sham-—and However, S.Ct. 2479. while striking the purpose that the promote real is to prayer. Wallace, Alabama the Supreme recognized Court legislative “[t]he in court recognized

This in Indiana tent to return prayer public to the schools O’Bannon, Civil Liberties Union v. is, course, quite merely different from (7th Cir.2001), F.3d gen we protecting every right student’s erally government’s defer to the articula in voluntary prayer during an appropriate tion of a purpose unless it is a moment of sham. assessing day.” whether a law the school has a secular purpose sham, 59, 105 or the is a S.Ct. 2479. we look to the “plain meaning of the stat This case significantly different than words, ute’s enlightened by their context Wallace. In Wallace there was no evi- contemporaneous and the legislative histo rather, dence of a secular purpose; ry [and] the historical context of the stat legislative asserted purpose was to return ute, ... specific sequence of sponsor schools. The leading events passage.” [its] the moment of silence law in that case McCreary, 545 U.S. at 125 S.Ct. 2722 legislative “inserted into the ap- (internal omitted). quotation marks record — parently without dissent —a statement in-

a. Jaffree, Wallace v. dicating that legislation the was an ‘effort (1985) 38, to return voluntary prayer’ public to the 56-57, schools.” Id. at 105 S.Ct. 2479. argues Sherman the language of sponsor The bill’s later pur- confirmed this (i.e., Section that the period of silence pose in proceedings, court testifying that “shall opportunity be an for silent he was “prime sponsor” the of the bill or for silent and anticipated reflection on the that the bill was an “effort to day”), 20/1, activities of the return volun- 105 ILCS cou- tary prayer to our pled public with Section schools ... legislative history l’s is a and context, beginning historical and a in step right demonstrates that the di- the 43, purpose asserted secular rection.” is a sham. Id. at 105 S.Ct. 2479. The support position, of her sponsor Sherman relies bill’s apart also testified that from heavily Supreme on the opinion Court’s in purpose the to voluntary prayer return to 2007, school, Assem., 21, in purpose he “no other Ill. Gen. March at 88. public had Lightford explained mind.” that her intent in Id. to amending the law was “create uniformi suspect a histori also involved Wallace schools,” ty across the in all our so State of challenged cal context. public that all school students would be 1981, passed though even Wallace was opportunity the given same “medita just recently legislature the state had tion, moment of reflection.” Id. (1978) of period authorized a one-minute further emphasized She that the moment public silence in all schools “for medita a religious “should be conducted as 40, Then in tion.” Id. at 105 S.Ct. 2479. exercise,” but rather was “a neutral act 1982, another the state enacted opportunity which students the affords provision authorizing teachers to lead wish, reflect on whatever whether “willing prescribed students” in a religious or not.” Id. at During 86. de and “Almighty God ... the Creator bill, on other bate members of the That Supreme Judge of the world.” Id. and expressed support House Senate for a confirmed sponsor’s context historical mandatory quiet of moment silence stu of law testimony that moment and a dents to “instill little meditative just a beginning step “a at beginning day. exercise” of the Id. right direction” the “effort to return (statements 87, at Cronin Sens. & voluntary prayer public to our schools.” (statements Sieben); see at also id. 43, 105 Id. S.Ct. 2479. Meeks); Proceedings, Sen. H.R. 95th 111. case, Conversely in has State Assem., May Gen. at 63-64. And 1— purpose offered a secular throughout the debates no one either establishing of silence for all spoke House or Senate using school children Illinois to calm the stu- period of silence as a mechanism to return dents for a learn- prepare day them prayer to the schools. ing. plain language the statute bill, After the Governor vetoed the supports purpose this secular establish- propriety Senate House debated the ing mandatory of silence: “In moment overriding During the veto. these de each school the teacher in classroom bates, those the bill supporting again charge shall a brief of si- observe spoke mandatory need for a participation pu- lence with the of all the begin of silence to calm students at the pils opening therein assembled at ning day. Proceedings, school S. every day.” ILCS And 20/1. Assem., 11; Ill. Gen. 95th Oct. emphatically pe- Section 1 declares: “This Assem., Proceedings, H.R. 95th Ill. Gen. riod shall not be conducted 11, 2007, Oct. 99. The Senate spon Thus, plain language exercise....” also sor reiterated of si purpose disavows lence was not to be conducted as reli gious Proceedings, exercise. S. 95th Ill. sham, legis- than exposing Rather Assem., Gen. Oct. at 11. And as history lative the secular confirms the on the original passage with debate of spon- Specifically, of Section 1. the Senate bill, the were no statements there indicat sor, that, Lightford, explained un- Senator legislative a ing prayer intent to return to der the 1969 of the law some version school. observing teachers were a of si- lence, colleague dissenting but others —often the same Our claims sec- Proceedings, purpose secondary religious school—were not. 95th ular to mo- S. Therefore, fives, made the ILCS it is not reasonable citing statements 20/1. bill, opponents to the by press quote expression House debate read the as an by made including repre by comments one Lightford Senator of a desire to insti- who, in support of sus speaking sentative tute school as undermining or the veto, Blagojevich’s fo taining Governor stated secular of Section 1. purpose motivation of religious cused on the the Allen, 388, 394-95, Mueller v. his in sup who called office (1983) constituents (stating L.Ed.2d 521). (Dissent 1. port of Section the Court is reluctant “to attribute there are “troubling dissent also asserts states, par- unconstitutional motives to the indicating record statements the reli ticularly plausible purpose when a secular gious part the of some of motivations on may for the program state’s discerned supporters,” pointing press the Act’s to a statute”). Rather, from the face of the the (Dis a report parody. singing and the proposed sought solely amendment 521-22). However, sent at “what is rele change “may” the a “shall” in Section 1. purpose vant legislative is the the stat Thus the is for mandate silence. Re- ute, possibly the motives of take-off, garding the Simon and Garfunkel enacted legislators the who the law.” neither Sherman nor ACLU relied on Board Education Westside Commu singing as parody evidence that 226, 249, nity Mergens, Schools v. legislature’s purpose stated (1990) 110 L.Ed.2d 191 sham, so; think rightly was a a we (plurality opinion). Even less relevant are legislators parody few singing does not the motives of to a bill opponents and the intent, legislative evidence much less over- Moreover, varied constituent. motives of come the clear of secular pur- statements assuming even motivation was relevant pose legislature during made de- and that a could press report be consid bate. history, legislative ered Senator Light- short, then, In newspaper

