ALAN J. KARCHER, ET AL., APPELLANTS V. JEFFREY MAY, ET AL.

   No. 85-1551

   In the Supreme Court of the United States

   October Term, 1986

   On Appeal From The United States Court Of Appeals For The Third
Circuit

   Brief For The United States As Amicus Curiae

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
       I. Appellants lack standing to maintain this appeal
      II. The New Jersey statute does not violate the
          Establishment Clause
          A. The New Jersey statute has a valid primary purpose
          B. The statute does not have the impermissible effect of
             advancing or inhibiting religion, or of creating an
             entanglement between church and state
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether appellants have standing to invoke this Court's
appellate jurisdiction.

   2. Whether a state statute that provides for a moment of silence in
public school classrooms "to be used solely at the discretion of the
individual student * * * for quiet and private contemplation or
introspection" (N.J. Stat. Ann. Section 18A:36-4 (West. Supp. 1986))
violates the Establishment Clause of the First Amendment.

                     Interest Of The United States

   This case concerns the constitutionality, under the Establishment
Clause of the First Amendment, of a New Jersey statute that authorizes
a moment of silence in public schools to enable students to engage in
private contemplation or introspection.  The United States is
authorized to operate schools for military and foreign service
dependents under certain circumstances.  See 10 U.S.C. 7204 (Navy);
20 U.S.C. 241 (federal property);  20 U.S.C. 926 (Department of
Defense);  22 U.S.C. 2701 (foreign service);  25 U.S.C. 271-304b
(schools for Indians).  The resolution of this case will bear on
Congress's authority to allou periods for voluntary silent prayer or
meditation in such schools.  The United States also has a more general
interest in the extent to which the Constitution permits government to
adopt neutral and noncoercive accommodations to private religious
practices.  /1/

                               Statement

   1. In December 1982, the New Jersey legislature enacted a statute
providing for a moment of silence at the opening of the day in each of
the State's public schools.  The statute (N.J. Stat. Ann. Section
18A:36-4 (West Supp. 1986)) states:

      Principals and teachers in each public elementary and secondary
      school of each school district in this State shall permit
      students to observe a 1 minute period of silence to be used
      solely at the discretion of the individual student, before the
      opening exercises of each school day for quiet and private
      contemplation or introspection.

The statute became effective on December 17, 1982 (J.S. App. 4a, 65a).

   On January 10, 1983, appellees -- a New Jersey public school
teacher, several public school students, and parents of public school
students -- commenced this action under 42 U.S.C. 1983 in the United
States District Court for the District of New Jersey, alleging that
the statute is unconstitutional on its face and as applied, and
seeking an injunction against its implementation.  The complaint named
as defendants the State Commissioner of Education, the Edison Township
Board of Education, and the Old Bridge Township Board of Education.
J.S. App. 4a, 65a.

   On January 18, 1983, the district court allowed intervention as
defendants by "Alan J. Karcher in his representative capacity as
Speaker of the New Jersey General Assembly, the New Jersey General
Assembly, Carmen A. Orechio in his representative capacity as
President of the New Jersey Senate and the New Jersey Senate" (Mot. to
Dis. App. 22a).  The original defendants took no active role in
defending the statute;  "the intervening defendants vigorously
contested the action both during pretrial discovery proceedings, and
at the trial itself." J.S. App. 66a;  see also id. at 6a.

   Following trial, the district court entered a declaratory judgment
stating that the New Jersey statute violated the Establishment Clause
of the First Amendment (J.S. App. 62a-102a).  It concluded from the
evidence adduced at trial (id. at 66a-85a) that the purpose of the
statute "was to mandate a period at the start of each school day when
all students would have an opportunity to engage in prayer" (id. at
86a).  It found that the statute was promoted by persons favoring an
opportunity for prayer in school, and that the statute was opposed by
those who perceived the moment of silence as "an enforced religious
observance" (id. at 87a).  The court rejected the contention that the
statute's purpose was "to provide a transition from non-school life to
school work" (ibid.).

   Applying the test set forth by this Court in Lemon v. Kurtzman, 403
U.S. 602 (1971), the district court stated that a statute is valid
under the Establishment Clause if it has a secular legislative
purpose, its principal or primary effect neither advances nor inhibits
religion, and it does not foster an excessive government entaglement
with religion (J.S. App. 89a-90a).  Looking to the actions of prior
New Jersey legislatures in attempting to "reintroduce a mandatory time
for prayer in the public schools;  the debate upon the (statute) which
was in terms of public prayer and State involvement in religion;
(and) the time and manner in which the minute of silence was mandated,
following the form and posture of school prayer which was outlawed in
the early 1960's" (id. at 90a), the court found that the statute had a
religious purpose.

   The court also concluded that the statute "both advances and
inhibits religion" (J.S. App. 94a).  Religion would be inhibited,
according to the district court, because some persons believe that
"mandated prayer is no longer prayer," but is "drained of its
substance, loses its power and becomes but an empty shell" (id. at
95a).  In addition, those whose prayers "require movement and sound"
would be prevented from engaging in their form of prayer (id. at 96a).
 Finally, the court stated that the statute requires persons "who
profess no religion" to "assume a posture suggestive of particular
forms of prayer" or "face public opprobrium or ridicule by asking to
be excused each day" (id. at 97a).

   The district court also concluded that the statute "fosters an
excessive government entanglement with religion" (J.S. App. 98a).  It
found that the statute "would not involve the State in the kind of
continued and pervasive monitoring of sectarian activities" condemned
by this Court in Lemon v. Kurtzman, supra, but that the statute would
"tend to promote divisiveness among and between religious groups,
another form of entanglement" (J.S. App. 98a).  /2/

   2. The court of appeals affirmed by a divided vote (J.S. App.
1a-61a).  It rejected the district court's construction of the statute
as "direct(ing) that all pupils be required to engage in a silent
moment" (id. at 9a (footnote omitted)), holding that such
participation is "permissive only" (id. at 15a), and that students
need only "refrain from interrupting the observance" (see id. at
21a-22a).  The court of appeals also rejected the district court's
conclusion that the statute would foster an excessive entanglement
between government and religion by promoting divisiveness among
religious groups.  Observing that "any accommodation made by
government to the free exercise of religion by believers is
politically divisive in the sense that it offends those who believe
that such accommodation is an unwarranted toleration," the court
concluded that political divisiveness is not the test for finding an
impermissible entanglement between government and religion (J.S. App.
17a).  If the possibility of divisiveness alone were sufficient, the
court noted, "no governmental accommodation of religion would survive
establishment clause scrutiny" (ibid.).

   The court of appeals next held that the statute did no;  have the
effect of advancing or inhibiting religion.  It found irrelevant the
district court's observation that the statute does not accommodate the
religious beliefs of persons whose prayer must be oral or otherwise
self-expressive, noting that "(i)t is * * * the compulsory school
attendance law, not N.J.S.A. 18A:36-4, that 'prevents other persons
from engaging in their kind of prayer'" (J.S. App. 19a).  The court
held that the restriction upon the oral or self-expressive activities
of students not wishing to participate was "valid as a legitimate
time, place, and manner regulation" (id. at 22a).  /3/ It found that
the state had not improperly advanced religion by setting aside a
specific time for permissive silent prayer:  "if accommodation to the
preference of those who wish to pray silently is to be made at all,
the state must be free to designate when, during the school day, such
accommodation shall take place" (ibid.).

