Could Maryland have required every public school student to pray, read the Bible, or meditate each morning?

Plain-English summary

A state senator asked the Attorney General to review the constitutionality of Senate Bill 2, which would have amended §7-104 of the Education Article. The existing law let, but did not require, principals and teachers to hold a roughly one-minute period of silent meditation during which a student or teacher could pray or read scripture. Senate Bill 2 would have made the opening exercise mandatory for every student, removed the word "silent," and required each student, with no option to be excused, to affirmatively choose one of three activities: prayer, reading the Holy Scripture, or meditation. The opinion concluded this amended version would violate the Establishment Clause. It applied the U.S. Supreme Court's three-part test for a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive government entanglement with religion, and found Senate Bill 2 failed all three: its only apparent purpose was to bring prayer and Bible reading back into schools, its effect would inevitably be to promote prayer and Bible reading as "essentially religious exercises" while also favoring Judeo-Christian scripture over other faiths' holy books, and requiring teachers to supervise which of the three choices each student made would draw the State into exactly the kind of ongoing religious oversight the Establishment Clause forbids. The opinion distinguished the bill from the existing, unamended §7-104, which it found constitutionally permissible because it merely accommodated students' free exercise rights without compelling any student to make a religious choice.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion relied on a body of early-1980s federal case law on school prayer and moments of silence, including a recent U.S. Supreme Court affirmance in Karen B. v. Treen. Establishment Clause doctrine governing moments of silence and school prayer has continued to develop in the decades since, including further U.S. Supreme Court decisions issued after this opinion and not discussed in it. Verify current First Amendment case law and the current text of the Education Article before relying on any specific description of what a public school may or may not require regarding prayer, scripture reading, or meditation.

Common questions

Could a Maryland public school require every student to pray, read the Bible, or meditate each morning in 1982?
No, according to this opinion. It concluded that Senate Bill 2's requirement that every student affirmatively choose one of the three activities during a mandatory opening exercise, with no option to be excused, would have violated the Establishment Clause.

Was Maryland's existing moment-of-silence law also unconstitutional?
No, the opinion found. It concluded that the existing §7-104, which let, but did not require, a brief period of silent meditation during which a student or teacher could optionally pray or read scripture, was constitutionally permissible because it merely accommodated students' free exercise rights without compelling anyone to make a religious choice.

Why did the opinion say requiring students to choose among prayer, scripture reading, and meditation was different from just allowing a moment of silence?
The opinion explained that making the choice mandatory, rather than optional, meant the state was affirmatively requiring students to engage in what the U.S. Supreme Court had already recognized as inherently religious activities, which the opinion found had no plausible secular purpose distinct from promoting prayer and Bible reading.

Did it matter that Senate Bill 2 gave students a choice among three options instead of mandating one specific prayer?
No, according to the opinion. It found that offering a choice within an "institutionally coercive" school setting did not eliminate the Establishment Clause problem, since the bill would still result in the advancement of religious practices and would require teachers to supervise and verify which choice each student made.

Background and statutory framework

The opinion applied the U.S. Supreme Court's Establishment Clause precedents on prayer in public schools, particularly Engel v. Vitale, which struck down a brief, nondenominational prayer recited at the start of the school day even though it was voluntary, and School District of Abington Township v. Schempp, which struck down mandatory daily Bible readings and recitation of the Lord's Prayer as part of the school curriculum. It then surveyed a cluster of early-1980s federal appellate decisions striking down various prayer and moment-of-silence arrangements, including Brandon v. Board of Education of Guilderland Central School District and Collins v. Chandler United School District, and gave particular weight to Karen B. v. Treen, a Fifth Circuit decision the U.S. Supreme Court had just affirmed, striking down a similar Louisiana statute permitting a moment of silence during which a teacher could invite student prayer. Contrasting this line of cases with Gaines v. Anderson, which had upheld a moment-of-silence statute that, like Maryland's existing §7-104, contained no command that students actually meditate or pray, the opinion concluded that the key constitutional distinction was between a genuinely optional accommodation of individual religious practice and an affirmative requirement that every student choose a religious or quasi-religious activity.