ford’s the debate of the initial reporter statement (that Assembly opens bill and the veto every overwhelmingly General override day Pledge supports with a secular purpose Alle Illinois’s stated giance, get and that “I provides don’t choice” and a stark contrast to the Wal “I why don’t see lace students should have a case. In the bill’s sponsor choice”) bearing on history has no Section 1. inserted into legislative a state may open Illinois legislation its sessions ment that the was an “effort to prayer by assigned clergy return voluntary prayer” to the legislators that day. Some schools. prefer sponsor, during And the bill’s testimony injunction silence. But Section does not preliminary likewise require day stage, schools to start with a was the purpose confirmed that sole fact, contrast, prayer. here, In expressly states the statute. In the floor of silence “shall purp not be debates confirm the asserted secular conducted as exercise.” 105 ose.3 Croft, history supported purpose, The Fifth Circuit noted in textual F.3d at here, "[wjhere, "unnecessary n. 7 a valid secu- court found it to belabor the purpose gleaned point.” lar agree legisla- can be from the text of Id. We that reliance on issue, history tive [moment silence] we to determine whether a secular purpose genuine questionable, are reviewing not convinced of wisdom of a sham is legislative history, given legislative potentially an arduous and is the "what is relevant statute, risky Croft, though, possibly task.” not the because the reli- argu- This religion. promote sought to the historical that also claims

Sherman that the fact ignores the completely ment l’s secu- that Section demonstrates context when in 2002 changed the Act was title of sham, relying on again is a lar entirely passed legislature the Illinois underly- context historical Wallace. addressed 5—which law—Section separate however, significantly differs ing Section free from and be right pray to students’ in Wallace. the Court facing from that Thus, in schools. prayer state-sponsored made clear context the historical Prayer Act” “and Student the addition reintro- to attempting Alabama that title the Act’s merely updates title to the approach: stepped in a prayer school duce to section of new the addition in based on of silence a moment establishing by first the law. to the prayer by adding in 1981 then by following year, the statute, finally, that argue the ACLU also Sherman prayer to lead authorizing teachers is evidence 5 itself of Section the addition day. Con- of the school beginning the pro- to desire legislature’s Illinois the case, legislature Illinois the in this versely, They assert further religion. mote silence in adopted a law pass for Illinois was no need there the law came with only change to nothing because allowing prayer of silence the making amendment praying. from the students prohibited sharp- timing contrasts This mandatory.4 argument. several flaws There are choreographed tightly Wallace’s ly with foremost, chal- did not Sherman First Alabama which moved context historical constitutionality of Section 5. the lenge of silence from a moment years four short im- had, nothing if we see she And even prayer. teacher-led to a moment of attempting to government with the proper in a protections constitutional summarize 5 are and Section Act b. Title of 5 indicates timing of Section statute. to Section Unrelated legisla- the Illinois exactly what that this adopted 5 was as Section ture had mind the histori- equate attempts Sherman issued its Supreme Court after the shortly Wallace case with in this cal context Independent School Fe Santa decision title of in the change to the pointing Doe, District Reflection from “the Silent in 2002 Act (2000). In Santa 147 L.Ed.2d and Student Reflection to “the Act” Silent that student- Fe, Supreme Court held the insertion argues that Act.” She Prayer a foot- before led, student-initiated name of “prayer” of the word the Establishment violated game ball the Illinois Act confirms public religion Illinois into to introduce who enacted legislators gious motives schools____” 521). (Dissent making But Mergens,496 U.S. at the law.” course, Wallace, of opinion). mandatory (by chang- (plurality moment of silence history Ala- behind legislative "shall”), nothing did look changed ing “may” to a law, not to second- of silence bama’s moment 1 al- Section 1. Section about the nature rather purpose, but secular guess an asserted 1969— original passage in ways its —since only legislative purpose because option. permissible prayer as a listed silent public schools. prayer to to return case was an effort to option is no more And the Circuit, though, we need Like Fifth now religion schools into introduce legislative histo- point because belabor the mandatory than pur- asserted ry supports state’s 1 established 1969 when Section it was in pose. moment of silence. discretionary "decision believes Illinois's 4. The dissent represents an effort mandatory make Act Clause, but the Court also stressed that c. Wallace Concurrences “nothing in the interpreted Constitution as above, explained As entirely this case is by this prohibits any public Court school different from the facing situation voluntarily student from praying any at Moreover, Court Wallace. facts before, time during, or after the school- this case mirror the presented scenarios 313, day.” Second, by 120 S.Ct. 2266. Justices O’Connor and sepa Powell in rate while concurrences of Sherman and the moment of ACLU silence portray laws which would pass constitutional mus Section 5 as promoting religion, it does no ter. We find these persua concurrences Rather, such thing. Section 5 sets forth sive. In concurrences, their both Justice way rights balanced of students to O’Connor and Justice Powell first stressed pray both government- and to be free from unique facts presented Wallace— mandated prayer. Specifically, Section 5 and the utter lack of any addresses rights students’ under both behind Alabama’s moment of silence law. Free Exercise Clause and the Establish- Wallace, 105 S.Ct. 2479 ment rights and their Clause to “free exer- (O’Connor, J., concurring) (stating that she religion” cise of and “freedom to not was “writ[ing] separately to identify the subject to pressure from the State either peculiar features of the Alabama law that to engage in or to refrain from religious ...”); render it invalid id. at ” on public observation grounds.... school (Powell, J., concurring) (stating that Third, 105 ILCS Section 5 way 20/5. no he “would vote uphold the Alabama addresses or period relates to the si- statute if it also had clear secular pur governed lence by Section 1. Section 1 pose^] [but [njothing that] in the record established a period of silence us, and ad- however, before identifies a clear secu dressed prohibition on the lar purpose, use of the and the State also has failed period identify religious exercise, nonreligious as a reason for the enactment”). statute’s well justices as the Both students’ then right pray during that, stressed contrary to the law at issue if chose. Wallace, silence laws of Section legislature Illinois ad- was many states satisfy would the Establish dressing an entirely separate issue—the ment Clause. 472 U.S. at right students’ pray at other times dur- (O’Connor, J., S.Ct. 2479 concurring); id. ing the day, as well as their right (Powell, J., concur subject to be to state-imposed prayer. ring). Justice O’Connor elaborated on this There is nothing in the text or legislative point, explaining that “[a] moment of si history of Section 5 which indicates that lence law that is clearly drafted imple legislature Illinois intended to amend mented so as to permit prayer, meditation, affect otherwise and reflection prescribed within the peri when it passed fact, Section In5. Section 5 od, without endorsing one alternative over by added in 2002— others, pass” should constitutional three original decades after the passage muster. She added if “[e]ven a stat Section during 1—and legislative de- ute specifies that a student choose to bate of Section there was no mention pray silently quiet moment, the of silence law established State has not thereby encouraged prayer short, Section 1. In is unrelated over specified other alternatives.” Wal and separate from the question of the con- lace, (O’Con 472 U.S. at 105 S.Ct. 2479 stitutionality nor, J., concurring). Justice O’Connor fur-

