Lee v. Weisman

505 U.S. 577 (1992), argued 6 Nov. 1991, decided 24 June 1992 by vote of 5 to 4; Kennedy for the Court, Blackmun and Souter concurring, joined by Stevens and O'Connor, Scalia in dissent, joined by Rehnquist, White, and Thomas. Lee v. Weisman was the most important decision of the 1991–1992 term involving the much vexed question of the role of religion in American life.

The case involved the practice by the Nathan Bishop Middle School of Providence, Rhode Island, of inviting members of the clergy to offer prayers at graduation ceremonies. In this instance, a student, Deborah Weisman, and her father, Daniel, who were Jewish, filed suit in 1989 after a rabbi offered an invocation and benediction at Bishop Middle School that Deborah attended. The rabbi's simple prayer had thanked God for the liberty that America enjoyed and asked for God's blessing on the teachers, students, and administrators of the school. The Weismans claimed that the school had essentially turned itself into a house of worship, and their position was supported by the American Civil Liberties Union.

The federal district court in Providence and the United States Court of Appeals for the First Circuit in Boston found the prayers unconstitutional. They did so based on the Supreme Court's ruling in Lemon v. Kurtzman (1971), in which the justices established a three‐part test for deciding whether a government‐sponsored religious event violated the Establishment Clause of the Constitution. That highly controversial test required that in order to pass constitutional muster, the practice had to have a secular purpose, could not primarily advance or inhibit religion, and had to avoid any excessive entanglements of government and religion. The administration of President George W. Bush had urged the Court to sustain the practice of the Providence schools and overturn Lemon and its test.

Justice Anthony M. Kennedy's opinion for the Court skirted Lemon and with it the need to establish a new standard of review. Prayer in the public schools was so obviously a violation of the Establishment Clause, Kennedy found, that Weisman could be decided without reexamining the Court's other church‐state precedents. At the same time, Kennedy carefully stated that the decision to strike down the prayer activities in the Providence schools did not necessarily apply in cases that might involve adults. Kennedy also insisted that the First Amendment's Establishment Clause was just as important in the twentieth century as it was when written in the eighteenth century. If citizens are subjected “to state‐sponsored religious exercises,” he wrote, the government itself fails in its “duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people” (p. 592).

Justice Antonin Scalia authored a sarcastic, angry dissent. He scolded the majority for worrying about the mental state of adolescents who most likely simply ignored the prayer in any case. More important, Scalia wrote, was the accepted practice of using prayer to bring persons together voluntarily, a practice that the government and school boards should be able to promote.

— Kermit L. Hall

TABLE OF CONTENTS

1. Opinion of the District Court for the District of Rhode Island, January 9, 1990

2. Opinion of the Court of Appeals for the First Circuit, July 23, 1990

3. Briefs to the Supreme Court

3.1. Reply Brief for the Petitioners

3.2. Respondent's Brief

3.3. Brief for the Petitioners

4. Opinion of the Supreme Court, June 24, 1992

ISSUE

Religion

HOW TO USE MILESTONES IN THE LAW

In this section, the reader is invited to study the court opinions and the briefs of the parties in a case addressing the vitality of religious tradition in the ceremonies of public institutions. As you read these materials, you may wish to consider the following questions:

• How much significance should courts place on tradition (other than legal precedent) when interpreting present day constitutional issues?
• Should courts consider the beliefs of the Founders of the United States, apart from those expressed in the Constitution, in rendering opinions?
• How did the Supreme Court's approach to Establishment Clause cases change with this opinion?
• After reading the Supreme Court's opinion, can you see a way that a prayer could be offered at a public school graduation ceremony without violating Lee v. Weisman?

THIS CASE IN HISTORY

The proper relationship between religion and government is a question that has divided society and the courts, and fueled contentious political battles, since before the founding of the United States. Often this question surfaces in the context of schools, where tradition can have as much significance as religion in the lives of parents, students, and school personnel. In Lee v. Weisman, the Court was asked to decide whether a school-sponsored nondenominational prayer given at a high school graduation ceremony violated the Establishment Clause of the First Amendment. By a decision of 5-4, the Supreme Court ruled that such a prayer was unconstitutional. The division of opinion on the Court was mirrored in public schools, where parents, students, and school officials either praised, or sought to circumvent, the decision.

