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Burden of Proof

Supporters and Opponents Making Loud Noise on 'Moment of Silence' in Public Schools

Aired September 8, 2000 - 12:30 p.m. ET


ROGER COSSACK, CNN ANCHOR: Today, on BURDEN OF PROOF: Although it's called a moment of silence, supporters and opponents are making loud arguments about religion and government.


BARRY LYNN, AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND STATE: We're not going to see any kind of public assemblies, public football games, basketball games be turned into revival meetings. Not after this decision.

UNIDENTIFIED FEMALE: I'm not here to put down people who don't believe what I do, but I don't think that changes my freedom to exercise my right.

MARTIN COMINSKY, ANTI-DEFAMATION LEAGUE: The Supreme Court reiterated that freedom of religion is a right for both the majority and the minority, and that no one religious group can get the power of the microphone in a public stadium.


ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to BURDEN OF PROOF. Greta is off today.

Well, the legal battle lines are being drawn in Virginia over a familiar dispute: school prayer. A moment of silence has been instituted in schools, allowing students and teachers to spend 60 seconds in silence.

On Tuesday, a handful of students in Fairfax and Arlington walked out of class in protest. And now, the argument regarding religion and government is rushing back to the headlines.

Joining us here in Washington: Crystal Roberts, legal policy analyst for the Family Research Council; constitutional law professor Bruce Fein; and Barry Lynn, executive director of Americans United for Separation of Church and State. In the back: Misty Hunt, Conan Krueger (ph) and Mark Shesselee (ph). Well, Crystal, let's go right to you. The Supreme Court has held that you cannot have organized prayer in school. Virginia has now passed a law that says for 60 seconds students will be -- have a moment of silence at which they are allowed to do, I suppose, whatever it is they want to do, except perhaps bother their neighbor, but certainly they can pray if they want to. They don't have to pray if they want to.

Is there anything wrong with that?

CRYSTAL ROBERTS, FAMILY RESEARCH COUNCIL: Well, absolutely not. The key difference between Virginia's law and a case that the Supreme Court held -- heard in the mid-'80s, as well as even the Santa Fe case that they just heard and ruled on in June is that, first of all, this case only recognizes the students' right to choose to do whatever it is they wish to do.

Secondly this is silent. The law does not -- only does the law not tell students that they must pray, but the law in no way used the school facilities, such as the microphone, or anything else, to facilitate that.

COSSACK: Let me interrupt you for a second. And, I agree with what you are saying. What's the purpose of a moment of silence? What's the purposes of 60 seconds of silence before school starts?

ROBERTS: Well, certainly, one purpose is to calm down the classroom, to get the children focused on what they are there to do that day and a number of teachers have already commented that the students do indeed respect the moment of silence in that way.

Certainly, another purpose is to also allow the children to have a moment of inner reflection, to reflect upon whatever they feel they need to reflect on in that morning. So, whether it's some type of meditation, whatever.

COSSACK: Well, if that is all true, then why has Virginia said that students who don't enjoy this moment of reflection can walk out, if the purpose is to calm down the students?

ROBERTS: Well, for a couple reasons. First of all, they don't want anyone to in any way feel pressured to have to meditate or to -- or to exercise some type of religious, you know, spiritual observance.

COSSACK: So, then, you will agree, that moment, those 60 seconds are -- can be utilized by students for spirituality, and the recognition that the other students can leave is a recognition that religious activities are going on.

ROBERTS: Yes, in fact --

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: I think that's a misstatement, as a matter of fact, Roger. The school authorities have not accepted the right to remove the child, remove himself from the classroom. There was one case where a principal enabled the child to come sit in the principal's office, but that was simply an exception that was created. There's nothing in the law that allows that. And, indeed, it's hard to say that a student would be offended. They don't even know what their classmates are doing during the 60 seconds.

COSSACK: Bruce, it's hard for me, you know, to argue with an old friend like you, but I debate you over those facts. While it is not a part of the law that the student can withdraw, it has become somewhat accepted that students who do wish to withdraw can withdraw.

Of course, my question is, if they can withdraw from that 60 seconds, you know, if it was me, I would be withdrawing from the algebra class. But, of course that's another subject.

Barry, what is the problem with this?