Applying the purpose, effect, and entanglement analysis, the opinion found Senate Bill 2 had no apparent secular purpose, citing a contemporary newspaper account describing the bill's purpose as bringing "prayer and the Bible back into the school system," and noted the bill would also delete the word "silent" from the statute, opening the door to audible prayer or scripture reading that would plainly violate Engel and Abington on their own terms. On effect, the opinion found the bill's reference specifically to "the Holy Scripture," without mentioning the sacred texts of other religious traditions, would have the effect of favoring faiths with a Judeo-Christian heritage, and that even a hypothetical amendment covering all religions' holy books would not cure the basic problem that the exercise itself was "sectarian in character." On entanglement, the opinion concluded that requiring teachers to supervise and confirm each student's choice among prayer, scripture reading, or meditation, potentially including questions about which versions of which holy books to make available, would create exactly the kind of ongoing government involvement in religious practice the Establishment Clause's entanglement prong was designed to prevent.

Citations

Statutes:

• §7-104 of the Education Article of the Maryland Code (daily period of silent meditation, both as it existed and as Senate Bill 2 proposed to amend it)
• Senate Bill 2 (1982 Maryland General Assembly, the bill reviewed by this opinion)

Cases:

• Widmar v. Vincent, 454 U.S. 263, 271 (1981)
• Stone v. Graham, 449 U.S. 39, 40 (1980)
• Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)
• Engel v. Vitale, 370 U.S. 421 (1962)
• School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963)
• Brandon v. Board of Education of Guilderland Central School District, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981)
• Collins v. Chandler United School District, 644 F.2d 759 (9th Cir. 1981), cert. denied, 454 U.S. 863 (1981)
• Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd, 455 U.S. 913 (1982)
• Gaines v. Anderson, 421 F. Supp. 337, 342 (D. Mass. 1976)
• McCollum v. Board of Education, 333 U.S. 203, 227 (1948)
• Committee for Public Education v. Nyquist, 413 U.S. 756, 821 (1973)
• Zorach v. Clauson, 343 U.S. 306, 313 (1952)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment—Establishment Clause—Requiring Public Elementary School Students to Participate in Period of Prayer, Bible Reading, or Meditation Would Violate Establishment Clause

March 12, 1982

The Honorable Howard A. Denis
Senate of Maryland

You have requested our opinion on the constitutionality of Senate Bill 2 (Public Schools—Mandatory Prayer, Meditation, or Holy Scripture Reading), which proposes to amend §7-104 of the Education Article of the Maryland Code, pertaining to a daily period of silent meditation in the school system.

Presently, §7-104 reads as follows:

"§7-104. Daily period of silent meditation. (a) Principals and teachers in each public elementary and secondary school in this State may require all students to be present and participate in opening exercises on each morning of a school day and to meditate silently for approximately 1 minute. (b) During this period, a student or teacher may read the holy scripture or pray."

If Senate Bill 2 were to pass in its present form, it would amend this section to read:

"§7-104. Daily period of silent meditation. (a) Principals and teachers in each public elementary and secondary school in this State shall require all students to be present and participate in opening exercises on each morning of a school day. (b) During this period, each of the students shall participate in one of the following: (1) Prayer; (2) Reading of the Holy Scripture; or (3) Meditation."

In effect, the amendments would remove the discretion afforded teachers and principals under §7-104 and would require a morning "opening exercise" during which each student, without an opportunity to be excused, must choose to pray, read the Bible, or meditate.

For the reasons given below, it is our opinion that if §7-104 were altered in this way, it would be unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

I
The Establishment Clause

The Establishment Clause prohibits Congress and the states from enacting any law "respecting an establishment of religion".1

In order not to contravene the mandates of the Establishment Clause, a statute must satisfy three principles: (1) It must have a secular purpose; (2) It must have a principal or primary effect that neither advances nor inhibits religion; and (3) It must not foster an excessive government entanglement with religion. See, e.g., Widmar v. Vincent, 454 U.S. 263, 271 (1981); Stone v. Graham, 449 U.S. 39, 40 (1980). If any of these three principles are violated by a statute, it will be struck down as being unconstitutional. Id.2

1 The Establishment Clause has been made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

2 On three recent occasions, we have examined the history and interpretation of the Establishment Clause. See 67 Opinions of the Attorney General 26 (1982) (statute requiring "balanced" presentation of "creation-science" and "evolution-science" would violate Establishment Clause); 65 Opinions of the Attorney General 186 (1980) (distributing Gideon Bibles to public elementary school students violates the Establishment Clause); 64 Opinions of the Attorney General 134 (1979) (teaching ethical values in the public schools is constitutionally permissible).

II
Relevant Decisions

A. The Supreme Court

The Supreme Court has twice discussed at length the role of prayer and Bible reading in public schools.