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Weisman v. Lee

Cite as 908 F.2d 1090 (1st Cir. 1990)

Daniel Weisman, etc., Plaintiff, Appellee,

v.

Robert E. Lee, et al., Defendants, Appellants.

No. 90-1151.

United States Court of Appeals, First Circuit.

Heard May 10, 1990.

Decided July 23, 1990.

Public school student and her father brought suit seeking permanent injunction to prevent inclusion of invocations and benedictions in form of prayer in promotion and graduation ceremonies of city public schools. The United States District Court for the District of Rhode Island, 728 F.Supp. 68, Francis J. Boyle, Chief Judge, granted relief, and appeal was taken. The Court of Appeals, Torruella, Circuit Judge, held that benediction invoking deity delivered by member of clergy at annual public school graduation violated establishment clause of the First Amendment.

Affirmed.

Bownes, Senior Circuit Judge, concurred and filed opinion.

Levin H. Campbell, Circuit Judge, dissented and filed opinion.

Joseph A. Rotella, Providence, R.I., for defendants, appellants.

Sandra A. Blanding, Warwick, R.I., for plaintiff, appellee.

Before Campbell and Torruella, Circuit Judges, and Bownes, Senior Circuit Judge.

Torruella, Circuit Judge.

This is an appeal from the United States District Court for the District of Rhode Island. The issue presented for review is whether a benediction invoking a deity delivered by a member of the clergy at an annual public school graduation violates the Establishment Clause of the First Amendment of the Constitution as construed by the Supreme Court under the second prong of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). The district court held that it did. 728 F.Supp. 68 (D.R.I.1990).

We are in agreement with the sound and pellucid opinion of the district court and see no reason to elaborate further.

Affirmed.

Bownes, Senior Circuit Judge (concurring).

Although the district court wrote a very good opinion, which I join in affirming, I am compelled to make some additional comments of my own because of the significance of this case and the strong emotions that it and other Establishment Clause cases generate.

Over three hundred and fifty years ago, Roger Williams was banished from the Massachusetts Bay Colony for, among other "heresies," arguing that the civil government should be completely separate from religion. He travelled south and founded what became the state of Rhode Island, which was the first colony to require the separation of church and state. Since that time the people of Rhode Island have been sporadically involved in probing the permissible intersections between religion and government. See, e.g., Lunch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (deciding Robinson v. DiCenso). Once again this volatile and troublesome issue is before us.

We are asked to determine whether the Establishment Clause prohibits public prayer at a public middle school graduation ceremony. Broadly, this requires us to examine the text of the Constitution and interpret its meaning based on the various tools of constitutional analysis. In its narrowest aspect, we must examine Supreme Court Establishment clause precedent to determine whether a prayer at a middle school graduation ceremony is similar enough to prayer in the classroom to be controlled by the Court's cases prohibiting school prayer. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (daily moment of silence expressly for prayer); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (posting of ten commandments in school rooms); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (daily Bible reading); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (daily prayer). Appellants claim that a graduation benediction is more like the legislative prayer approved in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and therefore the school prayer cases are not controlling.

1. The Text of the Constitution.

I begin my discussion with an examination of the text of the Constitution. Unlike earlier of the text of the Constitution. Unlike earlier political documents, such as the Declaration of Independence, the Constitution is completely secular, neither invoking nor referring to "God" or any deity. The First Amendment prohibits "laws respecting the establishment of religion." U.S. Const. amend. I.

The scope of that prohibition has proven extremely difficult to delineate and implement in contemporary society. The words of the Amendment give us some indication of its meaning. The use of the word "respecting" indicates that a broader sweep should be given to "establishment,." thus prohibiting many actions that could lead to the establishment of religion. County of Allegheny v. ACLU, — U.S. —, 109 S.Ct. 3086, 3130, 106 L.Ed.2d 472 (1989) (Stevens, J., concurring in part, dissenting in part) ("'Respecting' means concerning or with reference to. But it also means with respect—that is 'reverence,' 'good-will,'. . . . Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion."); see also Lemon, 403 U.S. at 612, 91 S.Ct. at 2111; Engel, 370 U.S. at 436, 82 S.Ct. at 1269. In addition, the use of "religion" rather than "church" implies a prohibition against more than merely an established national church. See, e.g., Everson, 330 U.S. at 31, 67 S.Ct. at 519 ("Madison could not have confused 'church' and 'religion' or 'an established church' and an establishment of religion.'"). Beyond these preliminary inquiries, the "plain meaning of the text is of little help in determining results in this case, so we must turn to the interpretation and practice that has evolved throughout the past two hundred years.