513 May the need to violated the Clause. ther stressed for courts defer Establishment Wallace, situation, a like involved which legislature’s purpose: to stated Where purpose justifying was secular there no expresses a legislature plausible “a secular Specifically, law. moment of silence of purpose for a moment silence statute May the Third Circuit held that the dis- legislative history, the text or the either trict court’s conclusion that the statute disclaims an intent to [where] the any purpose adopting lacked secular encourage during over alternatives prayer clearly not the moment of silence was erro- silence, a ... moment of courts should court, May The neous. Id. 252-53. generally defer to stated intent.” Id. though, expressly recognized that a mo- 74-75, (O’Connor, J., 105 S.Ct. 2479 of with ment silence law enacted a secular concurring). purpose would be constitutional. Id. at This fits the case scenarios Justices 251-52. In Powell and O’Connor foresaw.5 The Eleventh Circuit next considered case, clearly 1 a Section identified secular a constitutionality of moment of silence establishing of a of Bown, law in 112 F.3d 1464. At issue in nothing indicates that record Georgia’s of Bourn moment silence law motivated, in part, by the statute was even required every open which teacher to a a religious purpose (although law need day quiet school with a “brief of solely premised pur- on secular reflection for not more than 60 seconds.” Moreover, poses). 1 an “disclaims (quoting § Id. at 20-2- 1466 O.C.G.A. to alterna- encourage prayer intent over 1050(a)). The statute further stated that id., silence,” a during tives moment of quiet moment of reflection “is not in stating of silence “shall not tended to be and not be shall conducted as religious be used as exercise.” 105 a religious service or exercise but shall be short, In 1 provides ILCS 20/1. an opportunity considered as a moment fitting illustration of moment of silence anticipated of silent reflection on activ protects “every right law which student’s Bown, day.” ities F.3d voluntary during prayer 20-2-1050(b)). (quoting § O.C.G.A. Prior appropriate moment silence amendment, Georgia’s moment si Wallace, day.” school 472 U.S. at discretionary law for a provided lence mo S.Ct. 2479. ment of silence for “silent or medi d. Sister Circuits tation.” Id. at 1470n. 3. four

Subsequent applied other cir- The Eleventh Circuit the Lemon constitutionality cuits have considered the test first considered whether law First, of moment of laws. purpose. served valid secular court in May, preamble Third Circuit held concluded that both the Jersey’s statutory pur- language provided that New moment of silence law secular opinion, suggest- concurring 5. Justice Brennan had also envisioned consti Justice Brennan years laws a moment of tutional moment of silence earlier ed “the observance of rever- Abing opening in his concurrence in District ent silence at the of class’’ serve School 203, 281, Township Schempp, “solely purposes jeopard- ... without ton (1963). izing L.Ed.2d 844 In either the liberties of mem- Schempp, community proper degree Supreme invalidated laws or the Court bers religion open separation spheres requiring public each between the schools (Brennan, J., day government.” a recitation either the Lord's concur- reading ring). or a from the Bible. his 25.082). “[b]y pose § stating and added moment of silence quiet challenged reflection shall not be law had amended Tex- Croft as a service or exer- Among conducted as’s moment silence law. cise, Georgia things, the indicates that other statute the amendment made the advocating of quiet the moment reflec- moment of mandatory silence and added religious activity.” tion as a time for Id. at “pray” options, the word to the list of as leg- 1469-70. The court the adding also reviewed well as catch-all in engage the “or history in any islative detail and that activity likely noted other silent that is not Georgia legislators some had expressed re- to interfere with or distract another stu- ligious voting for motives the Act. Id. dent.” Id. at In 738-39. addition to the Circuit, however, law, at 1472. The Eleventh moment of silence also had Texas that Act’s legislative concluded his- another statutory provision addressing “[t]he tory, although conflicting, somewhat is not rights broader First Amendment of stu- dents, express statutory with inconsistent similar Croft, to Illinois’s Section 5. language articulating pur- a clear secular 562 F.3d at (quoting Tex. Educ.Code 25.901). pose disclaiming religious pur- § and

pose legisla- .... We are faced thus The Fifth held Circuit that Texas’s mo history tive that is much different from ment of silence law had a valid secular that in Id. at 1471. [Wallace ].” purpose based both statutory on lan