In Engel v. Vitale, 370 U.S. 421 (1962), the State of New York had adopted a program by which a brief, denominationally neutral prayer was to be said aloud by each class in the presence of a teacher at the beginning of each school day. Justice Black, speaking for the Court, concluded that there could be "no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regent's prayer". 370 U.S. at 430. It was irrelevant that the prayer was nondenominational or that the program did not require all pupils to recite the prayer but permitted those who wished to remain silent or be excused from the room to do so. "Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause". Id.

One year later, in School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963), the Supreme Court held that state laws requiring schools to begin each day with readings from the Bible and a recitation of the Lord's Prayer were violative of the Establishment Clause. The Court found that these exercises were part of the prescribed curricular activities of students who were required by law to attend school. Further, the exercises were held in school buildings under the supervision and with the participation of teachers employed in those schools. These circumstances, as well as "the religious character of the exercises", were sufficient to find such practices to be unconstitutional. 374 U.S. at 223. In so finding, the Court commented:

"The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality." 374 U.S. at 226.

B. Other Cases

Notwithstanding the principles set forth by the Supreme Court in these cases, efforts to have some type of prayer or scripture readings in the public schools have continued. Indeed, three very recent cases dealing with prayer are highly pertinent to the present inquiry.

In Brandon v. Board of Education of Guilderland Central School District, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981), a student group, "Students for Voluntary Prayer", had initiated action against public school authorities because of their refusal to allow communal prayer meetings in school immediately before school commenced. The students argued that, by not permitting communal prayer meetings prior to school, their rights to free exercise of religion were infringed. The Second Circuit disagreed and found that, if such prayer meetings were to be permitted, there would be an Establishment Clause violation. The Court stated:

"Our nation's elementary and secondary schools play a unique role in transmitting basic and fundamental values to our youth. To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic interference is too dangerous to permit." 635 F.2d at 978.

The Ninth Circuit, in Collins v. Chandler United School District, 644 F.2d 759 (9th Cir. 1981), cert. denied, 454 U.S. 863 (1981), relied in good part on the Brandon decision in refusing to sanction a student council's recitation of prayers and Bible verses of its choosing at exercises held prior to school assemblies. The students had emphasized that participation in these sessions was voluntary and that a student who wished to be could be excused. Nevertheless, the Court found that the selection amounted to a choice between listening to prayer or foregoing the opportunity to attend a major school function. It stated: "It is difficult to conceive how this choice would not coerce a student wishing to be part of the social mainstream and, thus, advance one group's religious beliefs." 644 F.2d at 762.

In Brandon and Collins, the Supreme Court denied certiorari, thus leaving these decisions intact. However, the Court unanimously affirmed the Fifth Circuit's decision in Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd, 455 U.S. 913 (1982), which struck down a Louisiana statute and regulation permitting students and teachers who so desired to observe a period of silent meditation, during which teachers could ask whether any student wished to offer a prayer and, if no student volunteered, the teacher could pray. The statute limited any prayer offered to no longer than five minutes and provided that no student or teacher could be compelled to pray. The Fifth Circuit found the statute inconsistent with the Establishment Clause because it promoted prayer, an inherently religious practice: "Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise." 653 F.2d at 901.

As we indicate in the more detailed analysis that follows, we believe the principles discussed in these cases compel a finding that the amendments to §7-104 proposed by Senate Bill 2 are unconstitutional.

III
Purpose of Bill

The stated purpose of Senate Bill 2 is to require public school students "to participate in either prayer, meditation, or the reading of the Holy Scripture during a certain school period".

At the outset, we note that current case law suggests no constitutional problem posed by a period of silent meditation, as now permitted under §7-104. As Justice Brennan has written:

"It has not been shown that readings from the speeches and messages of great Americans, for example, or from the documents of our heritage of liberty, daily recitation of the Pledge of Allegiance, or even the observation of a moment of reverent silence at the opening of class, may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government." Abington School Dist. v. Schempp, 374 U.S. at 281 (emphasis added).