   Finally, the court of appeals considered whether the legislature
acted with a permissible purpose when it enacted the moment of silence
statute.  Analyzing this Court's decision in Wallace v. Jaffree, 472
U.S. 38 (1985), the court of appeals concluded that "in the abstract a
statute such as N.J.S.A. 18A:36-4 would not * * * be deemed invalid
under the purpose leg of Lemon v. Kurtzman" (J.S. App. 26a).  It
noted, however, that the district court had found that the legislature
acted with a religious purpose.  Applying the clearly erroneous
standard to that finding (see Fed. R. Civ. P. 52(a)), the court of
appeals upheld the district court's rejection of "the legislators'
tendered secular purpose -- to provide a transition from nonschool to
school life" (J.S. App. 27a).  It emphasized that "a finding that the
religious purpose was to encourage prayer over other alternatives,
rather than to accommodate those wishing to pray would (not) be
sustainable" (id. at 29a).

   The court concluded that the question before it was whether the
state may "take action in the school setting that, while not endorsing
prayer in preference to other forms of silent activity, provides for a
minute of silence for the purpose of permitting prayer by those who
want to pray" (J.S. App. 29a).  Stating that this Court has required a
"secular purpose" to sustain statutes against an Establishment Clause
challenge and that the district court had found no such purpose
underlying the New Jersey statute, the court of appeals declared the
statute to be unconstitutional (id. at 29a-30a).

   Judge Becker dissented (J.S. App. 31a-60a).  He stated that "a
permissive, facially neutral statute such as the New Jersey moment of
silence law, which has no impermissible effects and fosters an (sic)
impermissible entanglement, carries with it a strong presumption of
constitutionality which only the clearest proof of an absence of
secular purpose can vitiate" (id. at 43a).  Relying upon this Court's
decision in Bose Corp. v. Consumers Union, 466 U.S. 485 (1984), Judge
Becker concluded that the district court's finding of a religious
purpose was subject to plenary review (J.S. App. 43a-47a).

   Judge Becker carefully analyzed the evidence in the record and
concluded that the evidence was not sufficient, "separately or
cumulatively, to prove an absence of any secular purpose behind the
statute." He found the evidence equivocal at best, and noted that "the
single unambiguous piece of evidence -- the face of the statute itself
-- attests to the secular motives of the legislators," and in that
regard was supported by parts of the testimony of the witnesses who
attended the legislative hearings (J.S. App. 58a).  /4/

   3. The court of appeals' judgment was entered on December 24, 1985
(J.S. App. 104a-105a).  On January 14, 1986, appellant Karcher was
replaced as Speaker of the New Jersey General Assembly by Charles
Hardwick;  appellant Orechio was replaced as President of the New
Jersey Senate by John Russo on the same date (Mot. to Dis. ii).  In
March 1986, appellants filed a notice of appeal to this Court and a
jurisdictional statement.  One month later, the incumbent Speaker of
the New Jersey General Assembly and President of the New Jersey Senate
directed appellants' counsel to withdraw the appeal to this Court
(Mot. to Dis. App. 4a-5a).  Appellant Karcher responded to those
directives by informing his counsel that "(t)he legislative action in
question was the product of the 200th Legislature and specifically was
a bill which had the General Assembly as its house of origin.  The
200th Legislature has an independent legal existence separate and
apart from the 202nd Legislature and it is in fact that legislative
body which is your client" (id. at 6a).

                          Summary Of Argument

   I. This appeal should be dismissed for want of jurisdiction because
appellant Alan J. Karcher -- the only appellant pursuing this appeal
-- lacks standing to invoke this Court's appellate jurisdiction.
Karcher intervened in this case in his official capacity as Speaker of
the New Jersey General Assembly.  Shortly after the court of appeals
rendered its decision in this case, Karcher was replaced as Speaker by
Charles Hardwick;  by operation of Rule 43(c)(1) of the Federal Rules
of Appellate Procedure, Hardwick was "automatically substituted as a
party" for Karcher.  Hardwick has requested that the appeal to this
Court be withdrawn.  Because Karcher is no longer a party to this
case, he has no standing to pursue the appeal.

   II. If the Court reaches the merits, it should hold that the New
Jersey statute does not violate the Establishment Clause.  The statute
is plainly supported by an appropriate legislative purpose under this
Court's decision in Lemon v. Kurtzman, 403 U.S. 602 (1971).  The
statute simply permits a minute of silence for "quiet and private
contemplation or introspection" (N.J. Stat. Ann. Section 18A:36-4
(West Supp. 1986)).  We find two permissible purposes based upon the
language of the statute.  First, the statute by its terms provides an
opportunity for reflection before beginning the work of the day.
Second, the statute serves the additional purpose of accommodating the
religious needs of students by providing an opportunity for silent
prayer.  A majority of the Court indicated in Wallace v. Jafree, 472
U.S. 38 (1985), that a moment of silence statute could be upheld
against an Establishment Clause challenge, and the New Jersey statute
satisfies the standard set forth in that decision.

                               Argument

          I. Appellants Lack Standing To Maintain This Appeal

   Article III of the Constitution limits the "judicial power" of the
United States to the resolution of "cases" and "controversies." In
order to ensure the presence of a case or controversy, Article III
requires, "at an irreducible minimum, (that) the party who invokes the
court's authority * * * 'show that he personally has suffered some
actual or threatened injury as a result of the putatively illegal
conduct of the defendant,' and that the injury 'fairly can be traced
to the challenged action' and 'is likely to be redressed by a
favorable decision.'" Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982);  see also Diamond v. Charles, No. 84-1379 (Apr. 30, 1986),
slip op. 6-7;  Bender v. Williamsport Area School Dist., No. 84-773
(Mar. 25, 1986), slip op. 6-8.

   This Court has made clear that a party seeking to invoke a federal
court's appellate jurisdiction, no less than a plaintiff seeking to
invoke the jurisdiction of a federal district court, must satisfy this
standing requirement imposed by Article III.  See Diamond v. Charles,
supra;  Bender v. Williamsport Area School Dist., supra.  In our view,
appellant Karcher lacks standing to invoke this Court's appellate
jurisdiction, and the appeal should therefore be dismissed for want of
jurisdiction.  /5/

   1. An action against a government officer in his official capacity
"generally represent(s) only another way of pleading an action against
an entity of which an officer is an agent" (Monell v. New York City
Dep't of Social Services, 436 U.S. 658, 690 n.55 (1978)).  "As long as
the government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.  It is not a suit against the
official personally, for the real party in interest is the entity."
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (emphasis in original;
citation omitted);  see also Brandon v. Holt, 469 U.S. 464, 471-473
(1985).

   The district court permitted appellant Karcher to intervene as a
defendant in this action "in his representative capacity as Speaker of
the New Jersey General Assembly" (Mot. to Dis. App. 22a).  The
colloquy at the hearing at which the intervention motion was granted
makes clear that Karcher intervened not as an individual, but solely
in his official capacity as Speaker in order to represent the General
Assembly (id. at 15a, 16a, 21a).  /6/ Because he intervened in this
action as Speaker of the New Jersey General Assembly, and he no longer
holds that office, Karcher is no longer a party to this litigation.

