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5th Circuit: Texas moment of silence is constitutional

ADF filed friend-of-the-court brief in defense of state law
Published On: 10/18/2017

NEW ORLEANS — The U.S. Court of Appeals for the 5th Circuit Monday upheld a Texas law allowing students to observe one minute of silence following the Pledge of Allegiance.  The Alliance Defense Fund filed a friend-of-the-court brief in the case last year.  ADF ally Liberty Legal Institute also filed a brief and represented schoolchildren in a hearing before the court.

"A moment of silence is not a government endorsement of religion just because someone might use the time for prayer," said ADF Senior Legal Counsel David Cortman.  "No student is compelled to pray under the Texas law.  The 5th Circuit was right to uphold the district court's determination that the law is not an establishment of religion."

"This law is about freedom.  Students have the freedom to pray, meditate, or simply think about their day.  It took real intolerance for someone to sue to try to stop students from choosing prayer as their option," said ADF-allied attorney Kelly Shackelford, chief counsel of Liberty Legal Institute.

School boards in Texas are required to set aside one minute per day at each school in order to allow students to "reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student."  In 2006, David and Shannon Croft, parents of three children who attend school in the Carrolton-Farmers Branch Independent School District, filed a lawsuit claiming the requirement "causes harm" to their children and is a violation of their First Amendment rights.

In January 2008, the U.S. District Court for the Northern District of Texas upheld the law, ruling that it is constitutional.  The American Civil Liberties Union and Americans United for the Separation of Church and State filed briefs in opposition to the law.  Several courts have upheld similar moment-of-silence laws against Establishment Clause challenges.

In its unanimous opinion, a three-judge panel of the 5th Circuit wrote, "The statute is facially neutral between religious and non-religious activities that students can choose to engage in during the moment of silence....  As Justice O'Connor stated in her Wallace concurrence: 'It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren.'  None of the courts examining moment of silence statutes have found that the primary effect has been to advance or inhibit religion, and the Crofts point to no case law that supports their contentions."

  • Opinion from the 5th Circuit in Croft v. Perry

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.  Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.  ADF President Alan Sears is co-author with Craig Osten of the book The ACLU vs. America (

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