Brown v. Gilmore, 533 U.S. 1301, 4 (2001)

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1304

BROWN v. GILMORE

Opinion in Chambers

plicitly conceded that the sole purpose of its moment of silence law was to return prayer to the Alabama schools. We in fact emphasized in Wallace that the Alabama statute "had no secular purpose." 472 U. S., at 56 (emphasis in original). At the very least the lower court's finding of a clear secular purpose in this case casts some doubt on the question whether 22.1-203 establishes religion in violation of the First Amendment. See, e. g., id., at 66 (Powell, J., concurring) ("[A] straightforward moment-of-silence statute is unlikely to 'advance or inhibit religion' "); id., at 73 (O'Connor, J., concurring in judgment) ("Even 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").

Without expressing any view of my own, or attempting to predict the views of my colleagues as to the ultimate merit of applicants' First Amendment claim, I can say with some confidence that their position is less than indisputable.

Applicants point out that Justice Powell stayed the order of the District Court dissolving a preliminary injunction in Wallace. See Jaffree v. Board of School Comm'rs of Mobile Cty., 459 U. S. 1314 (1983) (opinion in chambers). But there the plaintiffs alleged that "teachers had 'on a daily basis' led their classes in saying certain prayers in unison." Wallace, supra, at 42. Here, by contrast, after more than a year of operation, the Virginia statute providing for a minute of silence seems to have meant just that. There is no allegation that Virginia schoolteachers have used the minute of silence, or any other occasion, to lead students in collective prayer. To the contrary, the Court of Appeals noted that between 1976 and 2000 at least 20 local school divisions in Virginia established a minute of silence in their classrooms, yet there is no evidence of the practice having ever been used as a government prayer exercise.

I also note that applicants could have made an immediate application to a Justice of this Court under 28 U. S. C.

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