The act of meditating does not necessarily have to be a religious exercise and may connote "serious reflection or contemplation on a subject which may be religious, irreligious, or nonreligious". Gaines v. Anderson, 421 F. Supp. 337, 342 (D. Mass. 1976). Thus, a state statute mandating a period of silence "is not per se an invalid exercise of legislative power". Id.3

Nor is a statute that, like present §7-104, permits a required meditation period during which a student or teacher may silently pray or read the Holy Scripture necessarily invalid. As previously observed, §7-104(b) "reflects nothing more than a concern that no student or teacher, by virtue of this statute, be denied the free exercise of his or her religion". Letter of Advice (Senate Bill 1) from George A. Nilson, Deputy Attorney General, to James Clark, Jr., President of the Senate (February 7, 1977).4

However, Senate Bill 2 would not merely accommodate a student's constitutional right under the Free Exercise Clause; rather, by mandating that all students must affirmatively

3 The Court in Gaines v. Anderson upheld a statute that the Court construed as providing, in a manner similar to present §7-104, for a period of silence during which one could meditate or pray. That statute, like present §7-104, mandated a moment of silence; but, unlike Senate Bill 2, "there [was] no command that [the students either] meditate or pray". 421 F. Supp. at 344.

4 The February 7, 1977 advice was a legislative letter, which is customarily concerned with the facial constitutionality of a bill and thus does not ordinarily focus on motivation or application of the legislation. It concluded that the existing meditation law could be constitutionally amended to require principals and teachers to require students to participate in silent meditation. That letter, however, did not speak to a proposal as broad as that contemplated by Senate Bill 2 and, moreover, was written before the Supreme Court's decision in Treen and its denial of certiorari in Brandon and Collins.

make a conscious and deliberate choice as to whether or not to pray or read the Holy Scriptures, it would encroach on the separation between church and State required by the Establishment Clause. Thus, in our opinion, the proposed provision for a "compulsory choice" could only have as its primary purpose the promotion of prayer and Bible reading, essentially religious exercises, in the public schools. It is significant that there is no stated or apparent secular purpose for the proposed changes. Indeed, one publicized discussion of the bill indicates that its purpose is to bring prayer and the Bible back into the school system. Baltimore Evening Sun, Feb. 10, 1982, at F3.

In this regard, we also note that Senate Bill 2 would delete the present reference in §7-104(a) to "silent" meditation, suggesting that the required prayer or Bible reading could be done aloud. It is beyond dispute that any such open expression of religious views or practices would be unconstitutional under Engel and Abington. However, as discussed more fully below, even an amendment to the bill that would limit its scope to "silent" prayer or Bible reading would not cure the constitutional infirmities of the bill.

In Stone v. Graham, 449 U.S. 39 (1980), the Supreme Court declared unconstitutional the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each classroom in the state. The Court reasoned that, despite an avowed secular purpose by school authorities for the posting of the Commandments, it was "undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact". 449 U.S. at 41. Thus, the Court found that the "purpose" test for constitutionality under the Establishment Clause was not met, and the statute was stricken. Of special relevance to this inquiry, the Court observed that it did not matter that the Bible verses were "merely posted on the wall, rather than read aloud as in Schempp and Engel, for 'it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment'". 449 U.S. at 42.

Similarly, in the Treen case, the Fifth Circuit, affirmed by the Supreme Court, pointed out that the plain language of the Louisiana statute "makes apparent their predominantly religious purpose". Karen B. v. Treen, 653 F.2d at 901. It found that, since prayer was a "primary religious activity in itself, its observance in public school classrooms has, if anything, a more obviously religious purpose than merely displaying a copy of a religious text in the classroom". Id.

In this instance, we believe there can be no other purpose for Senate Bill 2 than to encourage two unquestionably religious activities, prayer and Bible reading. Thus, the bill must fail under the "purpose" test alone.

IV
Effect of Bill

There is a long history of efforts to place Bible reading and daily prayer in the public schools, efforts that have been marked by debate, criticism, and proscription by courts and legislative councils. Abington, 374 U.S. at 267. Although legislators and educators have indicated that such practices serve certain secular aims (teaching the principles of virtue, morality, and patriotism), there is no doubt that their origins were "unambiguously religious, even where the educator's aim was not to win adherents to a particular creed or faith". Abington, 374 U.S. at 271. Indeed, there can be no question that both prayer and Bible reading "have always been designed to be, and have been regarded as, essentially religious exercises". Abington, 374 U.S. at 278. Therefore, in light of the fact that Senate Bill 2 would affirmatively require students to choose either to pray, read the scriptures, or meditate, we think it inevitable that it will have the effect of promoting inherently religious practices.