The Fourth Circuit was the next circuit guage legislative history. Croft, to the constitutionality consider of a mo- 562 F.3d at reviewing 746-49. After Brown, ment of silence law. In F.3d legislative detail, in history court con upheld Virginia’s whole, court moment cluded that on legislative law, silence which required history schools to ob- suggested there were several rea serve a moment of during silence which sons for amending Texas’s moment of si “meditate, students pray, law, could “including lence the return to prayer in any activity....” silent other Id. at 270 but purely also secular ones such as a 22.1-203). (citing § Va.Code Ann. The ----” reflective moment The Id. Croft Fourth Circuit concluded the statute’s court added that if legislators “[e]ven some supported text purposes: two secular religious had motives in promoting this promote non-religious legislation, meditation and to there are clear legisla secular religion. accommodate Id. at purposes tive present.” Id. court then Brown court concluded that a hav- Supreme “statute stressed in Court Wal ing legitimate dual purposes clearly lace noted that though “even a statute is —one secular one reli- accommodation of in part ‘motivated purpose’ it gion run afoul of the first Lemon satisfy still the Lemon test.” Id. —cannot prong.” at 277. (quoting 472 U.S. at 2479). Thus, upheld the court Texas’s mo Finally, Croft, the Fifth ment distinguished silence law and Circuit upheld Texas’s moment of May, from Wallace and where there were silence that required law districts purposes no secular at all. Croft, 562 F.3d observe one minute of silence which at 748-19. may, chooses, “each student as the student reflect, meditate, pray, or engage This case is Croft, more line with activity Brown, other likely is not than May. Croft, Bown Brown, interfere with or distract another student.” and Bown the text of the moment Id. at (quoting Tex. Edue.Code of silence laws at issue demonstrated a Moreover, Illinois’s purpose. secular legislative purpose, clear secular add secular 1 did not the asserted amendment Section history supported Moreover, like the permissible options, as “pray” to the list of purpose. Bown, clearly rather, done; stated at issue in had Croft shall not used silence has been included “prayer” Bown, 112 F.3d at exercise. 1969. And original passage in since its 20-2-1050(b)). § (quoting O.C.G.A. case, the statutes issue unlike plausible legislature expresses “a Where specify and Brown did not both Croft a moment “shall not be con- legislative text or the in either the statute Croft, a exercise.” ducted as statute disclaims an history, or the [where] Brown, 738; 258 F.3d at 271 n. F.3d at alterna- encourage prayer over intent to this prohi- Because Section does contain ... a moment of during tives bition, the constitutionality the Illinois defer to that stat- generally courts should compelling. statute is even more 74-75, Wallace, 472 U.S. at intent.” ed (O’Connor,J., concurring). 5.Ct. 2479 1) “Prayer” Option fact, many presents this ways, In case response, argues In that Bown Sherman Croft, compelling even case than more because, is unlike distinguishable cases, Brown, Bown. In those there and 1, Georgia legislature in Bown had goal that the of at least some was evidence “prayer” from the removed word prayer return of to legislators was the moment of law state’s silence (ac- Croft, 562 F.3d at 738-39 school. this Eleventh Circuit noted that deletion that “there were references knowledging that “provides support some idea prayer to by legislators returning some Act’s is secular.” Brown, schools”); 271 (noting 258 F.3d at n. claims that Brown and 3. She further “when asked sponsor that the Senate wrongly were decided because the Croft intent reporter about his newspaper in those cases moment statutes responded the bill ... his sponsoring view, prayer; in her a moment mentioned schools, prayer not to intent was force only pass law constitutional silence will added, country based on but he ‘[t]his “prayer.” if it not mention muster does God, maybe need to look belief in we Georgia It legisla- is true that when the ”); Bown, 112 at 1471 at that F.3d again’ ture at issue to make amended the statute (noting legislators “indicated that some it mandatory, simul- prayer”). reinstitute desire taneously “prayer” the word from removed history legislative no similar There is Circuit in But the Eleventh statute.6 original of Section or passage either the merely sup- that deletion amendment; rather, Bown found legisla- its recent government’s purpose— solely ported secular history tive to Section indicates reflection.) (and/or contemplation telling or it tion 6. The asserts that dissent See, 1003.45; § e.g., Stat. Fla. Stat. Kans. Section while drafters of the amendment 72-5308a; Stat., II, statute, § Georgia’s La. Tit. Ch. Part not to fol- aware of chose 388.075; B, 2115; § § Subpart Nev.Rev.Stat. Georgia legislature’s approach. But low the 15.1-19-03.1; Cent.Code, § Rev. just likely N.D. Ohio were aware the Illinois drafters Code, 3313.601; Stat., Florida, § Penn. Tit. Ch. silence laws in of the moment of 15-1516.1; III, Dakota, Const., Nevada, Kansas, Louisiana, § § Art. 15a. W.Va. North Ohio, Virginia, We do not find it unusual that states differ Pennsylvania, and West which language they use to achieve the same provided as like illustrations purpose. permissible prayer and medita- activities did not hold that a moment of silence in Brown and Croft. law fail the would Lemon test if the law (O’Connor, J., 105 S.Ct. 2479 activity. included as a permissible (“Even concurring) if a specifies wrong And find nothing we with Illinois’s pray student silently choose to (or Texas’s) Virginia’s in- moment, quiet the State has not forming teachers and students alike that thereby encouraged prayer over other may pray during students alternatives.”). specified silence, given statutory language does indicate any preference pray- 2) Catch-all Clause fact, er over listing silent reflection. Alternatively, argues Sherman that even permissible option aas emi- makes if Brown correctly decided, were Croft case, nent given sense this that Section case distinguishable because the 1 expressly states the period of si- statutes at issue those cases included lence “shall not be used as a phrase “any catch-all other silent activ- exercise.” 105 ILCS As Koch ex- 20/1. Brown, ity.” 258 F.3d at 270 (quoting plained, it was important pray- to note that 22.1-203); Croft, § Va.Code Ann. 562 F.3d er a permissible option is to negate any at (quoting Tex. Educ.Code. impression that teachers or students 25.082(d)). § Sherman claims that in con- have that students were not allowed to trast, Section pupils 1 limits to only two pray (silently) during period the of si- prayer or reflection on the activities — lence.7 And deleting prayer from Section day’s ACLU, activities. Sherman and the 1—after it had been of part that statute however, Section Nothing misread 1. in the for nearly forty years actually evi- —could of text Section 1 limits thoughts students’ hostility dence a religion to which is itself during silence; the period the text man- Brown, unconstitutional. 