REV. BARRY LYNN, AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND STATE: Well, the problem is, if you look at the history of why this moment of silence law has been put on the books in Virginia, it's the same reason it's put on the books in many states, and many courts have declared these unconstitutional, because they know, as I know and you know, what is really going on here.

This is to set aside a time for a specific period of religious activity. There would be no effort to have a moment of silence if the only reason anybody had to dream it up was because it was going to calm children down. The government doesn't have to say: Well, we will set aside these 60 seconds and do something calming for the student body.

We know this is about religion. We know if you look at the legislative history of this statue that it is filled with members of the Virginia legislature talking about how we need prayer back in school. This is what it's about.

You know, my son happens to be in the Fairfax County High School System. I say, what did you do during your moment of silence? He said: I started to do some calculations. That raised my curiosity. I said: Well, what did you do? And he said: Well, one minute times 183 days of school times 13 years K to 12, we would be spending 6 1/2 full school days doing nothing but sitting on our hands.

COSSACK: But, Barry, there's nothing wrong, as I understand it, there's nothing unconstitutional, about coming to school and stating a prayer, as long as it's not mandated or organized by the school.

LYNN: But, this one is, because the time of it is set: one 60 second period, and the manner is set: silence. And, I will tell you why that is important. Because there's some religious communities in our country where silent prayer is unacceptable.

Many orthodox Jews, for example, believe that if a prayer is not vocalized, it is not appropriate .

COSSACK: But they do not have to pray. LYNN: See, it's not religiously neutral. Muslims don't have any Islamic traditional prayer

COSSACK: All right, let me interrupt you now and go to the man in the middle.

I think Barry's argument is at war with itself. First of all, he identifies his son, I'm sure he's very brilliant, who doesn't utilize the 60 seconds to pray, and he simply said: But, this is an organized prayer scheme that's smuggled through clever language.

Secondly, we have legislators, all of the time, that act for mixed motives, and a becalming effect on hyper-kinetic youngsters is oftentimes of concern to teachers in the classroom.

The U.S. Supreme Court itself, in a case called Wallace and Jaffrey (ph) -- six members said: A genuine moment of silence, which is not -- which is neutral as regard to how the students employ that time is clearly constitutional. I do not think that when you look at the way this which this program is administered where the executive authorities have made clear no one is required to pray, it is an option, like all other options.

COSSACK: But, the question is -- the question is, as Barry would say, is the pressure, that is -- that -- while no one is required to pray, what is the implication?

And Crystal, truthfully, obviously the implication is that what group of people are hoping for is that there will be prayer.

ROGERS: Well, actually, no. If you -- the statute, though, reads that this is an effort to protect the rights of those who do wish to pray and the rights of those who choose not to pray. So, the statute itself is really there to -- remind people that this is a choice you have to make.

You don't have to make the choice that some people may want you to make, but it is up to you.

COSSACK: And, let me just jump in one second. If, in fact, and I know I have to go to break, but if, in fact, this is for people who wish to pray or don't wish to pray, why do we need this one minute at all?

ROGERS: Quite frankly, because the schools have become so hostile towards any expression of religious, you know, religious faith, whether it is silence.

COSSACK: But, the Supreme Court has become, like it or not.

ROGERS: Right, but schools themselves, trying as they may be, have oftentimes misinterpreted, misread what the schools have said out of fear of being sued themselves, and so, therefore, they themselves have really put a muzzle on any kind of religious expression at all.

COSSACK: And, I don't want to put a muzzle on my group, but I do have to take a break.

Up next, does the moment of silence open the door for religion in the classroom?

Stay with us.


COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


REV. ROB SCHENCK, NATIONAL CLERGY COUNCIL: It is an odd thing that the government routinely practices prayer at public ceremonies, from the inauguration of our president to the convening of every congressional session to the sitting of this court.


COSSACK: Virginia has joined a growing number of states to introduce a moment of silence into the classrooms of its public schools. Now, opponents of the law, which provides time for students to engage in any type of silent activity, say it violates First Amendment protection of the separation of church and state.

Joining us now by telephone is Rita Warren.

Rita, you were the moving force behind this, if you will. Why did you go to the legislature in Virginia? And why were you so much in favor of instituting this 60 seconds of silence?

RITA WARREN, PROPOSED LAW TO STATE SENATOR: Because in 1975, I instituted this law in Massachusetts. And this law was challenged in the three judges of federal court, and it was upheld to be constitutional. The judges decided that it was a moment of silence. I would be the first one to fight against any religion forced upon children in school. But this is a moment of silence and it has no meaning whatsoever as far as the intent to introduce any prayer into the school. Now...