In trying to create meaning from the Establishment Clause, courts and commentators have constructed various historical argument. But historians have decidedly mixed views about what "establishment" meant to the framers. Judges and historians have been unable to agree about what ideas informed the writing of the Constitution, what exactly occurred in the debates surrounding ratification (the specific intent of the framers), or what impact the "religious character" of various post-ratification practices should have on the meaning we give to the Constitution.

The Court has spent considerable time considering and debating the history of the religion clauses, and each time the results have been inconclusive. Compare Wallace, 472 U.S. at 79-84, 105 S.Ct. at 2501-04 (O'Connor, J., concurring) ("The primary issue raised by Justice Rehnquist's dissent is whether the historical fact that our Presidents have long called for public prayers of thanks should be dispositive on the constitutionality of prayers in the public schools. I think not.") with Wallace 472 U.S. at 91-114, 105 S.Ct. at 2507-19 (Rehnquist, J., dissenting); compare Marsh, 463 U.S. at 786-92, 103 S.Ct. at 3333-36 with Marsh, 463 U.S. at 813-17, 103 S.Ct. at 3347-49 (Brennan, J., dissenting) (discussing the extent to which the practices of the First Congress reveal the intent behind and support interpretations of the Constitution); compare Everson, 330 U.S. at 8-16, 507-12 with Everson, 330 U.S. at 28-43, 67 S.Ct. at 517-25 (Rutledge, J., dissenting); see also Engel, 370 U.S. at 425-30, 82 S.Ct. at 1264-67. See generally Abington, 374 U.S. at 232-65, 83 S.Ct. at 1576-94 (Brennan, J., concurring) (scholarly discussion of the role of the history in interpreting the Establishment Clause). It is useless to rehash this continuing debate. The ground has been trodden so much that it is barren of meaning and persuasive power. The "historical record" is inconclusive on the various cross-currents in the minds of the framers. Because of the tangled and often conflicting historical record, it is unlikely that, as an empirical matter, we can ever know the original intention of the authors of the Constitution. Even if we could reconstruct the framers' intent, that would not necessarily be determinative in this case, given our two hundred years of experience with the Constitution and changing circumstances. See, e.g., County of Allegheny, 109 S. Ct. at 3099 ("Perhaps in the early days of the republic [the prohibitions of the Establishment Clause] were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism" (quotation and citation omitted)). See generally Abington, 374 U.S. at 232-65, 83 S.Ct. at 1576-94 (Brennan, J., concurring); T. Jefferson, Autobiography reprinted in The Founders' Constitution 85 ("The bill for establishing religious freedom. . . meant to [include] within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo and Infidel of every denomination."). An additional facet of the problem of framers' intent is what was the framers' intention about their intent. Scholars have argued that the original intention of the framers was that their intentions were irrelevant to interpreting the Constitution. See, e.g., H.J. Powell, The Original Understanding of Original Intention, 98 Harv.L.Rev. 885 (1985)

2. The School Prayer Cases.

Although the Court may have sent confusing signals on the theoretical or historical underpinnings of the Establishment Clause, it has strictly and consistently interpreted the prohibitions of the Establishment Clause in cases involving prayer in the public schools. The Court

has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student or his or her family.

Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987). The Court has consistently struck down laws or practices that allow or mandate forms of prayer in the schools, and it has never allowed a prayer at a formal school function. But see Board of Education v. Mergens, — U.S. —, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (allowing Christian club as voluntary extracurricular activity at public school).