   Rule 43(c)(1) of the Federal Rules of Appellate Procedure states
that "(w)hen a public officer is a party to an appeal or other
proceeding in the court of appeals in an official capacity and during
its pendency dies, resigns, or otherwise ceases to hold office, * * *
(his) successor is automatically substituted as a party.  * * * An
order of substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution." The Rules of
this Court and the Federal Rules of Civil Procedure each contain an
essentially identical provision.  See Sup. Ct. R. 40.3;  Fed. R. Civ.
P. 25(d)(1).  On January 14, 1986, Charles Hardwick replaced Karcher
as Speaker of the General Assembly;  by operation of this rule of
procedure Speaker Hardwick automatically was substituted for Karcher
as the official-capacity party in this litigation.  See Kentucky v.
Graham, 473 U.S. at 166 n.11;  Brandon v. Holt, 469 U.S. at 470-471.
Karcher is not now a party to this action and, therefore, has no
status that would entitle him to invoke the appellate jurisdiction of
this Court.  Cf. Davis v. Preston, 280 U.S. 406, 407 (1930) (citation
omitted) (where a state supreme court had entered judgment against a
federal officer in his official capacity, and the federal officer had
been replaced by a successor, the former officer "was not then in a
position to complain of the judgment or to invoke a review of it by
this Court.  All right and discretion to do either had passed to his
successor in office").  /7/

   2. Karcher may assert that he has standing to appeal in his
capacity as an individual state legislator.  As a threshold matter,
Karcher intervened in this action in his official capacity as Speaker
of the New Jersey General Assembly in order to represent the General
Assembly as a whole;  he did not intervene as an individual legislator
(see Mot. to Dis. App. 14a-16a, 22a).  He may not participate in these
proceedings in the latter capacity without first filing "an
appropriate motion or pleading setting forth the claim or defense that
he desires to assert" (Bender v. Williamsport Area School Dist., slip
op. 13 (footnote omitted)).  Even if Karcher were properly before this
Court in his capacity as an individual state legislator, moreover, he
would have no standing to pursue this appeal.

   In Diamond v. Charles, supra, the Court observed that "a State has
standing to defend the constitutionality of its statute" (slip op. 7).
 A state generally asserts this interest through the actions of its
Attorney General.  See 28 U.S.C. 2403;  Sup. Ct. R. 28.4(b), (c);
N.J. Stat. Ann. Sections 52:17A-4, 52:17B-2 to 17B-5 (West Supp.
1986).  Subject to any constraints imposed by Article III and state
law, a state may confer this interest upon other government officials
or otherwise provide for its assertion in a judicial proceeding.  See,
e.g., N.J. Stat. Ann. Section 2A:  1-10 (Uest Supp. 1986) (authorizing
the state supreme court to "appoint counsel specially to represent any
party or interest as may be deemed necessary" in an action involving
the constitutionality of a statute providing for the expenditure of
public funds by the state or a state instrumentality).  We have not
discovered any New Jersey statute conferring upon individual state
legislators the right to assert the State's interest in defending the
constitutionality of its statutes.  In the absence of such a statutory
right, Karcher cannot rely upon that interest to justify his
invocation of this Court's jurisdiction.

   Karcher may assert that he has standing because the decisions below
invalidating the moment of silence statute "nullified" his vote in
favor of the statute.  To the extent such an interest is cognizable
under Article III, we submit that it is an interest that may only be
asserted by the New Jersey Legislature as a whole, acting through its
authorized representatives.  In Diamond v. Charles, supra, the Court
observed that "'the power to create and enforce a legal code, both
civil and criminal' is one of the quintessential functions of a State.
 Because the State has (a) * * * 'direct stake' * * * in defending the
standards embodied in that code" (slip op. 10 (citations omitted)).
The power to enact a law belongs to the legislature as a whole, not to
an individual legislator.  Cf. United States v. Ballin, 144 U.S. 1, 7
(1892);  Field v. Clark, 143 U.S. 649, 672 (1892).  An individual
legislator therefore has no judicially cognizable interest in
defending the constitutionality of a statute.  Cf. Bender v.
Williamsport Area School Dist., slip op. 9.  This clear rule avoids
enmeshing the judiciary in intrusive and essentially political
inquiries into whether a particular member is faithfully advancing the
considered views of the legislature.  Cf. Goldwater v. Carter, 444
U.S. 996, 997-998 (1979) (Powell, J., concurring).  /8/

   Finally, Karcher does not have standing to pursue this appeal in
his personal capacity.  He did not seek leave in the district court to
intervene in that capacity and, in any event, nothing in the record
indicates that he suffered any personal injury as a result of the
decisions below.  Bender v. Williamsport Area School Dist., slip op.
12-13;  see also Diamond v. Charles, slip op. 12.  Because Karcher
lacks standing to invoke this Court's appellate jurisdiction, the
appeal should be dismissed for want of jurisdiction.  /9/

 II. The New Jersey Statute Does Not Violate The Establishment Clause

   In Wallace v. Jafree, 472 U.S. 38 (1985), a majority of the Court
indicated that a statute providing for a moment of silence at the
beginning of the school day, to be used by each individual student as
he or she sees fit, would not violate the Establishment Clause.  472
U.S. at 62-63 & n.2 (Powell, J., concurring);  id. at 70-76 (O'Connor,
J., concurring in the judgment);  id. at 85-90 (Burger, C.J.,
dissenting);  id. at 90-91 (White, J., dissenting);  id. at 113-114
(Rhenquist, J., dissenting);  see also id. at 59 (distinguishing
"(t)he legislative intent to return prayer to the public schools" from
"merely protecting every student's right to engage in voluntary prayer
during an appropriate moment of silence during the schoolday");
Abington School Dist. v. Schempp, 374 U.S. 203, 281 (1963) (Brennan,
J., concurring).

   The Court in Jafree (472 U.S. at 55-56) evaluated an Establishment
Clause challenge to a moment of silence statute by applying the
three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613
(1971) (citations omitted):  "First, the statute must have a secular
legislative purpose;  second, its principal or primary effect must be
one that neither advances nor inhibits religion;  finally, the statute
must not foster 'an excessive government entanglement with religion.'"
The New Jersey statute satisfies each of these requirements.

         A. The New Jersey Statute Has A Valid Primary Purpose

   We take as our starting point in ascertaining legislative purpose
the words chosen by the legislature when it wrote the statute.  On
that basis we find two permissible purposes for the facially neutral
New Jersey moment of silence law.  /10/

   1. The courts below were no doubt correct that the purpose of a
"moment of silence" statute has something to do with prayer.  And we
shall argue that to the extent the statute is intended to accommodate
some students' desire to pray, such accommodation of religion is, by
this Court's teaching, a valid purpose (see pages 18-23, infra).  But
silence also gives an occasion for reflection upon what we are about
and the larger purposes of our efforts.  It is the condition for
recollection and contemplation.  It is a mark of seriousness and
solemnity.  /11/ The New Jersey statute's requirement of a one-minute
period of silence, without any suggestion that the time be used for
prayer, by its terms provides this opportunity for unrestricted and
uninterrupted reflection.  /12/

   Since the purpose of this legislation was, most obviously and most
importantly, to institute by this facially neutral statute a period
for "quiet and private contemplation or introspection," the
legislation itself is the primary and best evidence of its purpose.
Only the most unusual circumstances should suffice to move the
analysis of purpose beyond that which plausibly appears from the words
which the legislature chose, in a direction which contradicts the
law's seemingly permissible objective.  Such an approach is consistent
with this Court's "reluctance to attribute unconstitutional motives to
States, particularly when a plausible secular purpose for the State's
program may be discovered from the face of the statute" (Mueller v.
Allen, 463 U.S. 388, 394-395 (1983)).

