Last week, the 7th Circuit overturned a ruling that the Illinois "Moment of Silence" law was an unconstitutional violation of church-state separation. The Appeals Court disagreed, emphasizing their view that the legislative record indicates a secular intent, and that including an explicit option for prayer not constitutionally problematic. Maybe surprisingly, the court seems to indicate that leaving the prayer option is in fact a requirement. From the decision in Sherman v. Koch (my emphasis):
[W]e find nothing wrong with Illinois’s… legislature informing teachers and students alike that students may pray during the period of silence, given that the statutory language does not indicate any preference for prayer over silent reflection. In fact, listing prayer as a permissible option makes eminent sense in this case, given that Section 1 expressly states that the period of silence “shall not be used as a religious exercise.” As Koch explained, it was important to note that prayer is a permissible option to negate any impression that teachers or students may have that students were not allowed to pray (silently) during the period of silence. And deleting prayer from Section 1—after it had been part of that statute for nearly forty years—could actually evidence a hostility to religion which is itself unconstitutional.