The appellants argue that this case is not controlled by the school prayer cases because graduation attendance is voluntary, graduation sometimes takes place off-campus, and its occurs only once a year. They contend that the prayers are acceptable under either the prevailing Lemon test or under the exception to that standard delineated in Marsh v. Chambers. Such arguments have been rejected by other courts. See, e.g., Jager v. Douglas County School District, 862 F.2d 824 (11th Cir.1989) (prohibiting prayer before high school football game and rejecting the use of Marsh), cert. denied,— U.S. —, 109 S.Ct. 2431, 104 LEd.2d 988 (1989); Graham v. Central Community School Dist., 608 F.Supp. 531 (D.Iowa 1985) (prohibiting prayer at high school graduation and rejecting application of Marsh); see also Schempp, 374 U.S. at 224-25, 83 S.Ct. at 1572-73 ("[T]he fact that individual students may absent themselves . . . furnishes no defense to a claim of unconstitutionality under the Establishment Clause."); Engel, 370 U.S. at 430, 82 S. Ct. at 1266 ("[T]he fact that the [prayer] on the part of students is voluntary can[not] serve to free it from the limitations of the Establishment clause.")

3. The Lemon Test.

In evaluating the acceptability of practices under the Establishment clause, the Court has generally applied a derivative of the three-pronged "Lemon" test:

First, the [practice] must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster 'an excessive government entanglement with religion.'

Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971) (citations omitted). A practice or statute that fails to meet any of these requirements violates the Establishment Clause. See Edwards, 482 U.S. at 583, 107 S.Ct. at 2577. Only one Establishment Clause case since Lemon has not applied some form of this test. Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 (1987) (referring to Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), which did not involve public schools); see also County of Allegheny v. ACLU, — U.S. —, 109 S.Ct. 3086, 3100 n. 4, 106 L.Ed.2d 472 (1989) (collecting cases that have used Lemon test); Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985) ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children.")

The district court properly and carefully applied this test and determined that the practice of invocations and benedictions at school graduations ran afoul of the second, "effect," prong of the Lemon test.

A. Secular Purpose

The secular purpose prong of Lemon requires us to determine whether the predominant purpose of the practice in question is secular. The question is not whether there is or could be any secular purpose, but rather whether the actual predominant purpose is to endorse religion. Wallace, 472 U.S. at 56, 105 S.Ct. at 2489; see also Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 ("The purpose prong . . . asks whether the government's actual purpose is to endorse or disapprove of religion."). That requirement "is precisely tailored to the Establishment Clause's purpose of assuring that Government not intentionally endorse religion or religious practice." Wallace, 472 U.S. at 75, 105 S.Ct. at 2499 (O'Connor, J., concurring). In examining the secular purpose, the Court has examined whether the stated purpose is "sincere and not a sham." See, e.g., Edwards, 482 U.S. at 587, 107 S.Ct. at 2579 (Louisiana's creation science act, although purporting to foster "academic freedom," in fact did not have a secular purpose); Stone, 449 U.S. at 41, 101 S.Ct. at 193 ("[T]he Ten Commandments are undeniably a sacred text in the Jewish and Christian Faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.").

Although reciting a prayer before a graduation ceremony might, as appellants argue, have the residual sectarian effects of solemnizing the occasion, the primary purpose is religious. Specifically invoking the name and the blessing of "God" on the graduation ceremony is a supplication and thanks to "God" for the academic achievement represented by the graduation and a hope for the continuation of such good fortune. It does not serve a purely or predominantly solemnizing function. A graduation ceremony does not need a prayer to solemnize it.

B. Secular Effect

Justice O'Connor has tried to focus the secular effect discussion on the government's endorsement of religion: "What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion." , Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O'Connor, J., concurring). As the district court held, it is self-evident that a prayer given by a religious person chosen by public school teachers communicates a message of government endorsement of religion.

C. Excessive Entanglement

The excessive entanglement prong prohibits actions that "may interfere with the independence of institutions." Lynch, 465 U.S. at 667, 104 S.Ct. at 1355 (O'Connor, J., concurring). In particular, this prong is concerned with the state impermissibly monitoring or overseeing religious affairs. Marsh, 463 U.S. at 798-99, 103 S.Ct. at 3339-40 (citing Lemon, 403 U.S. at 614-22, 91 S.Ct. at 2112-16). For example, the Court struck down a provision of a zoning ordinance that allowed churches "veto" power over liquor licenses within 500 feet of the church. Larkin v. Grendel's Den, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). Implicit in this prong, and central to any understanding of the First Amendment, is the belief that the government should not become involved with the determination of religious practice.