Additionally, we note that the bill would permit the reading of "the Holy Scripture" as an alternative choice, but makes no reference to holy books of other religions.5 It would, therefore, have the effect of showing preference for those religions with a Judeo-Christian heritage over others with different holy books, e.g., Confucianism, Islam, Hinduism. Even if the statute would permit the reading of these other holy books, however, there would still remain the basic flaw that "the subject matter of the exercise is sectarian in character". Abington, 374 U.S. at 283. Consequently, the bill fails the second prong of the test because the neutrality and separatism required by the Establishment Clause "is a requirement to abstain from fusing

5 See note 6 below and accompanying text.

functions of Government and of religious sects, not merely to treat them all equally". McCollum v. Board of Education, 333 U.S. 203, 227 (1948).

Finally, the "choice" presented to students under Senate Bill 2 in the "institutionally coercive" setting of the public schools may not be a wholly free one:

"That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children." McCollum, 333 U.S. at 227 (Frankfurter, J., concurring).

Thus, Senate Bill 2 can reasonably be expected to result in the advancement of religious beliefs. Id. It is no response that students may voluntarily choose to meditate rather than pray; nor would the bill's infirmity be corrected if students were permitted to leave the room during the required opening exercises. Unlike an alleged violation under the Free Exercise Clause of the First Amendment, it is not necessary under the Establishment Clause to show the coercive effect of an enactment in order to find a violation. Abington, 374 U.S. at 223; Engel, 370 U.S. at 430.

V
Entanglement

In addition to failing the "purpose" and "effect" tests, we believe that Senate Bill 2 will inevitably result in inappropriate governmental involvement in religious affairs.

The required opening exercises are held in school buildings under the supervision and with the participation of school teachers after the normal school day has begun. Even if the statute were interpreted as requiring private, silent prayer or Bible reading (although Senate Bill 2 would eliminate the "silent" prerequisite of §7-104(a)), teachers would still have an obligation to supervise the implementation of the program to make sure each student chooses one of the three alternatives and does so voluntarily.

Serious questions of administration could arise. Will teachers have to ask each student to publicly tell them if they have prayed, meditated, or read the Holy Scriptures? Will school authorities have to make available one or more versions of the "Holy Scriptures"? Will State funds be used for these purchases? Will holy books of all faiths be represented?6

It seems clear that "the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglement between church and state". Lemon v. Kurtzman, 403 U.S. 602, 620-21 (1971); Treen, 653 F.2d at 902.

VI
Conclusion

In the words of Justice White, there is no "litmus-paper test" to distinguish the permissible from the impermissible under the Establishment Clause. Such cases are not easy, and they stir deep feelings. Committee for Public Education v. Nyquist, 413 U.S. 756, 821 (1973). It is essential to American public education that students be permitted to be schooled "in an atmosphere free of parochial, divisive, or separatist influences of any sort, an atmosphere in which children may assimilate a heritage common to all American groups and religions". Abington, 374 U.S. at 242. Matters of personal

6 As we have stated before: "[School authorities] would have to accommodate the several versions of the Bible accepted by Roman Catholics (the Douay-Rheims, the New American Bible, A New Translation from the Latin Vulgate, the Jerusalem Bible); Eastern Orthodox (the Revised Standard Version); Protestants (the King James Bible and its revisions, such as the English Revised Version, the American Revised Version, the Revised Standard Version, and the New English Bible); and Jews (the Torah, in numerous translations). See L. Rosten, Religions of America 353 (1975). Assistance in the distribution of the holy books of other religions could not be denied; these would include copies of the Vedas (Hinduism), the Koji-ki and Nihon-gi (Shinto), the Avesta (Zoroastrianism, Parsi Religion), the Tao-teh-king (Taoism), the Angas (Jainism), the Tripitaka (Buddhism), the Classics (Confucianism), the Koran (Islam), and the Granth (Sikhism). See R. Hume, The World's Living Religions 2 (1959)." 65 Opinions of the Attorney General 186, 195 (1980).

conscience, whether or how one prays, reads the Bible, or meditates, should not be open to public scrutiny or public mandate.

"The heart of the matter," as we have recently had occasion to point out, "is the simple proposition that 'both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere'. McCollum, 333 U.S. at 212. Because we are 'a religious people', Zorach, 343 U.S. at 313, this notion of neutrality is sometimes difficult to accept. But when we remember that many of our forebears came to these shores to escape religious persecution at the hands of hostile government, and that we are today a nation of over two hundred million citizens of diverse, frequently conflicting religious faiths, we can begin to understand that the common bond that unites us all is the agreement that government should be neutral in matters of religion. The price of religious liberty, in short, is official neutrality." 65 Opinions of the Attorney General 186, 196-97 (1980).

Stephen H. Sachs, Attorney General
Ellen M. Heller, Assistant Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark
Principal Counsel, Opinions and Advice