   Prayer plainly fits into this purpose to provide a moment for
serious reflection and recollection.  Indeed prayer is a special case,
a focused variety of reflection and meditation.  When religious
persons look into themselves for a moment to consider what they are
about to do and why, that reflection often takes the form of prayer;
they share their quietest and most serious thoughts with the diety.
Others may turn to different sources of duty or dedication.  Cf.
United States v. Seeger, 380 U.S. 163, 176 (1965).  So when this Court
begins its sessions with a spoken invocation, it might -- to the same
effect for some, but with broader meaning for others as well -- begin
with a moment of silence, in which we all reflect on our relation to
the serious work about to begin.  The several legislatures enacting
moment of silence statutes like the present one have quite obviously
considered it appropriate to preface the business of learning with
such a brief retreat into quiet and reflection.  For this reason we
think this and other statutes like it are at their core quite properly
general, secular and therefore unobjectionable.  /13/

   Hesitation in accepting this conclusion may derive from two
sources.  First, prayer is often a formalized, traditional and in some
communities the dominant form which reflection and meditation take.
To the extent that "we are a religious people" (Zorach v. Clauson, 343
U.S. 306, 313 (1952)), this is hardly surprising.  Second, the
historical origin of a desire to have such a moment of silence is
undoubtedly religious in inspiration.  That too, given our history, is
not surprising.  It is instead one of many examples in which purposes
and values, religious in their origin, have become generalized beyond
those particularistic origins to serve the pluralistic and secular
society we have become.  As Justice Frankfurter observed in McGowan v.
Maryland, 366 U.S. 420, 477 (1961) (footnotes omitted) (concurring
opinion):

      whatever the nature of the propulsions underlying state-enforced
      Sunday labor stoppage during the() centuries before the
      twentieth, it is clear that its effect was the creation of an
      institution of Sunday as a day apart.  The origins of the
      institution were religious, certainly, but through
      long-established usage it had become a part of the life of the
      English people.  It was a day of rest not merely in a physical,
      hygienic sense, but in the sense of a recurrent time in the
      cycle of human activity when the rhythms of existence changed, a
      day of particular associations which came to have their own
      autonomous value for life.

Thus, it surely is not a vice of moment of silence statutes that their
origin may be rooted in religion, or that some, perhaps many, will put
the occasion offered to specifically religious purposes.

   It is in this larger, more common-sense context that the New Jersey
statute's purpose and effect of accommodating religion must be placed.
 Moment-of-silence statutes do accommodate the desire of some students
to dedicate themselves to God at the beginning of the school day as at
the commencement of any serious enterprise.  Silence is a fostering
condition for prayer, and other occasions for it -- in the hallway or
cafeteria -- may not be as good.  And, of course, this Court has made
clear that accommodation, even if it stands as a sole purpose and
effect of legislation, is not for that reason deprived of the
designation of secular legislation.  See pages 18-23, infra.

   But the purpose to accommodate does not stand alone in this
legislation, any more than that purpose stands alone in statutes
exempting from taxation nonprofit educational, cultural and religious
institutions.  The generalized purpose of such statutes is to assist
institutions which foster the culture and values of the people, a
project in which churches at periods in history have often played a
dominant, perhaps a unique role.  From the churches' point of view, as
from the point of view of some legislators, such statutes are
certainly an accommodation, but this should not preclude seeing them
in their larger, generalized context.  Thus, though we believe this
statute is valid as an accommodation of religion pure and simple, as a
religious exemption at issue in Corporation of the Presiding Bishop of
The Church of Jesus Christ of Latter Day Saints v. Amos, No. 86-179,
is an accommodation of religion pure and simple, we suggest also that
the Court not look at this statute just as accommodation pure and
simple, but also in terms of the larger purpose and effect apparent
from its language.

   2. Even if the statute is viewed solely as an accommodation of
students who wish to engage in silent, voluntary prayer, that purpose
does not violate the Establishment Clause.  This Court has recognized
that our national traditions encourage government to act in a manner
that enhances an individual's ability to observe his faith.  See,
e.g., Lynch v. Donnelly, 465 U.S. 668, 677-678 (1984) (citations
omitted);  Zorach v. Clauson, 343 U.S. 306, 313 (1952);  McConnell,
Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 14-24.  It has
observed that "the Constitution * * * affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids
hostility toward any." Lynch v. Donnelly, 465 U.S. at 673;  see also
Wallace v. Jaffree, 472 U.S. at 81-83 (O'Connor, J., concurring in the
judgment);  Thomas v. Review Board, 450 U.S. 707, 726-727 (1981)
(Rhenquist, J., dissenting).  "(T)he interrelationship of the Religion
Clauses has permitted government to take religion into account * * *
to create without state involvement an atmosphere in which voluntary
religious exercise may flourise." McDaniel v. Paty, 435 U.S. 618,
638-639 (1978) (Brennan, J., concurring) (footnotes omitted).

   Applying this principle, the Court repeatedly has approved actions
by government to ease burdens on voluntary religious observance caused
by facially neutral governmental policies and practices.  /14/ While
it serves the broader purpose discussed above, a moment of silence is
also an example of such a permissible accommodation of religion.
Through it the State -- without itself sponsoring or endorsing
religion -- provides an opportunity for purely voluntary private
devotion in the context of a structured, compulsory state institution
in which such opportunities would otherwise be nonexistent or
extremely limited.  /15/

   The constitutionality of a statute providing for a moment of
silence is most powerfully supported by this Court's holding in Zorach
v. Clauson, 343 U.S. 306 (1952).  There, the Court upheld a released
time program that allowed students, with the permission of their
parents, to leave the school grounds and go to religious centers for
religious instruction.  It observed that "(w)hen the state encourages
religious instruction or cooperates with religious authorities by
adjusting the schedule of public events to sectarian needs, it follows
the best of our traditions" (343 U.S. at 313-314).  The Court reasoned
(id. at 313) that there are many circumstances in which public school
students need special provision to enable them to exercise their
religion.  Examples given were Roman Catholic mass during school hours
on a Holy Day of Obligation, Jewish observances on Yom Kippur, and
Protestant attendance at a family baptismal ceremony.  The need for
regular religious instruction and devotion, the Court found, is not
different.  Whether religious accommodation is made "occasionally for
a few students, regularly for one, or pursuant to a systematized
program designed to further the religious needs of all the students
does not alter the character of the act" (ibid.).

   A moment of silence is an equally appropriate response to the
religious needs of many students.  /16/ By providing a brief
opportunity that the students may use, if they wish, for prayer -- or
for meditation or other quiet contemplation if they prefer.  Nothing
is asked of a student who wishes not to pray or meditate but that he
remain silent, respecting the rights of his fellow students whose
views may be different.  In general, others need not even know what a
person chooses to do.  Even more clearly than was true in Zorach,
then, the moment of silence puts religion on a wholly voluntary basis.
 It simply expands the freedom available to individuals to decide for
themselves whether and how to engage in religious practice, without
inducing or coercing that choice.