Although neither party strongly advances arguments on this prong, I am struck by the instances of entanglement in this case. In Jager, the court found no entanglement problem because the school did not monitor the content of the prayers or choose the speaker. Jager, 862 F.2d at 831. Here school officials did both. Appellants make much of the fact that the school has chosen to give a suitably non-denominational prayer because school officials distributed a pamphlet entitled "Guidelines for Civic Occasions." These guidelines suggest what kind of prayers should be written. This supervision of the content of the prayers by the school officials implicates the entanglement prong. The school is impermissibly involved in regulating the content of the prayer. In addition, unlike both Stein and Jager, school teachers chose the speaker who gave the prayer at graduation. This has the effect of involving those teachers in choosing among various religious groups, and activity that is surely prohibited by the Establishment Clause.

4. Marsh

Recognizing the strictness of the Lemon test, the appellants urge that we follow the limited exception to the application of the test delineated in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In Marsh, the Supreme Court upheld the practice of the Nebraska Legislature to begin each legislative session with a prayer.Marsh was based on the "unique" and specific historical argument that the framers did not find legislative prayers offensive to the Constitution because the first Congress approved of legislative prayers. Marsh, 463 U.S. at 791, 103 S.Ct. at 3335.

That history and those special circumstances are not present at middle school graduations. The Court has specifically stated that "[s]uch a historical approach is not useful in determining the proper roles of church and state in public schools, since free public schools were virtually non-existent at the time the Constitution was adopted." Edwards, 482 U.S. at 583 n. 4, 107 S.Ct. at 2577 n. 4; Grand Rapids School Dist. v. Ball, 473 U.S. 373, 390 n. 9, 105 S.Ct. 3216, 3226 n. 9, 87 L.Ed.2d 267 (1983) (the Court has "never indulged a similar assumption [to Marsh] with respect to prayers conducted at the opening of the school day."); see also Jager v. Douglas County School Dist., 862 F.2d 824 (11th Cir.1989) (recognizing that Marsh is inapplicable to school invocations); Graham v. Central Community School, 608 F.Supp. 531, 535 (D.Iowa) (same); but see Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987) (apparently applying Marsh exception in the context of school invocations/ benedictions but still finding Establishment Clause violation).

A number of differences between this case and Marsh reinforce my view that Marsh is inapplicable to school prayer cases. Middle school students are at a very different stage in their development and relationship to prayers than state legislators. The legislators are able to debate and vote on whether and where to have prayers; students have the prayers imposed upon them. Appellants argue that because this is only a once-a-year occurrence it does not implicate the Establishment Clause the way daily prayers do. I disagree. Because graduation represents the culmination of years of schooling and is the school's final word to the students, the prayer is highlighted and takes on special significance at graduation.

The Stein decision does not help the appellants. In Stein, a Sixth Circuit panel struck down a school invocation and benediction as violating the Establishment Clause. Stein, 822 F.2d 1406 (6th Cir. 1987). Each judge wrote an opinion. Judge Merritt, in the court's opinion, thought that the Marsh exception applied to school prayer but held that the content of the prayer in question violated the Establishment Clause because it was not sufficiently non-denominational. Judge Milburn concurred in result but added that the Lemon test should be applied in examining the invocations and benedictions. Judge Wellford dissented, stating that the Lemon test should be applied and that under that test the prayer before the court was acceptable. Such a split in the panel, particularly when the result is contrary to what the appellants seek, is not persuasive authority.

In addition, the analysis of the judges in the majority, in which they parse through the content of the prayers to determine if they are not too offensive, is troubling. The court prohibited the specific prayer because "the language says to some parents and students: we do not recognize your religious beliefs, our beliefs are superior to yours." Stein, 822 F.2d at 1410. But the judges imply that some prayers are denominationally neutral enough to offend no one. Such a prayer would be acceptable, under the court's view in Stein, under the Establishment Clause. This, I suggest, would be contrary to the teachings of the Court. See Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 ("[T]he fact that the prayer may be denominationally neutral . . . can [not] serve to free it from the limitations of the Establishment Clause"). Such a prayer would also be extremely difficult, if not impossible, to compose. See Marsh, 463 U.S. at 819-21, 103 S.Ct. at 3350-51 (Brennan, J., dissenting) (cataloguing the problems with creating a non-denominational prayer).

