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High court refuses to review Virginia moment-of-silence law

By First Amendment Center Online staff,
The Associated Press

Operating away from its headquarters for the first time in six decades, the Supreme Court yesterday refused to hear appeals in several First Amendment-related cases.

The justices:

  • Turned away a challenge to a Virginia law requiring schoolchildren to observe a daily minute of silence.

  • Refused to revive an Indianapolis law requiring parental consent for children to play violent arcade games.

  • Refused to review Louisiana Supreme Court rules barring law school students from volunteering on some cases.

  • Turned away appeals from both sides in a dispute over whether a Florida man was wrongly fired after giving Bibles to and praying with co-workers.
Brown v. Gilmore
Conducting business in a borrowed federal courtroom because of the spreading anthrax scare, the Supreme Court yesterday declined to take a closer look at the silent prayer issue it last examined 16 years ago.

Opponents say Virginia’s minute-of-silence law flies in the face of previous high court rulings on separation of church and state. Supporters say children are not forced to pray — they can stare out the window if they choose.

The court’s action means the state’s morning minute of silence will remain in force, and opponents have no immediate avenue to challenge it.

Virginia Attorney General Randolph A. Beales said the court action vindicated the state.

“It guarantees Virginia’s schoolchildren will continue to have a minute each day to reflect on their studies, to collect their thoughts or, if they so choose, to bow their heads and pray.”

The justices did not comment in leaving the Virginia law intact. Their action was not a ruling on the merits of the law or of the church-state challenge mounted by the American Civil Liberties Union, but did indicate the case could not muster the minimum four justices needed to hear an appeal.

The Supreme Court struck down a similar Alabama law in 1985 in Wallace v. Jaffree, saying the law encouraged students to pray. The question for the court this time was whether the Virginia law is truly evenhanded — neither encouraging nor discouraging prayer.

“The word ‘prayer’ is something that just ticks off a lot of people, but not to include prayer would be discriminatory against it,” said Virginia state Sen. Warren Barry, who sponsored the 2000 law.

The law makes the minute of silence mandatory for Virginia’s 1 million public school pupils and specifically lists prayer as one silent activity they might choose.

The law’s preamble states its purpose as assuring that “free exercise of religion be guaranteed within the schools.”

The ACLU sued on behalf of seven students and their families, arguing that the law cannot be reconciled with the court’s 1985 ruling.

“Although the statute permits students to engage in other forms of silent or meditative activity during the time period set aside in the classroom, the statute was enacted specifically to facilitate and encourage school prayer at that fixed time,” the ACLU wrote.

The 4th U.S. Circuit Court of Appeals ruled 2-1 in July that the law is constitutional. “Because the state imposes no substantive requirement during the silence, it is not religiously coercive,” the majority ruled.

The First Amendment guarantees both that government will not promote or establish religion, and that Americans may exercise their chosen religion freely. In practice, that has meant shifting standards for what is allowed in public places such as schools.

The justices banned organized prayer during class hours in the 1960s and classroom display of the Ten Commandments in 1980. In the past decade, the court has banned clergy-led prayer at high school graduation ceremonies and student-led prayer over school public address systems at football games.

The high court has never said a truly neutral moment-of-silence law runs afoul of the constitutional separation of church and state. A handful of states have laws, similar to Virginia’s, that both require the silent period and specifically mention prayer as one option.

Many more states have laws that leave it up to school districts to observe silent periods if they choose. Some of those laws specifically link silence to prayer, but most do not.

Virginia’s law replaced one in force since 1976, which left the decision to school districts.

Kendrick v. American Amusement Machine Association
The justices yesterday ended the city of Indianapolis’ push for a ban on violent arcade games, ensuring that kids will maintain their constitutional right to decapitate, murder and maim video game monsters.

The city had appealed a lower court’s ruling that the law was an unconstitutional damper on free speech. The Supreme Court rejected that appeal without comment.

The ordinance — believed to be the first of its kind — barred people under the age of 18 from such games unless accompanied by a parent or guardian. It also required that coin-operated games featuring graphic violence or strong sexual content have warning labels and be kept at least 10 feet from any nonviolent game machines.

