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         March 24, 2010        

Appellate Court should legislate from the bench
to reverse General Assembly on
"Moment of Silence" law

The United States Court of Appeals for the Seventh Circuit should change the wording of the Illinois Student Prayer Act by adding a provision to the law which would permit students to reflect or mediate on any topic of their choosing.  Instead of the Appellate Court reversing the lower Court and allowing the present law to stand, the Appellate Court should, instead, legislate from the bench and reverse the Illinois General Assembly by amending the Student Prayer Act throuogh judicial fiat.

A mandatory law requiring a moment of silence to reflect or meditate on any topic is very bad policy, because it is a complete waste of time for both the students and the teachers.  Such a law, however, would not be unconstitutional.

The current law is unconstitutional.  It limits students to two very specific options:  Praying about any topic of their choosing for the superstitious kids (the ones who think that there is a super-natural entity floating around in the sky), or silently reflecting on only one government-selected topic for the smart kids.

As discussed in Monday's report, Senate Bill 1658 would change the Student Prayer Act ("Moment of Silence" law) to allow students to reflect or meditate on any topic of their choosing.  The Illinois General Assembly voted down Senate Bill 1658 on March 5th of last year and refused my request, this year, that they re-consider passing the Bill.  In so doing, the General Assembly has made it emphatically clear that their legislative intent is to not allow students to reflect or mediate on any topic of their choosing.

The General Assembly has also made it clear that, one way or another, Illinois is going to have a mandatory "Moment of Silence" law.  If we can't get the Legislature, themselves, to amend the law to make it constitutional, then the Appellate Court should take matters into their own hands and amend the law by legislating from the bench through judicial fiat.

Courts aren't supposed to legislate from the bench.  They are supposed to either affirm a law AS IS, or reject the law as unconstitutional.

Conservatives have long bemoaned legislating from the bench as unconstitutional judicial activism.  The Constitution doesn't allow it, but the Constitution also doesn't allow the government to advance religion by sneaking prayer into the public school classroom through a "Moment of Silence" law, as conservatives are constantly seeking to do.

If the Appellate Court changes the "Moment of Silence" law by legislating from the bench, there would be nothing that conservatives could do to stop it.  The only persons who could appeal that kind of decision to the Supreme Court would be my daughter and me -- not the other side -- but by legislating from the bench, we would have won, because the law would have been changed -- through legislating from the bench -- from unconstitutional to constitutional.  Kids would no longer be under pressure from the State government to pray in school.  Kids could do anything they want during that time.

Under the circumstances, described in yesterday's report, of having three Reagan appointees from Notre Dame deciding the case, there is no way that the Appellate Court will do the right thing and simply affirm the lower court's decision declaring that the Student Prayer Act is unconstitutional.  Since the Appellate Court is going to reverse somebody, they should reverse the General Assembly, rather than the lower Court.  They can do that by legislating from the bench.

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