Judges should not be passing on the acceptability of specific passages in prayers. See, e.g., Marsh, 463 U.S. at 794, 103 S.Ct. at 3337 ("The content of the prayer is not of concern to judges."). The ruling in Stein invites parents and student to review prayers to determine if the content is sufficiently neutral. That creates more rather than less religious friction by encouraging individuals to debate the content of prayers.

5. The Use of a Deity.

The district court made some statements in the course of its opinion that were in the same vein as the Stein court's discussion of non-denominational prayer. Relying on the fact that the invocation and benediction referred to a deity, the court stated that if "God" "had been left out of the benediction . . .the Establishment Clause would not be implicated." Weisman v. Lee, 728 F.Supp. 68, 74 (D.R.I.1990). This, in my opinion, is too literal and narrow an interpretation of prayer and of what is acceptable under the Constitution. The Constitution prohibits prayer in public schools and not merely references to a deity. An invocation (literally invoking the name of God over the proceeding) and a benediction (blessing the proceedings) are by their very terms prayers and religious. A benediction or invocation offends the First Amendment even if the words of the invocation or benediction are somehow manipulated so that a deity is not mentioned. See, e.g., Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir.1981), aff'd., 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982) ("[P]rayer is perhaps the quintessential religious practice for many of the world's faiths . . . [it is] an address of entreaty, supplication, praise, or thanksgiving directed toward some sacred or divine spirit, being or object."). Although I think it is probably impossible to pray without invoking a deity directly or indirectly, the direct reference to a deity should not be the constitutional touchstone for our analysis.

In sum, as Justice Black stated long ago, the 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another.

Everson, 330 U.S. at 15, 67 S.Ct. at 511. By having benedictions and invocations at school graduations, the Providence School District has violated the Establishment Clause. I concur in affirming the opinion of the district court.

Campbell, Circuit Judge (dissenting).

As Judge Torruella states, Chief Judge Boyle's opinion for the district court is indeed "sound and pellucid," in that it expresses well what may be the Supreme Court's ultimate view in this confused area of the law. I say "may." As indicted below, I prefer another view but an aware that the district court's position may be more in keeping with Supreme Court consensus.

I am less amenable to Judge Bownes' reasoning. His seems to me an extreme position, especially his view that a benediction would offend the First Amendment even if a deity were not even mentioned. Judge Bownes would apparently strike down the benediction suggested by the district court (which uses the same words as the challenged prayer, but omits all references to God). That version reads in part, as follows: "For the legacy of America where diversity is celebrated and the rights of minorities are protected we are thankful . . . May our aspirations for out country and for these young people, who are our hope for the future , try and for these young people, who are our hope for the future, be richly fulfilled." See Weisman v. Lee, 728 F. Supp. at 74-75, n. 10. It is difficult to see why this would violate the Establishment Clause. The First Amendment prohibits the making of a law "respecting an establishment of religion, or prohibiting the free exercise thereof." What is there so religious about expressing thanks for diversity and for the protection of minority rights? Is Thanksgiving a forbidden rite? Must courts outlaw the public reading of Walt Whitman or Keats's "Ode on a Grecian Urn"?

These extreme views of my colleague suggest the problems that inhere in banning invocations-including those that mention a deity. By so doing we deprive people of an uplifting message that seems especially suitable for a rite of passage like a graduation, where those present wish to give deeply felt thanks. Out First Amendment jurisprudence normally protects speech rather than suppressing it. It seems anomalous to outlaw Rabbi Gutterman's tolerant, benign, nonsectarian supplication—a message so entirely appropriate in that setting, and surely inoffensive to virtually all of those present.