Steve Campbell, spokesman for Indianapolis Mayor Bart Peterson, said the city would not pursue any other legal avenues.

“We are disappointed, of course, that the court declined to hear our case,” Campbell said. “We still think it’s a good law.”

The City-County Council passed the ordinance last year, and it was to go into effect last September. But the American Amusement Machine Association and the Amusement and Music Operators Association, along with a group of Indiana distributors and operators, filed a lawsuit against the city.

They argued that the ordinance’s restriction on games with “graphic violence” was a content-based restriction on speech, in violation of the First Amendment. They also contended that the ordinance was unconstitutionally vague.

Writing for the 7th Circuit, Judge Richard Posner chided the city for going after only games, noting that other media can depict violence.

“Violent video games played in public places are a tiny fraction of the media violence to which modern American children are exposed,” he wrote. “Tiny — and judging from the record of this case not very violent compared to what is available to children on television and in movie theaters today.”

Campbell said the mayor was pleased that the case drew attention to the issue of violent video games.

Peterson announced yesterday that the city would compile a list of “red-sticker” video games, an advisory system created by the industry to flag violent games. Licensed arcades in Indianapolis will then be asked — though not required — to supply a list of the red-sticker games in their establishment.

This information will be made available to the public via the city’s Web site — — by phone, mail or e-mail.

“The mayor has said all along that he would always try to educate parents about violent video games, and he won’t stop that now,” Campbell said.

Southern Christian Leadership Conference v. Louisiana Supreme Court
The high court yesterday declined to review an appeal from environmental organizations, civil groups, law school students and professors in Louisiana that had filed suit after the state Supreme Court restricted the use of students to handle cases for indigent community groups.

The restrictions were imposed after business leaders and Gov. Mike Foster protested Tulane Environmental Law Clinic lawsuits aimed at industries, particularly a plan by Shintech Inc. to build a $700 million plastics plant in St. James Parish.

Shintech later switched the project, with a scaled-down budget, to a site near Plaquemine.

The Tulane clinic itself was not a party to the suit challenging the restrictive rules.

A panel of the 5th Circuit upheld the restrictions, saying the state Supreme Court does not have to allow unlicensed students to practice law and that the court’s motivation in changing the rules was irrelevant.

The 5th Circuit also upheld a new rule that banned law school clinics from representing anyone who had been solicited by the clinic or one of its students.

Student lawyers are allowed to appear in state courts — with supervising attorneys — on behalf of indigent individuals and poor community organizations.

The state court set income limits for individuals and members of community groups seeking free legal help, which the challengers — including the Southern Christian Leadership Conference — said disqualified working-class people from being eligible for assistance. The suit also claimed the solicitation ban violated First Amendment freedoms of speech and association.

Lawyers for the state court said the new rules did not stop “any licensed lawyer, whether or not associated with a law school clinic, from representing any person or entity or providing outreach or information.”

The current director of the Tulane clinic said the organization could live with the rules.

But an attorney who filed the suit said the case “was about political pressure on the Louisiana Supreme Court and the Louisiana Supreme Court’s vulnerability to that pressure.”

“Those basic facts were troubling on Day One, and they are troubling today,” said David Udell, director of the poverty program at the Brennan Center for Justice in New York. “Poor communities in Louisiana still virtually have nowhere to obtain justice.”

Adam Babich, who became director of the Tulane clinic after the suit was filed, said student lawyers had been working under the revised standard since 1999 and “we find it a workable rule.” Babich said the case was never about who could be represented — only who could be represented by student lawyers.

Weiss v. REN Laboratories of Florida and REN Laboratories v. Weiss
A Florida man fired after giving Bibles to co-workers and praying with them lost his religious-harassment case before the Supreme Court yesterday, but the justices denied his former employer’s request to block a trial on the termination.

Conservative groups wanted the court to use the case to provide guidelines for workplace witnessing. The court declined, without comment.