258 F.3d at 281- thing dates one While Sec- 82 (finding that down striking a moment of —silence. tion does state “[t]his ... silence statute solely because “pray” was be an shall opportunity for silent used “would or hostility manifest a religion to for silent on plainly anticipated is reflection the with ac- inconsistent the reli- gious tivities of day,” liberties the by providing opportuni- secured the Constitu- tion”). Therefore, ty contrary thing the same Sherman’s as mandating argument, we that a conclude conduct.8 There is nothing moment the statute can constitutionally law limiting include a use “prayer” option holdings accord legislative and the history makes clear that 7. difficulty believing dissent has says (Dis- that a says.” because "[t]he Act what it person interpret 525). reasonable could Section 1 Exactly. says sent at Section 1 that the barring prayer as during the moment of si- opportuni- moment of silence "shall” be "an (Dis- given lence the existence of Section 5. ty” "prayer or silent reflection on the 522-23). sent at But when Section 1 was anticipated day.” activities of the The dissent adopted first Section 5 did not exist. focuses on "shall” "prayer or And, above, 511-12, explained supra as see at language, silent ignoring reflection” while Section is5 unrelated to Section 1 and ad- plain and ordinary meaning "op- of the word entirely separate dresses an issue than portunity.” Opportunities may accepted'— be moment of silence established they may rejected, but leaving also stu- thoughts, dents their own albeit silent ones. 8. The dissent requires concludes that Section 1 limits The dissent also Act states that the permissible during the explain choices moment of si- teachers to options the two to stu- dents, (dissent options 525) (prayer lence to two or silent reflec- at but there no such tion anticipated day), on the language activities of the mandate in the of Section 1. question “irrespective is: prong, the moment of si intended legislators purpose, whether the government’s actual thought. available lence to be conveys under fact Lightford, practice S. review of Senator See Statement Assem., disapproval.” Ill. March or Proceedings, message 95th Gen. of endorsement (the Foundation, 21, 2007, “should not Religion Inc. Freedom from exercise,” Wis., but as a 203 F.3d Marshfield, be conducted v. City of Cir.2000) (internal act which affords (7th “a neutral rather was quotation omit to reflect on opportunity ted). students argues that Section 1 The ACLU wish, religious or whether whatever effect of ad principal primary has or not”); of Senators Cronin Statements limiting religion by students’ vancing mandatory (supporting Sieben, at 87-88 id. of silence to thoughts during “instill little medita moment of silence topics reflection on (prayer one two day, beginning tive exercise” an at day’s activity), making prayer it). use may choose to students however However, as tractive alternative. ex to in Moreover, unreasonable it would be above, 516-17, plained supra see limiting students’ terpret the statute thoughts does not limit students’ as there is thoughts or reflection thus this argu the moment silence and know what stu way no a teacher could (or course, fails. Of should ment not inter and we will pondering, dent is teacher) implement Section 1 an individual Zbaraz v. way. in an pret a law absurd (or encourages discourag in a way which (7th Cir. 386-87 Madigan, es) another case. prayer, that would be 2009). Thus, 1 the text of Section while solely But this presents case Sherman in Virgi at issue from the statutes differs challenge facially the statute facial Texas, like those stat nia and of and con period mandates a silence utes, activity. See also any silent permits veys message of endorsement neither (noting Bown, that 112 F.3d at 1472-73 in her disapproval. nor Justice O’Connor statute, which moment of silence Georgia’s put it best when Wallace concurrence it be as that “shall considered provided “It discern a seri she is difficult to said: of silent reflec a moment opportunity liberty from room religious ous threat anticipated tion activities on silent, thoughtful of schoolchildren.” Wal day,” to “use the moment allowed students (O’Con lace, 73, 105 472 U.S. at wish, long so quiet of reflection as fact, nor, J., concurring). plain In silent”). Accordingly, we re they remain that Illinois language of Section shows that Section is ject argument Sherman’s neutrality avoiding both en with acted — a catch-all lacks unconstitutional because (by stating of that dorsement clause. as a reli shall not conducted silence exercise) disapproval (by stating gious Primary Effect op silence shall be an that the of Lemon con prong The of second reflection). or portunity silent practice government’s whether the siders circuits decisions from our sister The of ad primary or effect principal has the Bown, Lemon, this conclusion.9 support religion. vancing inhibiting or Georgia’s mo- held that this Circuit 613, 91 Under Eleventh S.Ct. 2105. case law in that lacked Supreme did not ad- silence Court in Wallace 9. The prongs third Lem- purpose. the second and dress test, having the moment of on concluded (those by favoring religions some ment of silence law satisfied Lemon’s which merely the law re- prong prayer) second because silent over other reli- (those not). and “ex- quired Attorneys students to remain silent do gions which says quiet the moment of plicitly urge reject argu- General amici us re- is not to be conducted as a reflection reasoning ment because this would render Bown, 112 F.3d at ligious exercise.” unconstitutional the moment suggestion 1473. And there no thirty because, than laws more states pray “that should should not students nature, their moment silence laws will silently during quiet re- always preclude prayer. vocal Brown, Similarly, flection.” agree Attorneys We Koch and Fourth Circuit held second General amici: A moment law clearly Lemon was be- prong of satisfied does not violate the Establishment Clause facially cause statute was neutral by favoring religions. govern- some nonreligious “between religion ment favor “one over modes of and other introspection silent legitimate another without secular rea- Brown, activity.” 258 F.3d at 277. Fur- Miller, son.” Nelson ther, rejected plaintiffs argu- Brown (7th Cir.2009). case, In this to the extent ment “despite statute’s facial considering “favoring” it could be some neutrality between silent ex- religions by providing pression and nonreligious expres- is a valid there secular reason for not sion, ... the statute’s inevitable effect allowing vocal during that time— promote prayer by creating will be to Therefore, maintaining silence. perception, especially from the view- any particu- neither advances nor inhibits point young, impressionable religion lar violation Lemon’s second children, that the Commonwealth endors- prong. Brown, prayer.” es F.3d 277-78. court reasoned the context Our sister circuits have reached the “[i]n however, challenge, facial this fear same on conclusion this issue as well. For speculative Brown, Bown, instance, is at best----” 258 plaintiff argued that F.3d at 278. Brown Act, court conclud- “the by mandating a si- moment of that “speculative po- ed fears as to the lence, both advances and religion inhibits tential effects of this statute [on school by favoring silent discouraging cannot be used to strike children] down Bown, of prayer.” other forms a statute that on its face neutral be- is at 1472. The rejected Eleventh Circuit activity.” nonreligious tween argument stressing this Act man- “[t]he held likewise that the moment quiet reflection, Croft dates moment of not primary of silence law did not “have the moment of silent prayer.” Id. at 1472. advancing religion, effect of and so sur- The court then concluded “so long that prong.” vives the second Lemon 562 quiet the moment reflection exercise F.3d at 749. May, Even which held prescribed conducted in the manner by the Jersey’s New moment of un- silence law (i.e., quiet statute that the re- constitutional, that held the statute did flection is and is not silent conducted as primary not have the effect of advancing exercise),” the statute does not inhibiting or religion. May, 780 F.2d violate prong the second Lemon. 247-50. Bown, 112 F.3d Similarly, at 1473.