If one were to ask people what are the problems of our time, they would hardly respond that our youth and their parents are being corrupted by over-exposure to noble aspirations of this character. The common complaints are that 13 year old children are selling crack; that instead of doing homework, students are watching violent TV; that the tolerant ideals mentioned by the rabbi are being rejected in favor of destructive habits of mind and character. So what good, one might ask, is accomplished by preventing an invocation like this?

The answer, of course, is that we are also concerned to preserve the separation of church and state—a fundamental tenet of our Constitution, the benefits of which are undisputed. One need only look at Lebanon, Iran, and Northern Ireland to see what evils this tenet seeks to avoid.

Yet the question remains, is it necessary—to preserve separation of church and state—to prevent benedictions and invocations of this generous, inclusive sort. There is a tradition of such remarks at public functions going back to the Founders. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (sustaining prayer at opening of state legislature's session). It seems unreasonable to say that Marsh applies only to state legislative sessions. One would expect it to cover other public meetings. If so, it may extend to a graduation ceremony like this. See Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987) (upholding nonsectarian prayers at a public school graduation). Chief Judge Boyle, nonetheless rejected the Stein and the Marsh was strictly limited to a legislative session, he also believed that prayer at a graduation ceremony was more analogous to prohibited school prayer than to prayer at a legislative session. He further feared church-state entanglement if courts must determine what prayers are nonsectarian enough to pass muster.

I am troubled most by Chief Judge Boyle's last point. Still, it seems reasonably simple to separate out sectarian form nonsectarian utterances. I suspect that most Americans of all persuasions—including the increasing numbers who adhere to religions or ethical systems outside the Judeo-Christian framework—find it is appropriate and meaningful for public speakers to invoke the deity not as an expression of a particular sectarian belief but as an expression of transcendent values and of the mystery and idealism so absent from much of modern culture.

I think that Marsh and Stein provide a reasonable basis for a rule allowing invocations and benedictions on public, ceremonial occasions, provided authorities have a well-defined program for ensuring, on a rotatiing basis, that persons representative of a wide range of beliefs and ethical systems are invited to give the invocation. The rule should make provision not only for representatives of the Judeo-Christian religions to give the invocation, but for representatives of other religions and of nonreligious ethical philosophies to do so. In some years, lay persons who do not represent any organized religion or philosophy might be asked to give a nonreligious invocation. The possibility exists, of course, that a particular audience might occasionally be exposed to a prayer redolent of a particular religious tradition, but the next year a different invocation would be given—perhaps by an agnostic. In brief, I think the First Amendment values are more richly and satisfactorily served by inclusiveness than by barring altogether a practice most people wish to have preserved.

It appears, both from the sensitivity of the delivered prayer and the nonsectarian guidelines drawn up by the Assistant Superintendent, that the Providence School Committee went some distance to ensure that different faiths were included and that prayers were nonsectarian. It may be, however, that even more needs to be done, to ensure not only that the state does not identify itself with a particular religion but with religion generally. If so, I would simply require the Committee to broaden its rules as above suggested, and, otherwise, to continue to permit invocations and benedictions of diverse character at high school and middle school graduations.

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Weisman v. Lee

Cite as 728 F.Supp. 68 (D.R.I. 1990)

Daniel Weisman, personally and as next friend of Deborah Weisman

v.

Robert E. Lee, individually and as principal of the Nathan Bishop Middle School; Thomas Mezzanotte, individually and as principal of Classical High School; Joseph Almagno, individually and as Superintendent of the Providence School Department; Vincent McWilliams; Robert DeRobbio; Mary Batastini; Albert Lepore; Roosevelt Benton; Mary Smith Anthony Caprio; Bruce Sundlun and Roberto Gonzalez, individually and as members of the Providence School Committee.

Civ. A. No. 89-0377B.

United States District Court,

D. Rhode Island.

Jan. 9, 1990.

Public school student and her father brought suit seeking a permanent injunction to prevent the inclusion of invocations and benedictions in the form of prayer in the promotion and graduation ceremonies of city public schools. The District Court, Francis J. Boyle, Chief Judge, held that benediction or invocation delivered by clergy at an annual public school graduation ceremony violates the establishment clause of the First Amendment, if the benediction or invocation invokes a deity.

So ordered.

