Koch responds that unlike Wallace and May, where there was no secular purpose justifying the moment of silence laws at issue, Illinois's period of silence law provided the secular purpose of having a uniform moment of quiet reflection to calm school children before they start the day. Thus, Koch claims, Section 1 passes constitutional muster, as do the Georgia, Virginia, and Texas moment of silence laws upheld by the Eleventh, Fourth and Fifth Circuits in Bown, v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997), Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001), and Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009). We agree.

A Purpose "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion" Lynch, 465 U S. at 690 (O'Connor, J., concurring) To survive this Establishment Clause challenge, the Sticker in dispute must have a "clearly secular purpose"Wallace, 472 U S at 56, Bown v. Gwinnett County Sch Dist, 112 F.3d 1464, 1469 (11th Cir 1997) However, the purpose of the Sticker "need not be exclusively secular." Bown, 112 F.3d at 1469 (citing Lynch, 465 U S at 681 n. 6) The Sticker runs afoul of the Establishment Clause only if it is "entirely motivated by a purpose to advance religion."

) (noting that "the slide away from Lemon 's unitary approach is well under way"); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup.Ct. Rev. 323, 361 (1996) (declaring that "now that Lemon lacks any defenders on the Court, other judges would perform a shallow exercise were they to continue to apply its terms. They should recognize that the Supreme Court has definitely abandoned Lemon."), it is still binding precedent, see Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n. 7, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (stating that "we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled"); see also Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1388 (11th Cir. 1993) (en banc) (explaining that "[a]lthough [the Lemon test] has been criticized severely, it still controls our Establishment Clause inquiry"); Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468-74 (11th Cir. 1997) (applying Lemon). A.

Id. at 253. In 1997, the Eleventh Circuit upheld a Georgia moment of silence statute in Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997). The statute allowed for a moment of silence, but specifically stated that it was not intended to be conducted as a religious service, and a preamble to the act stated that the purpose was to allow a moment of quiet reflection for students.

Additionally, the en banc court in Chabad-Lubavitch of Georgia v. Miller held that "although [ Lemon] has been criticized severely, it still controls our Establishment Clause inquiry." 5 F.3d 1383, 1388 (11th Cir. 1993) ( en banc); see also Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468-74 (11th Cir. 1997) (applying Lemon). Thus, we will conduct our Establishment Clause inquiry of the Duval County school system's policy under both Lee and Lemon.

Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quotation and citation omitted); see also Wallace v. Jaffree, 472 U.S. 38, 56 (1985). The government's purpose need not be exclusively secular, Lynch v. Donnelly, 465 U.S. 668, 681 and n. 6 (1984); Bown v. Gwinnett County Sch. Dist., 112 F.3d. 1464, 1469 (11th Cir. 1997), for a "[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation. . . .

If all three prongs are satisfied, the challenged state action survives constitutional scrutiny. Four key cases have applied the Lemon test to state-enacted "moment of silence" statutes: Wallace v. Jaffree, 472 U.S. 38 (1985); Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997); Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001); and May v. Cooperman, 780 F.2d 240 (3d. Cir. 1985). Jaffree and May invalidated the challenged moment of silence laws, and Brown and Bown upheld them.

Indeed, the preamble to the Virginia statute stands in stark contrast to the uncodified preamble to a moment of silence measure in Georgia, which was upheld by the Eleventh Circuit. See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997). The pre-amble to the Georgia statute explains that it was intended to provide students "a moment of quiet reflection before plunging headlong into the day's activities[,]" as a benefit to students and society.

It is instructive to compare the case before us with another moment-of-silence case in which we found that the Establishment Clause was not violated. In Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997), we held that a Georgia statute requiring public school teachers to observe a moment of silence each day in their classrooms did not violate the Lemon test. The statute had a secular purpose because it expressly declared that the "moment of quiet reflection . . . is not intended to be and shall not be conducted as a religious service or exercise but shall be conducted as an opportunity for a moment of silent reflection on the anticipated activities of the day."

It is too late to conduct discovery to learn the motives of the proponents of the amendment. The plaintiffs are stuck with the published legislative history, which in some cases would suffice to establish an intentional violation of the Constitution, see Edwards v. Aguillard, 482 US. 578, 587-93 (1987); id. at 599-602 (concurring opinion); Wallace v. Jaffree, 472 U.S. 38, 56-60 (1985); Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 268; see also Bown v. Gwinnett County School District, 112 F.3d 1464, 1471-72 (11th Cir. 1997) — but not in this case. All that the plaintiffs can hope to show at this late date, with the evidence they have or can obtain, is that the Democrats favored the at-large approach to electing supreme court justices in Cook County in the 1970 constitutional convention and that the approach has indeed favored Democratic candidates for those positions.