Alternatively, argues rejected Sherman that Sec- Fifth Circuit the argu- Croft 1 prong tion violates the second of Lemon ment that the moment of law dis-

519 tion.”); May, not 780 at 247 against religions (holding do F.2d criminates prayer, explaining stat- moment of silence statute did not an practice silent foster “provides for a minute of silence and entanglement religion, ute excessive with but non-disruptive activity.” allows affirming district court’s conclusion Croft, Requiring 562 at 750. F.3d was unconstitutional because the not discriminate students “be silent does finding district court’s factual that the law Thus, among religious sects.” Id. Section lacked a clearly was not the primary 1 does have effect of not erroneous). Wallace, 472 See also U.S. inhibiting advancing religion or violation 66, (Powell, J., concurring) 2479 105 S.Ct. prong. second Lemon’s (stating straight-forward the “effect of a moment-of-silence ... statute [would not] Religion Entanglement 3. With foster an excessive government entangle- prong Under the third Lem religion”). ment with test, on a “statute must not foster an entanglement excessive government Vagueness C. Lemon, religion.” 403 U.S. 91 Finally, Sherman asserts that prong S.Ct. 2105. This is not at issue here unconstitutionally Section 1 is vague in argue, did not nor because Sherman did of the Due violation Process Clause of the find, the district court that Section 1 fos Fourteenth Amendment because it does entanglement tered excessive with reli not specify how of silence will Books, 401 at 858 gion. See F.3d n. implemented penalties violations (“Books argued display not has of the statute. “The void for vagueness government excessively entangles with re on principle doctrine rests the basic of due inquiry third under ligion, the Lemon process that a law if is unconstitutional its Kurtzman, prohibitions clearly are defined.” Kar (1971), so we L.Ed.2d do not Foust, (7th lin v. F.3d Cir. issue.”). do we address that Nor believe 1999) (internal omitted). quotation argument that such an would succeed be Clause, Due does though, Process not de only period cause Section 1 mandates mand “perfect clarity precise guid silence and thus there is no need for Racism, ance.” Against Ward v. Rock schools, teachers, or students become 781, 794, L.Ed.2d entangled questions religion. Every (1989). Rather, un a statute circuit have has considered issue constitutionally vague “if it fails to define See Croft, reached a similar conclusion. the with that offense sufficient definiteness F.3d that “no (stating 562 at 750 court has ordinary people can what con understand a facial accepted especially ever on chal — prohibited duct is and it fails establish lenge a moment of silence statute is —that permit standards to in a non- enforcement government entanglement excessive with nondiscriminatory (“And arbitrary, manner.” Brown, religion”); 258 F.3d at 278 Fuller ex rel. Fuller v. Decatur Public prong the the State not be third —that Dist. School Bd. Sch. excessively entangled religion— come of Educ. (7th Cir.2001). However, Bown, “the satisfied.”); 666 undoubtedly 112 (“We degree vagueness the of that Constitution that F.3d 1474 conclude there is impor tolerates —as well the relative entanglement in this as no excessive case. enforcement— n tance fair notice fair requires that of All the Act the stu charge depends part on nature of the enact dents the teacher in remain quiet Village of ment.” Estates v. silent reflec- of Hoffman 520 Estates, Inc., dating a

Flipside, period 455 of silence to calm school U.S. Hoffman 489, 498, 71 L.Ed.2d day. 362 children before the start of their (1982). The Constitution tolerates lesser There is no pur- evidence the secular degree vagueness of in enactments “with pose is a sham and that Illinois’s true penalties rather than civil because criminal purpose prayer. was to And promote consequences imprecision are more impermissible there is nothing about clari- Karlin, F.3d 458. And severe.” fying may pray that students during that “[g]iven the school’s need to be able to period. time Section also does not ad- impose disciplinary for a sanctions wide (or religion specific vance or inhibit reli- range unanticipated disruptive conduct gions practice momentary pray- silent process, educational school disci- er), only but rather period mandates be plinary rules need not as detailed as a silence. There is also no state entangle- Fuller, criminal code.” 251 F.3d at 667 Therefore, religion. ment with Section Dist. No. (quoting Bethel Sch. Fra- IOS satisfies the Lemon test and Sherman’s ser, 675, 686, challenge First Amendment fails. Sher- (1986)). Moreover, L.Ed.2d a facial man’s vagueness challenge also fails be- vagueness question challenge is wheth- cause unconstitutionally Section 1 is not in all vague operations. er the statute is its vague in all operations. of its For these reasons, foregoing we Reverse

While does not define and Remand district in- court with length of the it is not judgment structions to enter in favor of unconstitutionally all vague applica its Koch.

tions, by as demonstrated District 214’s

proposed implementation of the statute. WILLIAMS, Judge, Circuit dissenting. a hearing injunction At preliminary I respectfully I dissent. would affirm stage, District 214 indicated it intend ruling district on court’s basis to implement by1 making ed the Silent Reflection and Prayer Student school-wide morning announcement: “We (the “Act”) Act violates the Establishment now will have a brief silence.” Clause of the First Amendment. Act Then, after passed, fifteen had seconds makes what I an unnecessary believe begin Pledge. announcer would A stu prayer, reference to signaling predomi- of ordinary intelligence dent clearly would nantly religious the statute. understand that to remain he is silent for And enumerating prayer as one of the fifteen seconds between the announce activities, two specific permissible the Act ment and the beginning of the Pledge. conveys a message that Illinois students given setting, And the school the Constitu should in prayer during the pre- tion does not a cornucopia mandate opposed scribed to a host additional details or statement other I options. have concluded that punishment face students will should purpose and effect of the to Act is disregard their teacher’s direction. Sher encourage schools, prayer public in which man, therefore, complain cannot of the violates the prongs first two of the Lemon vagueness every of the law in situation and Kurtzman, test. See v. Lemon 403 U.S. Due challenge her Process fails. 602, 612-13, 2105, 91 S.Ct. 29 L.Ed.2d 745 (1971).

III. Illinois had a secular The Act states that the mandatory peri- 1, purpose passing namely man- od of silence:

521 “shams,” [Sjhall it clear to a not be seems me that religious conducted as not be they for opportunity genuine, shall be an to whatever extent are exercise but reflection on secondary silent are to ones. I share prayer day. of the anticipated activities of legisla the concerns raised a number tors doubts about the expressed who their 105 ILCS 20/1. purpose amending true behind Act. As If all? the Act Why prayer at mention floor one House member stated purpose that truly is to achieve the meant I can debate, only see for “[t]he reason mandating a quiet, claim it sponsors its is— this silent is to requiring encour of beginning time at the each meditative public in the H.R. age prayer schools.” down to settle and day for students Assem., Proceedings, May 95th Ill. Gen. it learning why is neces- shift into mode— (statement Currie). 31, 2007, Rep. 64 recognize sary prayer? to I reference stated, representative And as another purpose government’s stated “[YJes, prayer, this doesn’t mandate deference.” but for a law is entitled to “some Doe, it .... Indep. Fe Sch. Dist. let’s face that’s what this about Santa 2266, 290, 308, 120 S.Ct. L.Ed.2d I U.S. calls received about this Bill [t]he duty to (2000), it is our ensure but also and people priests were who were rabbis “genuine, not purpose that the proffered and and who people reverends are inter sham, secondary a merely and having prayer public ested in in the objective.” McCreary County, Proceedings, schools.” H.R. 95th Ill. Gen. Civil Liberties Union Ky. v. American (statement Assem., at 90 Oct. 844, 864, 2722, 162 Ky., 545 125 S.Ct. U.S. Rep. I do Lang). not believe (2005). “particu- are L.Ed.2d 729 And we legislature truly adopted this law Illinois monitoring compliance larly vigilant purpose, and for that reason a secular with the Establishment Clause elemen- first prong violates the Lemon schools,” tary secondary because Lemon, test. S.Ct. authority great exerts and co- State “[t]he 315-16, 2105; Fe, Santa 530 U.S. at see also mandatory power through ercive attend- requirements, ance and because the stu- majority is no states there role dents’ emulation of teachers as models history legislative indicating it was peer susceptibility children’s Aguillard, goal pressure.” legislators Edwards v. introduce 514-15). 583-84, prayer (Op. into schools. (1987). L.Ed.2d 510 troubling I There are state- disagree. indicating religious ments in the record recognize we So while I assess part on the of some of the motivations legislature’s stated with some def Act’s chief supporters. sponsor, The bill’s erence, spade spade call a let’s —statutes Kimberly said this to Lightford, Senator about schools. like these are Assembly press: “Here the General view, legislature’s decision make my every day with a open we mandatory an effort to represents the Act Pledge get I Allegiance. don’t a choice Illinois religion into introduce why I about that. don’t see students schools, guise” the “hollow couched And when the bill should have a choice.” See Brown v. mandated silence. vote, (4th Cir.2001) some up legislators was first Gilmore, floor, song into on the House broke out J., dissenting). secular (King, While words to tune singing following state by might articulated purposes 522