COSSACK: Rita, why is it important that there's a moment of silence, then, if it has no purposes to introduce religion in school and there's no actual teaching going on during that moment, that 60- second moment of silence? Why is it so important that we have it in the school?

WARREN: Well, because the reason is that the other day I was in the Fairfax High School. My granddaughter attends there. And I watched those students. There was a chaos in the school at the beginning until that someone came and said, we have a moment of silence. And all of the students automatically stopped and paused. And I myself didn't even realize how long a minute was until I stood there. And after it was over, the students went about their business.

Now what harm can this be? I want to briefly read it to you what the Supreme Court -- U.S. Supreme Court, mind you, Justice O'Connor, said: "A state-sponsored moment of silence in a public school is different from a state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who participates in a moment of silence needs to not to compromise his or her beliefs." So they...

COSSACK: All right, Rita, I understand what the Supreme Court is. Let me move on a little bit to Crystal Roberts.

Crystal, the argument that Rita puts forward says that, look, chaos reigns in the classroom. If we ask students for a moment of silence, they stop whatever they're doing and it has no religious overtones. It can be for whatever they want it to be.

First of all, I mean, I would hope that perhaps a moment of silence does stop chaos in the classroom. But nevertheless, isn't it really -- I mean, isn't this really a way of saying we are trying to get around the traditional barring of prayer in school by putting this moment of silence in and hoping that students pray. And if they do, doesn't it create the same problems that the Supreme Court has talked about?

ROBERTS: Well, actually, I don't know that it does that. Again, the law is very clear. It says that it's there to protect the rights of individuals to exercise their religious beliefs. But at the time same time, it also says that it does not want to infringe upon those individuals who do not want to engage in these type of religious activities.

COSSACK: But by taking a 60-second segment, aren't we setting that up for that kind of activity? In other words, if we all go to algebra class, we're all in there together. The teacher starts, gets puts up on the blackboard, we either understand it or we don't understand it. But when we take a certain period of time and we say, OK, if you want to pray, that's fine; if you don't want to pray, that's fine, but we're setting aside a moment for you to do that. Isn't that the kind of thing that creates the problems that we -- that Barry talks about and the Supreme Court talks about?

FEIN: Can I answer this? The answer is no.


COSSACK: Let Crystal finish and then I'll let you talk.

ROBERTS: Only if the entire purpose is there to promote religion. And, again, there are a number of -- while this is -- first of all, the point of doing this is to provide the opportunity for someone to engage in some type of religious activity, but it's not requiring it. But there are other purposes for it as well. So I think that you can distinguish this from Wallace v. Jaffrey in which the court said -- noticed that the only -- the statute itself said that you could only engage in voluntary prayer or meditation. Further on with some other sister statutes that were enacted with it, it allowed for student -- for teachers to lead students in prayer. It had the actual prayer there. I mean, there are some differences between the two.

COSSACK: All right, Barry, I'm going to ask you to hold on. I'm going to let Bruce go.

FEIN: I think, Roger, you're absolutely accurate in your analysis. The purpose is to permit, not require, a religious exercise if it's voluntarily chosen by the child, and that is exactly what the Supreme Court said is equally permissible in the Murgans (ph) case where the schools set aside extracurricular time after school where persons can have religious activities of clubs and other clubs.

COSSACK: I'm short on time. Let me give Barry a moment.

LYNN: Look, nobody needs the government of the state of Virginia to set up this time for meditation. The reason my son could do math during that minute is because he could do his silent prayers and vocal prayers and meditation before he ever got there, including on the school bus. So the point is, this is all about religion, Roger. You are absolutely right to ask that question. If this was about a mass movement around America to get people to be quiet, it would go nowhere. This is promoted by people who say this is the foot, this is the stepping stone to a return of organized prayer to public schools. We'll set the minute of silence now; it'll be a minute of vocal prayer tomorrow.

COSSACK: All right, how about a minute of silence for my panel while I take a break.

Up next, prayer in school: How many high school football teams will pause for prayer when the stadium lights heat up tonight? Stay with us.


Q: O.J. Simpson lost a legal quest to block the airing of a television mini-series about his criminal trial. On what grounds did Simpson require a preliminary injunction of the project, which was co- written by former Simpson attorney Robert Kardashian?