Kenneth Weiss offered a Bible to a Muslim co-worker at a medical lab in Fort Lauderdale and called a lesbian colleague’s attention to Scripture that describes homosexuality as “vile” and “unseemly.” The born-again Christian also “laid hands” on ill co-workers and prayed over a malfunctioning machine.

An appeals court said the behavior was not prudent, but determined that a jury should decide if he was guilty of harassing colleagues and deserved to be fired.

Weiss claims he was the one being harassed, for practicing his religion. He sued under Title VII of the 1964 Civil Rights Act, which bans on-the-job discrimination because of someone’s religion, gender or race.

The act “was intended to protect religious expression in the workplace, not stifle it,” Weiss told the Supreme Court. He said the 11th Circuit’s ruling “leaves religious employees with little choice but to completely refrain from offering religious literature to others in the workplace, for fear of being terminated for harassment.”

Neither Weiss nor his employer, REN Laboratories of Florida Inc., was satisfied with the appeals court ruling. The Supreme Court turned back appeals from both, which sends the case back to Florida for a trial.

Weiss was hired in 1992 as a medical technician at a Fort Lauderdale lab and promoted to night shift supervisor later that year. He was fired in 1993 after talking to a new employee about the importance of attending church.

He is described as a mild-mannered worker who openly discussed his faith. Weiss said he did not intentionally offend anyone.

The appeals court said he should have known that a Muslim would not want a copy of the Bible and that it was not prudent to initiate prayer sessions at work with colleagues.

He had been reprimanded for other things, including making a mistake that produced a false result on an AIDS test.

Lawyers for REN Laboratories told the Supreme Court that the company had the “legal duty to keep its workplace free of religious harassment.” His behavior put the company “in a position of possibly losing employees to resignation or, worse, being sued by employees for tolerating a religiously hostile work environment,” the attorneys said.

A Florida jury determined that he was wrongly terminated, but the judge in the case threw out the verdict. The appeals court ordered a second trial in the case.

Weiss asked the Supreme Court to clarify “where protected religious observance and practice leave off and unprotected harassment begins.” He was represented by the Rutherford Institute, a Virginia-based conservative group that defends claims of religious discrimination

His suit claims that federal law protects religious expressions and that the appeals court decision “effectively chills innocuous religious speech and conduct in the workplace.”


Federal appeals panel: Indianapolis video-game law can't be enforced

Judges overturn lower court ruling, grant arcade industry’s request for preliminary injunction. 03.26.01

Federal appeals panel upholds Louisiana law-clinic restrictions
Judges reject claim that regulations imposed by state’s highest court violate free speech, association. 05.30.01

Rehnquist rejects call to halt Virginia's minute-of-silence law
Supreme Court could still decide to hear ACLU’s appeal of 4th Circuit decision. 09.13.01

Restricting student prayer could cost schools federal funds
Congressional panel approves measure as part of education bill, ratifies proposal requiring schools to give same access to Boy Scouts as to other groups. 10.31.01

Ohio lawmakers pass moment-of-silence bill
Governor says he will sign measure allowing schools to set aside daily time for silent prayer or reflection. 04.24.02

States debate moment of silence for public schools
Gov. Bob Taft signs Ohio bill that allows one minute daily for students to reflect, meditate or pray. 05.03.02

Oklahoma students start school year with moment of silence
New law requires public schools to set aside 60 seconds for silent reflection each day. 08.19.02

Returning Virginia students greeted by 'In God We Trust'
New law requires posters of national motto to be prominently displayed in public schools. 09.05.02

Congressman pushes national 'moment of silence' in schools
Measure would require all public schools in the United States to begin each day with one minute of 'quiet reflection.' 03.12.03

Students sue Iowa district over moment of silence
Seven seniors ask federal judge to prevent school from denying them moment of quiet reflection during graduation ceremony. 05.16.03

Ill. governor rejects requiring moment of silence in schools
But measure passed by large enough majorities in House, Senate to override veto. 08.29.07

Ill. legislators override veto, require moment of silence in schools
Critics call new law, which takes effect immediately, an attempt to promote organized school prayer. 10.12.07

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