Simon and Garfnnkel’s “Sounds of Si- “shall be considered as an opportunity for lence”: a moment of silent reflection on the antici pated activities of prayer, day”)

Hello school our old with 105 ILCS friend (period “shall be an opportunity you again It’s time to vote on 20/1 or for silent reflection on the warning our school house without anticipated day”) (empha activities of the morning. You seek a moment in the added). sis The Eleventh upheld Circuit are, I agree majority with the that there Georgia in statute Bown v. Gwinnett course, of secular purpose statements Dist., County 112 School F.3d 1469- legislative But I part ways record. (11th Cir.1997), 72 finding it had a valid my I colleagues simply have purpose secular and that it did convey not accepting trouble purposes any those as message of endorsement religion. It See, thing pretextual. more than e.g., May fair to assume that the drafters of the (3d Cooperman, 251 Cir. recent amendment to the Act were aware 1985) (affirming district court’s conclusion of statutes like Georgia’s. The fact that legislators’ purpose stated period they chose not to Georgia follow the model provide “to a transition from is revealing. life,” nonschool pretextu life to school al); Edwards, My colleagues correctly point see also 482 U.S. at out that (“The the Illinois plain just S.Ct. 2573 drafters were meaning likely of the stat aware ... of number of period- ute’s words can control other states’ the determina legislative tion of of-silence laws that purpose.”). do mention prayer. The Act’s 4). (Op. purported at 511 n. But goal establishing pe difference be- — every riod of tween statute majority silence to calm pre students and lists and pare Georgia them for statute day Georgia’s is that be achieved has —could post-Wallace before it was survived a mandatory made First 2007. If Amendment (who challenge Illinois’s a federal appeals. court of teachers are in So matter) legislators if the position really the best simply to assess the did intend to felt period students mandate a needed a silence for a for secular purposes, calming, might one transitional think that the morn when ing, they amending they have had the Act authority would have impose mod- Here, one eled it after a just they since 1969. as in could be confi- “[ajppellants dent was appropriately doing just have not identified secu that. lar County fully Allegheny was not v. American served Civil Union, Liberties [existing state law] before the U.S. 618 n. enactment (1989) [the statute in S.Ct. question].” L.Ed.2d 472 Wallace v. Jaffree, 38, 59, (availability of secular U.S. alternative is “obvi- (1985); ous Edwards, deciding L.Ed.2d 29 factor” govern- see also whether 587-88, 107 ment’s choice S.Ct. 2573. constitutes endorsement religion). If legislators truly wanted to mandate a meditative, calming period of silence for majority believes that the mention students, all had to do was model the of prayer in the Act is warranted to “ne- Act after Georgia’s period-of-silence stat- gate any impression” students have ute, § O.C.G.A. 20-2-1050. Georgia permitted, an impression nearly law is here, identical to the statute might come from the that says clause except that it does not refer to prayer. “shall not be conducted aas 20-2-1050(b) Compare § O.C.G.A. (period 515-16). (Op. exercise.” That if “entirely separate Sec- issue” than Section 1. might persuasive more argument 511-12). (unnec- only (Op. Act. But at Section 5 codifies part tion was add) clause, I essarily, might Act the First Amend- immediately following that right engage of students in “indi- say this: ment on to goes initiated, vidually prayer.” non-disruptive right prayer. In order that the Student what “silent prayer” Isn’t that under Sec- every student to exercise the free tion is? guaranteed public religion is within and that has the

schools each student question I to refer- While the decision subject pressure to not be freedom here, recog- in the Act I also prayer ence in or to from the State either to inserting the not auto- nize that term does on from observation refrain matically every period-of-silence render grounds, students See, e.g., unconstitutional. Wallace may voluntarily engage public schools 38, 2479, 76, Jaffree, v. 105 S.Ct. initiated, individually non-disruptive (1985)(O’Connor, J., L.Ed.2d 29 concur- that, the Free consistent with prayer (“A moment of ring) silence law is Clauses Exercise Establishment clearly implemented drafted so as to States and Illinois Constitu- the United meditation, permit prayer, and reflection tions, sponsored, promoted, not or prescribed period, without en- within any or manner the school endorsed others, one dorsing alternative over the employee. any school test.”). Post-Wallace, pass should two upheld of our sister circuits have indeed I difficulty with 105 ILCS have 20/5. directly statutes that ref- period-of-silence reading person, idea reasonable prayer as an v. option. erence (in, remember, a law called the the above Croft Texas, 562 F.3d 750-51 Governor Prayer Reflection and Student “Silent (5th Cir.2009); Brown, 258 F.3d at 282. Act”), away could come with even But the statutes cases differ from those not impression prayer might slightest way: they pro- Act here in a critical permissible activity be a prayer “catch-all” to the vide alternatives light In there is of silence. of Section Act, contrast, option. provides simply negative no about inference forced, binary choice two substan- between to be that needs rebutted. (2) (1) tively specific or pray; activities — majority 5 is claims that Section on the activities silently anticipated reflect 512-13). (Op. unrelated to Section 1. conveys day doing, so —and statute, look not interpreting But in we Illinois favors message state of specific statutory language to the these two activities over a host of other issue, design of language but to “the options. To extent that refer- Corp. as a K Mart v. the statute whole.” permissible period- in a ence to Inc., Cartier, 281, 291, 108 S.Ct. 486 U.S. statute, the Act here still fails of-silence (1988); 100 L.Ed.2d see also muster. See 472 U.S. pass Co., Inc., Alloyd v. Gustafson (O’Connor, J., concurring) 105 S.Ct. (1995) 131 L.Ed.2d (“The may clearly of [a] face statute ... (court’s statutes, duty is “to construe encourage establish seeks provisions.”); D. Co. and Square isolated voluntary other alter- promote prayer over C.I.R., 739, 745 Subsidiaries natives.”). Cir.2006). (7th directly Section 5 is thus Brown, rejected purpose of the Fourth understanding relevant to Circuit to a challenge address an Clause the Act. Nor does Section 5 an Establishment activity many during preferred non-religious of silence statute over Virginia period options. could “in the exercise of which a student meditate, choice, his or her individual majority with disagrees premise The the activi pray, any in other silent engage or binary that the Act a mandates either/or (emphasis § ty.” Ann. 22.1-203 Va.Code choice, per and instead concludes that it added). Assessing the of the language 517). “any (Op. at activity.” mits silent statute, Fourth Circuit noted the simply says. But that is not what the Act substan imposes state no the “[b]eeause statutory interpreta It rule primary is a during it is requirement