   It could be asserted that a statute providing for a moment of
silence is not necessary to accommodate the religious needs of school
children because, even in the absence of such a statute, a student may
engage in silent prayer.  While this may be true, it does not follow
that the provision for a moment of silence does not "lift() a
government-imposed burden on the free exercise of religion" (Jaffree,
472 U.S. at 83 (O'Connor, J., concurring in the judgment)).  Though it
may be possible to meditate or pray during the hustle-bustle of lunch,
or on the playground, or during a lull in classroom activity, surely
all contemplative activity, including prayer, is enhanced if outside
distractions are momentarily stilled.  Many people may be dissuaded,
by those distractions or by potential embarrassment, from undertaking
to pray or meditate.  If all are silent, then all are free to pray or
meditate as they choose, without having to appear "different." Cf.
Abington School Dist. v. Schempp, 374 U.S. at 208 n.3.

   Moreover, necessity is not the standard.  Most forms of religious
accommodation are subject to the objection that they are
"unnecessary." The students involved in Zorach could have found time
in the evening or at dawn to engage in religious instruction, without
benefit of the released time program.  The employees of
church-operated schools in St. Martin Evangelical Lutheran Church v.
South Dakota, 451 U.S. 772 (1981), could probably afford to pay
unemployment taxes (cf. United States v. Lee, supra).  There is no
indication that parents in Mueller v. Allen, supra, could not send
their children to religious schools without tax deductions.  The need
for a particular religious accommodation (where not required by the
Free Exercise Clause) is primarily a question of public policy, for
legislatures to assess.  See United States v. Lee, 455 U.S. 252,
259-261 (1982);  Zorach v. Clauson, 343 U.S. at 310, 314.
Approximately half of the states have judged it appropriate to
accommodate the religious needs of schoolchildren by providing an
opportunity to pray during a formal moment of silence (see Jafree, 472
U.S. at 70-71 & n.1 (O'Connor, J., concurring in the judgment)).
Their reasons for doing so are substantial, and their action is
consistent with the purpose of the Religion Clauses -- to facilitate
the free and voluntary exercise of religion, not to restrict it to an
inhospitable and grudging minimum.  /17/

   3. Even accepting the factual findings of the courts below, the New
Jersey statute should be found to have a permissible purpose.  The
court of appeals, reviewing the district court's finding of a
"religious" purpose "to mandate a period * * * when all students would
have an opportunity to engage in prayer" (J.S. App. 86a) under the
clearly erroneous standard, /18/ stated that it accepted the district
court's finding that the legislature's purpose was religious "to the
extent of requiring school districts to accommodate those students
desiring the opportunity to engage in prayer at some point during the
school day" (id. at 27a-28a).  The court of appeals further stated
that "(g)iven the language of the New Jersey statute which * * * is
permissive for students, and the record evidence, we do not believe a
finding that the religious purpose was to encourage prayer over other
alternatives, rather than to accommodate those wishing to pray, would
be sustainable" (id. at 28a-29a).

   We think the courts below failed to recognize the critical
distinction between legislation removing obstacles to wholly voluntary
religious observance, which is entirely permissible (see pages 18-23,
supra), and that which endorses or promotes the practice of religion
in general or of one religion in particular, which is impermissible
(see Jaffree, 472 U.S. at 59-61).  The district court's finding of a
purpose to provide an "opportunity" for prayer simply demonstrates
that the New Jersey statute falls within the former, permissible
category.  /19/

   4. More fundamentally, we disagree profoundly with the approach
adopted by the district court and approved by the court of appeals, in
going behind the admittedly neutral face of the statute (J.s. App.
26a) to find legislative purpose in a combination of public sentiment
and the selected comments of a small handful of legislators.  In our
view, when a plausible /20/ secular purpose is apparent from the face
of the statute or even from its official legislative history, there is
a strong presumption in favor of accepting it, and that presumption
generally should not be subject to impeachment by evidence of the
specific motives of certain legislators.  See Jaffree, 472 U.S. at
74-75 (O'Connor, J., concurring in the judgment);  McGowan v.
Maryland, 366 U.S. 420, 466 (1961) (opinion of Frankfurter, J.) ("(t)o
ask what interest, what objective, legislation serves, of course, is
not to psychoanalyze its legislators, but to examine the necessary
effects of what they have enacted").  "Inquiries into congressional
motives or purposes are a hazardous matter.  * * * What motivates one
legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are
sufficiently high for (the Court) to eschew guesswork." United States
v. O'Brien, 391 U.S. 367, 383-384 (1968) (footnote omitted);  see also
Everson v. Board of Education, 330 U.S. 1, 6 (1947).  Only in
extraordinary circumstances should such evidence of motivation be
found sufficient to invalidate a permissible purpose established
through more conventional means.  /21/

   Here, absent any finding that the facially neutral statute was
applied by teachers in a way to encourage voluntary prayer (J.S. App.
26a), the district court relied substantially on the unrecorded
comments /22/ of Assemblyman Zangari, the principal sponsor of the
bill (id. at 68a-71a).  Zangari's cited statements suggest that he
personally favored prayer in schools and had previously introduced two
unsuccessful bills directed explicitly at advancing that objective.
On this evidence, as well as very limited references to the views of a
handful of other legislators, /23/ the court concluded that "(t)he
driving force behind the Bill came from those who deeply and sincerely
believed that an opportunity for prayer in public schools at the
beginning of each day should be mandated" (id. at 87a).

   The court also made note of prior efforts by others to return
prayer to the New Jersey schools (J.S. App. 67a), and to the
opposition to the present legislation which primarily derived from
hostility to any sort of prayer in school -- whether silent and
voluntary or otherwise (id. at 71a-82a).  And it rejected as "an
after-the-fact rationalization" (id. at 87a) the assertion that the
bill had a wholly secular purpose to provide, by connoting seriousness
and solemnity, a period of transition from outside life to the work of
the school.  Its conclusion in this regard rested on testimony which
it found to demonstrate "beyond any doubt whatsoever" that one minute
of silence as a transitional device "has little educational value"
(id. at 84a).

   The fact that a bill's sponsor might have preferred legislation
more explicitly favorable to prayer in school, but was unable to
effect its passage, does not at all suggest that the neutral statute
that was adopted shares the same objectionable purpose.  Nor can the
plain intent of a statute, borne out by the neutral manner of its
application, be undermined by the fact that those opposing enactment
focused on the undeniable aspect of the statute's providing an
opportunity for religious observance.  Their opposition on this ground
does not alter the statute's provision of a genuine opportunity for
reflection by all students, to be put to whatever secular or religious
ends they deem appropriate.  Cf. Selective Service System v. Minnesota
Public Interest Research Group, 468 U.S. 841, 855-856 n.15 (1984)
(statements made by opponents of legislation are entitled to "little,
if any weight" in construing statute).  Nor does the district court's
pedagogical conclusion as to the uselessness of a silent interlude
between outside life and school time alter the fact that the New
Jersey legislature, for reasons known only to each legislator who cast
a vote, plainly reached a contrary conclusion.

   This Court's decision in Jaffree is fully consistent with our
position in this case.  There, the Court's determination regarding the
statute's purpose rested primarily on legislative history, the text of
the statute, and the fact that "(t)he State did not present evidence
of any secular purpose." 472 U.S. at 57 (emphasis in original).  /24/
Jaffree thus turned in large part upon the absence of any plausible
secular purpose, either on the face of the statute or otherwise.  Id.
at 59-60;  id. at 66 (Powell, J., concurring);  id. at 77-78
(O'Connor, J., concurring in the judgment).  The Court did not
indicate that inquiry into the motivations of individual legislators
would be appropriate if the statute itself had evidenced a permissible
purpose.

