Alex Luchenitser [Senior Litigation Counsel, Americans United for Separation of Church and State]: "Last week, the US Court of Appeals for the Fifth Circuit upheld an amendment to a Texas law that provides for a moment of silence in the public schools. The amendment changed the law by enumerating "pray" as one of the activities that students could engage in during the moment of silence.

The Fifth Circuit's ruling is troubling because of the narrow reading it gives to Supreme Court church-state precedents. The Supreme Court has held that government conduct is unconstitutional if its primary purpose is to advance religion. The principle issue in the case was whether the amendment to the Texas law satisfied this test.

The Fifth Circuit decided that the purpose of the whole amendment was what mattered, not the purpose of the enumeration of "pray" as a moment-of-silence activity. The amendment made a number of other changes, including requiring students to recite the pledges of allegiance to the US and Texas flags, and making the moment-of-silence mandatory instead of optional.

Relying on those changes, the Fifth Circuit concluded that the amendment's primary purposes were legitimate and secular: fostering patriotism, and providing a period for thoughtful contemplation. But those changes were not related to the addition of "pray," and those purposes do not explain why the legislature specifically chose to enumerate "pray."

Rather, there was considerable evidence in the legislative history that "pray" was added in order to promote prayer in schools. Indeed, another Texas statute had already given students a right to pray during the moment of silence, so the enumeration of "pray" in the amendment was quite unnecessary. But the Fifth Circuit was not persuaded by these facts, concluding that the Texas legislature's action was unconstitutional only if a religious purpose "permeated" the entire amendment.

It is easy to see how the Fifth Circuit's view of the law could eviscerate the constitutional requirement that legislatures not act with a religious purpose. In order to get away with passing a law that has a religious objective, all legislatures will need to do is include other provisions in the same legislation that have a non-religious purpose."