tive the give that we in a statute then- tion words Brown, 258 F.3d religiously not coercive.” ordinary meaning. plain and See Ind. noted with approval 281. The court Alliance, Serv., Inc. v. Forest Forest Virginia word “pray” fact that the (7th Cir.2003). 325 F.3d The coupled statute with “an unlimited very they say words in the Act are clear: activities that are author range of mental period mandatory, that the “shall”—a not minute of during ized silence.” Id. discretionary term, see Robinson Farms added). Act, in (emphasis 281-82 The con (7th D'Acquisto, Co. trast, impose require does substantive Cir.1992) (1) opportunity an silent —be are during ment silence—there (2) prayer or on the antici reflection choices, pray specific two or think about I, day. pated activities of the like the day’s coupling activities—instead of court, interpret language district as range with an prayer option unlimited limiting permissible choices to those permissible other activities. specific options. two the Fifth Croft, Phrasing “opportuni- And Circuit evaluated the two as choices challenge to Texas of silence law not If the Act ties” does matter. said that catch-all option. also had a be an non-prayer oppor- silence “shall tunity silently thinking 562 F.3d at 738-39. The Texas statute about Shake- provided for a “each or speare which for silent reflection on the antici- chooses, may, student as the pated day,” anyone student re- activities of the could flect, meditate, seriously pray, engage argue Act was not ex- activity.” preference other silent Tex. Educ.Code pressing part on the 25.082(d) added). (emphasis The Fifth Illinois public State of that its school stu- approval Circuit with fact that noted dents these two activities over “clearly Calling options state[s] Texas statute “opportu- others? the two ‘any children ac- pursue nothing change other silent nities” does the fact that tivity’ during the moment of ‘Not they being expressly highlighted silence. are and Brown, praying’ by is thus covered catchall endorsed. See 258 F.3d at 290 (“I J., provision.” F.3d at (emphasis (King, dissenting) am not comforted omitted). original, court ... citation statute’s allowance ‘choice.’ Croft also noted that the Texas is “facial- Simply because the Commonwealth does ly require neutral between non-reli- explicitly and not its school stu- gious Again, pray activities.” Id. stark this is dents to does not mean that are so.”). Act being contrast to the here. Act here is subtly not coerced to do facially why neutral between Again, example list as because, non-religious professed activities. It all? The answer specifically sec- (at highlights prayer permissible as one of two ular least goals notwithstanding two of choices, doing actually in so supporters elevates the Act’s claimed that of school perception bullying lessen might prayer, of student was a con- endorsement shootings), the true and school violation.”). promote this one is to stitutional statutes such J., (King, n. 3 id. at 284 prayer. majority further concludes that objective observer” (“any dissenting) interpret be “unreasonable” to would purpose” of that “the real recognize should limiting prayer the choices to statute as at issue is endorse Virginia statute reflection, possi- because teachers cannot schools); see also prayer ment bly thinking. (Op. what a student is know Kiracofe, “Pretending Rienstra Christine 517). I there are obvious agree at Pray?: A Historical Overview Not To Act, enforcement of the but problems with Why Legislation and of Silence Moment implementation do not questions about Clearly the Lem Violated Illinois’ Statute says. what the statute Realistical- change (2009) Test,” Rep. Law. on Ed. (and I ly agree enforceable or not with the argued state of Illinois (“Although the compliance court’s conclusion that district did, fact, pur a secular have [the Act] require the Act will teachers spon the bill and its history pose, students), options two explain the otherwise.”).1 suggest sors seemed to Act, face, expresses preference on its statements from majority quotes specific as one of two activities that they in indicating that legislators some the state of Illinois wants schoolchildren to “any a time for to be tended in, all This is imper- over others. 516-17). at But thought.” (Op. Fe, missible. See Santa U.S. fly directly the face such statements 2266. says, and it is unambiguously the Act

what creating quiet is a “line between There that control. See the words of the statute which those so inclined during DirecTV, Barczewski, 604 F.3d Inc. v. affirmatively endorsing the may pray, and Cir.2010) (7th (“Legislative his religious practice prayer. particular necessary play only into when tory comes one, prece- be a fine but our This line enactment.”). If ambiguous to decode liberty principles dents range of Illinois wanted the it.” require that we draw broader, to be it cer permissible options (O’Connor, J., vocabulary to have tainly possessed the by referencing I concurring). believe place It is not our expressed that. unnecessarily, by making it one something it say the statute to rewrite specific permitted activities two says says. Act what it And does not. The period, the Act falls on the reading alternative ad even under of this line. I would affirm the wrong side majority' the choices vanced —that Act ruling court’s that the as writ- district examples simply nonlimiting are —isn’t the Establishment Clause. ten violates preference expressing Act at least still activities? See San for those enumerated Fe, 120 S.Ct. 2266

ta

(“[T]he policy, of this simple enactment man- changed of silence back from noting that while this case It also worth bill, court, datory optional. HB Another pending the district Illinois before similarly the word removed modify the Act would have made efforts to lawmakers title, bill, and would have “prayer” from the Act’s through legislation. One HB additional pray- reference to silent changed removed Section l’s have the name of would Kiracofe at 15. Both bills failed. See Reflection Act” and er. the "Student Silent Act to

Case Details

Case Name: Sherman Ex Rel. Sherman v. Koch

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 15, 2010

Citation: 623 F.3d 501

Docket Number: 09-1455

Court Abbreviation: 7th Cir.