 B. The Statute Does Not Have The Impermissible Effect Of Advancing Or
Inhibiting Religion, Or Of Creating An Entanglement Between Church And
State

   The New Jersey statute, which provides for a moment of silence
without prescribing how a student should use that moment, does not
have any effect that this Court has identified as impermissible under
the Establishment Clause.  It is neutral among religions and therefore
does not violate the Establishment Clause's command that "one
religious denomination (not) be officially preferred over another."
Larson v. Valente, 456 U.S. 228, 244 (1982);  see also Gillette v.
United States, 401 U.S. 437, 449 (1971);  Zorach v. Clauson, 343 U.S.
at 314.  All major religious faiths recognize silent prayer as an
acceptable form of prayer.  C. Whittier, Silent Prayer and Meditation
in World Religions 7 (Cong. Res. Serv. May 27, 1982).  A better
example of accommodation of all faiths * * * and hostility toward
none" (Lynch v. Donnelly, 465 U.S. at 673) would be difficult to find.
 /25/

   Nor does the statute promote a "symbolic union of church and
state," because it does not "convey() a message of government
endorsement or disapproval of religion" (School District v. Ball, No.
83-990 (July 1, 1985), slip op. 16).  As Justice O'Connor has
observed, "a moment of silence is not inherently religious.  Silence,
unlike prayer or Bible reading, need not be associated with a
religious exercise." Jaffree, 472 U.S. at 72 (concurring opinion);
see also id. at 62 n.2 (Powell, J., concurring).  Indeed, moments of
silence are wholly neutral as between religious and nonreligious
needs.  Silence makes possible not only religious but nonreligious
contemplation -- both "prayer" and "meditation." And by the very
nature of silence, the mind can be directed to wholly
nontranscendental matters as well -- to anything from God to homework
to the girl or boy next door.  Cf. Jaffree, 472 U.S. at 66 n.9
(Powell, J., concurring) ("(g)iven the types of subjects youthful
minds are primarily concerned with, it is unlikely that many children
would use a simple 'moment of silence' as a time for religious prayer.
 There are too many other subjects on the mind of the typical child").
 Moment of silence statutes thus do not "confer any imprimatur of
state approval on religious sects or practices" (Widmar v. Vincent,
454 U.S. 263, 274 (1981)).  /26/

   And this statute certainly does not infringe an individual
student's constitutional right "to select any religious faith or none
at all" free from interference by government in that choice (Jaffree,
472 U.S. at 53).  /27/ "During a moment of silence, a student who
objects to prayer is left to his or her own thoughts, and is not
compelled to listen to the prayers or thoughts of others." Id. at 72
(O'Connor, J., concurring in the judgment);  id. at 62-63 & n.2, 66
n.9 (Powell, J., concurring);  see also page 29, supra.

   Finally, a moment of silence occasions no intrusion whatever by the
state into church affairs or vice versa (cf. Lemon v. Kurtzman, 403
U.S. at 614), and thus entails no interference with "the essential
autonomy of religious life" (Marsh v. Chambers, 463 U.S. at 803
(Brennan, J., dissenting)).  There is no interaction between
government and religious authorities and no need for inquiry into
religious issues.  Compare Zorach v. Clauson, 343 U.S. 308 (Court
found no improper entanglement between government and religion even
though school districts decided what "religious centers" would qualify
for the released time programs and school officials reviewed weekly
attendance reports from churches).

                              Conclusion

   The appeal should be dismissed for want of jurisdiction.  If the
Court reaches the merits, the judgment of the court of appeals should
be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   MICHAEL CARVIN

      Deputy Assistant Attorney General

   ANDREW J. PINCUS

      Assistant to the Solicitor General

   DAVID K. FLYNN

   LISA J. STARK

   DENNIS J. DIMSEY

      Attorneys

   APRIL 1987

   /1/ The United States has participated as a party or as amicus
curiae in numerous cases arising under the Religion Clauses of the
First Amendment.  See, e.g., briefs filed by the United States in
Corporation of the Presiding Bishop of The Church of Jesus Christ of
Latter Day Saints v. Amos, No. 86-179 (argued Mar. 31, 1987);  Hobbie
v. Unemployment Appeals Comm'n, No. 85-993 (Feb. 25, 1987);  Ansonia
Board of Education v. Philbrook, No. 85-495 (Nov. 17, 1986);  Bowen v.
Roy, No. 84-780 (June 11, 1986);  Goldman v. Weinberger, No. 84-1097
(Mar. 25, 1986);  Witters v. Washington Dep't of Services for the
Blind, No. 84-1070 (Jan. 27, 1986);  School District v. Ball, 473 U.S.
373 (1985);  Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985);
Wallace v. Jaffree, 472 U.S. 38 (1985);  Lynch v. Donnelly, 465 U.S.
668 (1984);  Marsh v. Chambers, 463 U.S. 783 (1983);  United States v.
Lee, 455 U.S. 252 (1982);  St. Martin Evangelical Lutheran Church v.
South Dakota, 451 U.S. 772 (1981);  Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63 (1977);  Sloan v. Lemon, 413 U.S. 825 (1973);
Roemer v. Board of Public Works, 426 U.S. 736 (1976);  Lemon v.
Kurtzman, 403 U.S. 602 (1971);  and Tilton v. Richardson, 403 U.S. 672
(1971).

   /2/ The district court declared the statute unconstitutional on its
face and as applied, but entered no injunctive relief (J.S. App.
101a-102a).

   /3/ The court stated that requiring other pupils to remain seated
might not be "the only possible accommodation to the views of
nonparticipants.  * * * In some districts it may be possible that
nonparticipating pupils leave the classroom during the exercise" (J.S.
App. 22a).

   /4/ Judge Becker further stated that even under a deferential
standard of review he would overturn the district court's conclusion
that the statute lacked a secular purpose (J.S. App. 58a-60a).

   /5/ It appears from the documents filed in this Court that Karcher
is the only appellant pursuing this appeal.  The jurisdictional
statement identifies four appellants:  appellant Karcher, "the New
Jersey General Assembly, Carmen A. Orechio, as President of the New
Jersey Senate, and the New Jersey Senate" (J.S. ii).  The incumbent
Speaker of the General Assembly and President of the Senate have
disavowed any interest in pursuing an appeal in this Court (Mot. to
Dis. App. 4a-5a).  Because the legislative bodies' interest in
intervening in this action was presented through the representations
of the prior Speaker and President, who asserted a right to represent
the legislative bodies' views in litigation (see id. at 15a), these
new representations appear to be sufficient to withdraw the General
Assembly and the Senate as appellants before this Court.  Appellant
Orechio has not indicated any interest in pursuing the appeal before
this Court over the objection of the current President of the Senate.
Cf. Princeton University v. Schmid, 455 U.S. 100 (1982).  In any
event, his status is indistinguishable from that of appellant Karcher
and he therefore lacks standing for the reasons discussed in the text
below.

   /6/ The fact that Karcher was not named as an original defendant in
the complaint, but intervened as a defendant little more than a week
after the complaint was filed, does not alter the fact that he
appeared in the action solely in his official capacity as Speaker of
the New Jersey General Assembly.

