Moment of Silence: Constitutional Transparency and Judicial Control

The paper looks at the establishment of religion clause in the First Amendment to the US Constitution, and cases, e.g. Brown v. Gilmore, followed by Croft v. Perry and Sherman v. Koch, cases that relate to the concept of the "moment of silence" in educational institutions in which it was claimed that such events constitute a breach of the establishment clause. Courts have been inconsistent in their decision-making, which may indicate a lack of transparency not only in the interpretation of the relevant phrase in the Constitution but also in the judicial interpretation of the "three-pronged test" with regard to "excessive entanglement" as laid out in Lemon v. Kurtzman of 1971. The paper discusses the "moment of silence" within the framework of a model of silence in which this type of silence would be labeled as either textual or situational silence.