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Opinion No. 5323

June 29, 1978


Moments of silence at commencement of a meeting of a board of education

Freedom of religion


Moments of silence at commencement of a meeting of a board of education

The practice of calling for a moment of silence at the commencement of a meeting of a board of education does not violate any provision of the United States Constitution or the Michigan Constitution dealing with establishment of religion.

Honorable Tom Mathieu

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

Is the practice of calling for a moment of silence, at the commencement of a meeting of a board of education of a public school district, legal?

Your question must be considered in light of the provisions of both the United States Constitution and the Michigan Constitution dealing with the establishment of religion.

The First Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940), provides as follows:

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

A guarantee of religious freedom is also provided in this state by Const 1963, art 1, Sec. 4 which states:

'Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.'

The Michigan courts have ruled that Const 1963, art 1, Sec. 4 and the establishment and free exercise clauses of the First Amendment are subject to similar interpretation. Alexander v Bartlett, 14 Mich App 177, 182; 165 NW2d 445, 448 (1968); Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82, 105; 180 NW2d 265, 274 (1970).

Although careful research has failed to disclose any appellate decision ruling on the precise issue raised by your question, the United States Supreme Court has recognized that activities similar to those described in your question are part of the fabric of public life in this country and do not violate the constitution.

In Zorach v Clauson, 343 US 306; 72 S Ct 679; 96 L Ed 954 (1952), a case which upheld a released time program in New York, the Court stated:

'. . . There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the 'free exercise' of religion and an 'establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other--hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire portection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so held me God' in our courtroom oaths--these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious athiest or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'

. . . Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree. . . .'

343 US at 312-314; 72 S Ct at 683-684; 96 L Ed at 961-962

See also School District of Abington, v Schempp, 374 US 203; 83 S Ct 1560; 10 L Ed 2d 844 (1963).

It is, therefore, my opinion that the practice of calling for a moment of silence at the commencement of a public school board meeting is so similar to '[p]rayers in our legislative halls,' which has received the approval of the United States Supreme Court, that such a moment does not violate the First Amendment of the United States Constitution or Const 1963, art 1, Sec. 4.

Frank J. Kelley

Attorney General