   /7/ Karcher appears to assert (Mot. to Dis. App. 6a-7a) that he
remains a party to this litigation as a representative of the 200th
New Jersey Legislature, the body that enacted the moment of silence
law.  But that legislative body expired in January 1984 (see N.J.
Const. Art. 4, Section 1, para. 3).  Karcher cannot represent an
entity that no longer exists.

   /8/ Coleman v. Miller, 307 U.S. 433 (1939), is not to the contrary.
 The Court held in that case that 20 state senators who had voted
against ratification of a constitutional amendment had standing to
challenge the legality of a tie-breaking vote in favor of ratification
that was cast by the lieutenant governor as presiding officer of the
state senate.  The Court reasoned that "these senators have a plain,
direct and adequate interest in maintaining the effectiveness of their
votes" (307 U.S. at 438).  First, the votes of the 20 senators in
Coleman were legally significant as a bloc, because they were
sufficient to prevent ratification absent the contested vote cast by
the lieutenant governor.  Nothing in the record indicates that
Karcher's vote in favor of the moment of silence law, standing alone,
carried such significance.  Second, Coleman dealt with standing to
challenge alleged irregularities in the legislature's internal voting
process, and did not address the issue of standing to defend the
constitutionality of a properly enacted statute.  An extension of the
Coleman rationale to the present context would enable any legislator
to intervene in any case concerning the validity or interpretation of
a statute for which the legislator had voted.  That broad conclusion
is inconsistent with Article III.  See McRae v. Mathews, 421 F. Supp.
533, 540 (E.D.N.Y. 1976), rev'd on other grounds, 448 U.S. 297 (1980).

   /9/ Because we conclude that Karcher has no standing to appeal to
this Court, we do not address whether the two houses of the New Jersey
legislature and their representatives had standing to appeal to the
court of appeals.  See Bender v. Williamsport Area School Dist.,
supra.  We note that the record does not appear to reflect whether the
legislature's intervention was authorized by a resolution passed by
the legislature.  Cf. Pet. Br. at 27 n.20, Burke v. Barnes, No. 85-781
(Jan. 14, 1987).  (We have provided counsel with copies of this
brief).

   /10/ We note that a statute is invalid under the purpose prong of
the Lemon test only if it has no permissible purpose.  See Wallace v.
Jaffree, 472 U.S. at 56 (statute must be invalidated if "it is
entirely motivated by purpose to advance religion") (footnote omitted;
 emphasis added);  see also id. at 64 (Powell, J., concurring);  Lynch
v. Donnelly, 465 U.S. 668, 680 (1984).

   /11/ Plutarch, Concerning Talkativeness, in VI Plutarch's Moralia
407 (W.C. Helmbold trans. 1927);  Montaigne, Of Solitude, in The
Complete Works of Montaigne 177 (D. Frame trans. 1958);  I H.D.
Thoreau, Journal 64-65, 67 (B. Torrey ed. 1906);  S. Bok, Secrets 42
(1982).

   /12/ One possible, specific contribution -- though certainly not
the only one -- of a brief, silent interlude at the beginning of the
school day, is to provide a "boundary" between school and non-school
time, to emphasize the need for discipline and seriousness in the
school context.  While appellants asserted such a justification for
the statute, the district court found that this was an "after-the-fact
rationalization and not the real purpose of the (statute)" (J.S. App.
87a).  We agree with Judge Becker that this finding must be overturned
(id. at 56a-57a).

   /13/ Insofar as it embodies an accommodation of religious
differences, the moment of silence also serves the wholesome purpose
of "fostering harmony and tolerance among the pupils" (Abington School
Dist. v. Schempp, 374 U.S. at 280 (Brennan, J., concurring)).  Ours is
a nation of great religious diversity.  Schoolchildren may reveal
their religious background -- or lack of it -- in the clothing they
wear, the food they eat, or the words they utter;  religious
differences are not likely to be overlooked.  Harmony requires,
therefore, that we develop habits of mutual respect and toleration for
the religious practices of others.  The moment of silence provides an
opportunity for young people to learn that each individual is free to
worship and believe (or not believe) according to the dictates of his
own conscience, and that the religious practices of others do not
threaten or interfere with their own.  The moment of silence is
uniquely suited to such a lesson in toleration because of its dual
nature -- as an opportunity for exercise of faith among those who
believe, and a wholly secular occasion for those who do not.

   /14/ Some accommodations of religion are compelled by the Free
Exercise Clause.  See, e.g., Hobbie v. Unemployment Appeals Comm'n,
No. 85-993 (Feb. 25, 1987);  Thomas v. Review Board, 450 U.S. 707
(1981);  Wisconsin v. Yoder, 406 U.S. 205 (1972);  Sherbert v. Verner,
374 U.S. 398 (1963).  But the Court has made clear that government's
authority to accommodate religion is not limited to the measures
required by the Free Exercise Clause:  "(t)he limits of permissible
state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.  To equate the
two would be to deny a national heritage with roots in the Revolution
itself." Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970);  see also Bowen
v. Roy, No. 84-780 (June 11, 1986), slip op. 18 & n.19 (opinion of
Burger, C.J.);  Wallace v. Jaffree, 472 U.S. at 82 (O'Connor, J.,
concurring in the judgment);  Marsh v. Chambers, 463 U.S. 783, 812
(1983) (Brennan, J., dissenting);  TWA v. Hardison, 432 U.S. 63, 90
(1977) (Marshall, J., dissenting);  Gillette v. United States, 401
U.S. 437, 453 (1971).

   The Court has approved a variety of measures designed to enhance
individuals' ability to conduct themselves in accordance with their
religious beliefs without first finding such measures to be compelled
by the Free Exercise Clause.  See, e.g., Witters v. Washington Dep't
of Services for the Blind, No. 84-1070 (Jan. 26, 1986) (extension of
aid under state vocational rehabilitation program to finance
petitioner's theological training);  Lynch v. Donnelly, supra
(inclusion of creche in municipal Christmas display);  Marsh v.
Chambers, supra (opening of legislative sessions with prayer);
Mueller v. Allen, 463 U.S. 388 (1983) (tuition tax credits);  St.
Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 490
(1979) (implied exemption of church-operated school employees from the
National Labor Relations Act);  Gillette v. United States, 401 U.S.
437 (1971) (exemption of religious observers from compulsory military
service);  Walz v. Tax Comm'n, supra (property tax exemptions for
religious organizations);  McGowan v. Maryland, 366 U.S. 420 (1961)
(Sunday closing laws);  Zorach v. Clauson, supra (off-premises public
school release time programs).

   /15/ It is particularly appropriate for the state to provide an
opportunity for voluntary religious exercise in circumstances such as
military service, prisons, or compulsory schooling, where the state
has itself created a regimented environment that might -- in the
absence of governmental accommodation -- tend to inhibit religious
exercise.  See Marsh v. Chambers, 463 U.S. 783, 812 (1983) (Brennan,
J., dissenting).

   /16/ It might be argued that the moment of silence is more like the
on-premises released time program invalidated in Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203 (1948), than the
off-premises program approved in Zorach, simply because the
opportunity for religious practice here takes place physically on the
public school premises.  However, the constitutional flaw in the
McCollum program was that "the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction" (Zorach, 343 U.S. at 315).  Since the moment of
silence is not in and of itself a religious activity (but only a
moment of privacy in which a student may, if he chooses, engage in a
religious activity), it does not create the concerns generated by the
McCollum program.  The classroom is not used for religious instruction
or overt religious observance;  thus the force of the school is in no
way invoked to promote prayer.

