Freedom Writer - September 1995

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Legal update

By Barbara A. Simon, Esq.

U.S. District Court upholds Georgia "moment of silence" law

Last fall we reported on the case of Brian Bown, a Georgia teacher 
dismissed from South Gwinnett High School last September after refusing 
to lead his class in a moment of silence. On July 31, 1995, Judge 
Frank Mays Hull of the Federal District Court (11th Federal Judicial 
Circuit) upheld Georgia's law requiring a minute of silent meditation 
at the start of each school day. 

During a February 1995 hearing on the case, Steve Leibel, attorney 
for Bown, argued that the moment of silence was intended to promote 
religion in violation of the Constitution. At that hearing, Leibel 
asserted that the Georgia legislators' remarks during the 1994 debate 
over the proposed legislation showed that the legislation was intended 
to promote religion. Leibel intends to appeal Judge Hull's decision.

In _Wallace_v._Jaffree_, a 1985 moment of silence case out of Alabama, 
the Supreme Court struck down that moment of silence law because Alabama 
failed to present evidence of any secular purpose for the legislation. 
In order to withstand constitutional scrutiny, Establishment Clause 
jurisprudence requires that statutory schemes have at least one legitimate 
secular purpose. The legislative record supported Jaffree's assertion 
that the purpose of the legislation was "to return voluntary prayer 
in our public schools".  Leibel will likely rely upon _Wallace_v._
Jaffree_ in pursuing his appeal to the U.S. Court of Appeals for the 
11th Circuit.

Supreme Court approves religious activities by an arm of the state

Within the First Amendment there are often tensions between its clauses. 
Does the right of free speech override the state's compelling interest 
in maintaining separation of church and state?  In a controversial 
June 29, 1995, 5-4 decision, the Court held in _Rosenberger_v._University_
of_Virginia_  that a state university's refusal to fund the printing 
of  students' religious newspaper (1) violated the First Amendment's 
free speech guarantee; and (2) was not excused by the state's need 
to comply with the First Amendment's establishment of religion clause. 


Although the University of Virginia would not permit religious organizations 
to have the status of "Contracted Independent Organization," the University 
permitted a student organization, which published a newspaper, whose 
stated mission was "to challenge Christians to live, in word and deed, 
according to the faith they proclaim and to encourage students to 
consider what a personal relationship with Jesus Christ means," to 
have the status of "Contracted Independent Organization." The organization 
requested the student activities fund to make payments to an off-campus 
printer for the costs of printing its newspaper. The university's 
student council denied the request on the ground that the newspaper 
was a religious activity. The denial was sustained by the university's 
student activities committee. The organization and some of its members 
filed suit in the United States District Court for the Western District 
of  Virginia. The suit alleged that the university's denial violated 
the organization's free speech and press and free exercise of religion 
guarantees of the Federal Constitution's First Amendment. Both the 
District Court and the United States Court of Appeals for the Fourth 
Circuit found for the university.  The Supreme Court reversed.

The majority opinion by Justice Kennedy, joined by Chief Justice Rehnquist 
and Justices O'Connor, Scalia and Thomas, held that (1) the university's 
denial of payment to the printer constituted viewpoint discrimination, 
which denied the organization its First Amendment right of free speech 
and that (2) the university's free speech violation was not excused 
by the necessity of complying with the establishment of religion clause.

One vote shy of a majority were the four dissenters, with an opinion 
penned by Justice Souter and joined by Justices Stevens, Ginsburg 
and Breyer. They expressed the view that (1) the Supreme Court was, 
for the first time, approving direct religious activities by an arm 
of the state; (2) direct funding of the newspaper would support religious 
evangelism in violation of the establishment of religion clause; and 
(3) there was no viewpoint discrimination in the application of the 
university's guidelines to deny funding to the newspaper.

Justice Souter concluded the opinion with an admonition: "Since I 
cannot see the future I cannot tell whether today's decision portends 
much more than making a shambles our of student activity fees in public 
colleges. Still, my apprehension is whetted by Chief Justice Burger's 
warning in _Lemon_v._Kurtzman_ (403 US 602, 624, 29 L Ed 2d 745, 91 
S Ct 2105 (1971): 'in constitutional adjudication some steps, which 
when taken were thought to approach 'the verge,' have become the platform 
for yet further steps. A certain momentum develops in constitutional 
theory and it can be a 'downhill thrust' easily set in motion but 
difficult to retard or stop.'" 


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