A: He claims Kardashian is revealing attorney-client privileged information.


COSSACK: The moment of silence debate exposes a disagreement about religion in public schools. But, for some, that moment is just the beginning, clearing the way for prayer on campus.

Crystal, recently the Supreme Court has said that organized prayer before football games would violate the Constitution. And yet we have read and heard that, at some places in high school football games, people are coming on their own, they are bringing radios which they tune to a religious broadcast or on their own, they are conducting -- or they are praying, Does that violate what the Supreme Court says.

ROBERTS: Absolutely not. The Supreme Court ruling in the Santa Fe case in June was strictly limited to the facts of that case, which were the school set up an election, a student was chosen, the student then chose a message, the student then went up to the microphone facilitated by the school, and addressed this audience as the school's invocation prior to the football game.

Whereas what you have going on now are private citizens voluntarily attending the football games, voluntarily choosing to express whatever they wish to express here: religion, their religious beliefs, and praying.

COSSACK: Bruce, I'm now at a high school football game, and I'm really into this game, and sits next to me comes to this person with a boombox, who turns it on very loudly to a religious ceremony, and it is distracting me what, I want to watch the game. What can I do about it, if anything?

FEIN: There may well be some kind of disturbing the peace statute or statute that prohibits noise above this particular volume that would seem to apply everywhere. I do think there would be a problem, not a church-state problem, but an equal protection problem, if the local authorities chose not to apply these regular rules against disturbing the peace to those who are praying, as opposed to those who are doing something else, perhaps singing 2 Live Crew at the top of their lungs, similar sorts of things.

So on that score, he might have a remedy, but it would not be a church theory. He might distracted if someone got down and prayed to Mecca five times. It was a Muslim. But those are sorts of the things that as long as the school applies its obstruction or harassment statutes even-handedly he doesn't really have a reason to object to it.

COSSACK: Barry, is this a thumbing of the nose, if you will, toward the Supreme Court.

LYNN: Some of it is. There is no doubt. In South Carolina, for example, they are in violation of the law.


LYNN: There, they are turning over the public address system to students who do, in fact, offer prayers to everyone. But in these other instances, you know, I am a lawyer but luckily I'm a citizen too. And I like to think that the law doesn't always answer everything we ought to ask.

For example, if you've got these thousand radios blaring the Lord's Prayer and you are doing it in defiance of the court, of the rule of law, or just to make some of the people in that stadium feel like they really are the minority, and second-class citizens, that just is wrong as a matter of the civility that this country ought to be a part of. It may be free speech, but don't call it Christian prayer.

It is like if you had a group of Christians in a park praying, a group of atheists came around and started chanting "Jesus is a joke" that might be free speech. But I would hate to get to a point where we are having battles of insult, deliberately trying to make someone in our community feel like a second-class citizen at their own football stadium. That's the terrible thing that is happening in some districts, even if it is free speech.

COSSACK: And Crystal, what Barry is pointing out I suppose is always the argument in these cases that the person who doesn't belong to the majority, the person who is not part of what is going on, feels a way that they shouldn't have to feel under the Constitution.

But here is a case where people are just on their own deciding what they want to do. Does the Constitution, can the Constitution do anything about that? and should the Constitution do anything about that?

ROBERTS: It shouldn't do thinking about it. I mean, the fact of the matter is, every day you have to sit and hear expression, ideas that you don't agree with, that you don't like, that make you feel horrible, perhaps, but other people have a right to say those things.

The same thing applies to religious expression. We all have different religious beliefs, but in fact, the First Amendment is there to protect those of us who may not believe what everyone else believes.

LYNN: Crystal...

ROBERTS: ... suddenly make that..

COSSACK: Five seconds.

LYNN: Crystal, you can turn off the TV when you see something offensive, if you are standing in a packed football stadium, you have no right to do anything, but stay there because there is no place for you to go.

COSSACK: I have to end this conversation knowing that my friend Bruce Fein is ready to erupt with a perfect answer, but I'm afraid that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today, later on, on "TALKBACK LIVE," they will be having -- they will be having a show to see whether or not your doctor, if your doctor is facing disciplinary action in the medical community, should you be able to know. Tune in, weigh-in at 3:00 p.m. Eastern time. And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.



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