   /17/ At one point in its opinion in Jaffree, the Court stated that
the moment of silence statute challenged in that case could not be
justified as an accommodation of religion (see 472 U.S. at 57-58
n.45).  That statement did not refer to moment of silence statutes
generally, but to the peculiar characteristics of the statute at issue
in Jaffree.  As the Court noted, a previously-enacted Alabama statute
protected "every student's right to engage in voluntary prayer during
an appropriate moment of silence during the schoolday" (id. at 59).
Because there was no secular purpose that was not "fully served by"
the prior statute, the subsequently-enacted statute could not be
upheld as an accommodation to religion (ibid).

   /18/ The court below divided with respect to the standard of review
to be applied to the district court's findings.  Compare J.S. App.
27a-29a (applying clearly erroneous standard) with id. at 44a-47a
(Becker, J., dissenting) (concluding that plenary review is
appropriate).  For the reasons that we discuss in the text below, we
do not believe that the standard of review is dispositive in this
case.  We note, however, that regardless of the standard of review
applicable to the district court's factual determinations, the
district court's characterization of a statute's purpose as
"religious" or "secular" is a legal conclusion subject to plenary
review on appeal.  In addition, the factors favoring de novo review
identified by the Court in Bose Corp. v. Consumers Union, 466 U.S. 485
(1984), and Miller v. Fenton, No. 84-5786 (Dec. 3, 1985), would appear
to weigh in favor of de novo review of factual findings in the
Establishment Clause context as well.  See Jaffree, 472 U.S. at 76
(O'Connor, J., concurring in the judgment).

   /19/ It is instructive to compare the New Jersey statute to the
Alabama statute at issue in Jaffree.  First, Alabama had enacted a
moment of silence statute prior to the adoption of the statute at
issue in Jaffree.  The second statute could not be justified as an
accommodation of religion or as an educational measure because those
purposes already were fully accomplished by the existing moment of
silence statute.  See 472 U.S. at 58-59;  id. at 65 (Powell, J.,
concurring);  id. at 77, 83-84 (O'Connor, J., concurring in the
judgment).  Because New Jersey had no pre-existing moment of silence
statute, the statute challenged in this case is supported by these
secular purposes.  Second, the Alabama statute's legislative history
indicated that the purpose of the statute was "'to return voluntary
prayer' to the public schools" (id. at 57 (footnote omitted)).  Here,
by contrast, the district court found that the legislative history of
the New Jersey statute evidences an intent to accomplish the secular
purpose of accommodating religion (see J.S. App. 86a).

   We note in addition that the Alabama statute expressly identified
"voluntary prayer" as an activity permissible during the moment of
silence while the New Jersey statute does not.  We do not believe that
the listing of prayer as a permissible activity automatically
invalidates a statute under the Establishment Clause.  As Justice
O'Connor has observed, "(e)ven if a statute specifies that a student
may choose to pray silently during a quiet moment, the State has not
thereby encouraged prayer over other specified alternatives" (472 U.S.
at 73 (concurring in the judgment)).

   /20/ We emphasize that the purpose must be "plausible." A secular
purpose that is clear on the face of the statute will not satisfy the
Lemon test if it is a "sham." See Jaffree, 472 U.S. at 75 (O'Connor,
J., concurring in the judgment);  id. at 64 (Powell, J., concurring);
Stone v. Graham, 449 U.S. 339 (1980) (per curiam).

   /21/ The Court has recognized that "judicial inquiries into
legislative or executive motivation represent a substantial intrusion
into the workings of other branches of government.  Placing a
decision-maker on the stand is therefore 'usually to be avoided'"
(Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 268 n.18 (1977)).

   This is not to say that a statute with a facially valid purpose may
never be found to violate the Establishment Clause.  But it will be
the rare case in which evidence of the motivations of individual
legislators so extensively documents the intentions of the legislators
who voted for a bill that these individual motivations may be said to
represent the purpose of the legislature as a whole.  Cf. Hunter v.
Underwood, 471 U.S. 222 (1985);  Epperson v. Arkansas, 393 U.S. 97,
108 (1968).  A party seeking to overturn a statute on this basis thus
bears an extremely heavy burden.

   /22/ Since the New Jersey legislature does not preserve an official
record of its hearings and debates, the court relied on the testimony
of witnesses who attended the legislative committee meetings or
otherwise heard comments which the court deemed relevant (J.S. App.
68a & n.2).

   /23/ The evidence cited by the court refers by name to three State
senators and one assemblyman (J.S. App. 70a).  The very limited
comments attributed to them do not include any endorsement of
officially sanctioned prayer in school.

   /24/ The Court also relied upon the testimony of the sponsor of the
bill that became the moment of silence statute, but that testimony
simply reiterated that legislator's virtually identical statements in
the legislative history.

   /25/ The district court found as a fact that the moment of silence
instituted under New Jersey law is unsuitable for prayer by persons of
some religious faiths (J.S. App. 88a), but provided no examples of
religions that do not consider silent prayer as at least one
acceptable mode of religious expression.  Even assuming that such
sects exist, the court's further conclusion that the moment of silence
"prevents others from engaging in their form of prayer" (id. at 96a)
is not correct.  Adherents of such faiths, like those of no faith at
all, remain free to meditate on secular subjects.  Their religious
liberty, even if not enhanced by the moment of silence, is in no way
diminished.  As the court of appeals stated in rejecting the district
court's determination, "(t)he (moment of silence) statute simply does
not address the problem of accommodating the beliefs of those whose
prayer must be oral or otherwise self expressive.  * * * It is * * *
the compulsory school attendance law, not (the moment of silence
statute) that 'prevents other persons from engaging in their kind of
prayer'" (id. at 19a).

   /26/ The fact that some students may use the moment of silence for
religious contemplation does not transform a neutral statute into
government endorsement of religion.  "By mandating a moment of
silence, a State does not necessarily endorse any activity that might
occur during the silent period." Jaffree, 472 U.S. at 73 (O'Connor,
J., concurring in the judgment);  cf. Widmar v. Vincent, 454 U.S. 263,
272 n.10 (1981) ("by creating a forum the (State) does not thereby
endorse or promote any of the particular ideas aired there");  Zorach
v. Clauson, 343 U.S. at 311.  All that the State has "endorsed"
through a moment of silence is the view that religious observances by
those who choose to engage in them should, where possible, be
accommodated by government.  Cf. Wallace v. Jaffree, 472 U.S. at 83
(O'Connor, J., concurring in the judgment) ("(i)n assessing the effect
of (a statute that lifts a government-imposed burden upon the free
exercise of religion) -- that is, in determining whether the statute
conveys (to an objective observer) the message of endorsement of
religion or a particular religious belief -- courts should assume that
the 'objective observer' is acquainted with the Free Exercise Clause
and the values it promotes").

   /27/ The Court's decisions barring the practice of spoken prayer in
school rest in part on the observation that "(w)hen the power,
prestige and financial support of government is placed behind a
particular religious belief, the indirect coercive pressure upon
religious minorities to conform to the prevailing officially approved
religion is plain." Engel v. Vitale, 370 U.S. 421, 431 (1962);  see
also Abingdon School Dist. v. Schempp, 374 U.S. at 223-224.