Benediction or invocation delivered by clergy at an annual public school graduation ceremony violates the establishment clause of the First Amendment, if the benediction or invocation invokes a deity; practice of having such a benediction or invocation delivered at public school graduation ceremonies has the effect of advancing religion. U.S.C.A. Const.Amend. 1.

Sandra A. Blanding, Revens & DeLuca, Ltd., Warwick, R.I., for plaintiffs.

Joseph A. Rotella, Providence, R.I., for defendants.

Amy Adelson, Lois Waldman, Marc D. Stern, Jeremy S. Garber, New York City, amicus curiae for American Jewish Congress.

OPINION

Francis J. Boyle, Chief Judge.

The issue presented is whether a benediction or invocation which invokes a deity delivered by clergy at an annual public school graduation ceremony violates the first amendment of the United States constitution. This Court finds that because a deity is invoked, the practice is unconstitutional under the Establishment Clause of the first amendment as construed by the United States Supreme Court.

I Facts1

Each June, the Providence School Committee and Superintendent of Schools for the City of Providence sponsor graduation or promotion ceremonies in the city's public middle and high schools. The graduation ceremonies for high school students are generally held off school grounds, usually at Veterans Memorial Auditorium, which the Providence School Department rents for the occasion. Other sites have also been used. Middle school promotion ceremonies usually take place on school property, at the schools themselves.

The Providence School Committee and the Superintendent permit public school principals to include invocations and benedictions, delivered by clergy, in the graduation and promotion ceremonies. Over the past five or six years, most, but not all, of the public school graduation and promotion ceremonies have included invocations and benedictions. The practice has in fact been followed for many years.

The Assistant Superintendent of Schools has distributed to school principals a pamphlet entitled "Guidelines for Civic Occasions" as a guideline for the type of prayers to be used at the ceremonies. The pamphlet is prepared by the National Conference of Christian and Jews, a national organization with an office in Providence. The guidelines suggest methods of composing "public prayer in a puralistic society," stressing "inclusiveness and sensitivity" in the structuring of non-sectarian prayer. The guidelines do not suggest the elimination of reference to a deity as appropriate.

Plaintiff Daniel Weisman's daughter, Deborah, was to graduate from Nathan Bishop Middle School, a public junior high school in Providence, in June of 1989. The ceremony was planned by two teachers from the school, and was to be held on the school grounds. Part of the program for that day included an invocation and benediction delivered by Rabbi Leslie Gutterman of the Temple Beth El of Providence. Four days before the ceremony was to take place, Plaintiff filed a motion for a temporary restraining order seeking to prevent the inclusion of prayer to a deity in the form of an invocation and benediction in the Providence public schools' graduation ceremonies. The day before the ceremony, this Court denied the Plaintiff's motion, essentially because the Court was not afforded adequate time to consider the important issues of the case.

On June 20, 1989, Deborah Weisman and her family attended the graduation ceremony for Deborah's class at Bishop Middle School. The principal of the school, Robert E. Lee, had received the "Guidelines for Civic Occasions" pamphlet from the Assistant Superintendent of Schools, and provided Rabbi Gutterman with a copy of the guidelines. Mr. Lee also spoke to Rabbi Gutterman to advise him that any prayers delivered at the ceremonies should be nonsectarian. Rabbi Gutterman was not told that he could not appeal to a deity.

Rabbi Gutterman began his invocation by addressing a deity in the first line of his text, and concluded with "Amen."2 The benediction similarly opened with an appeal to a God, asked God's blessings, gave thanks to a Lord, and concluded with "Amen."3 The parties agree that Rabbi Gutterman's invocation and benediction were prayers.4

Deborah Weisman continues to attend public school in the city of Providence. She is now a freshman at Classical High School in Providence. Plantiff now seeks a permanent injunction to prevent the inclusion of invocations and benedictions in the form of prayer in the promotion and graduation ceremonies of the Providence public schools. Plaintiff's amended complaint names Principal Lee, the superintendent of Providence public schools, the principal of Classical High School, and the members of the Providence School Committee as defendants.

The parties agree resolution of the case is governed by the first amendment of the United States Constitution, specifically the Establishment Clause.5 It is to that law that we now turn.

II. The Establishment Clause

"The [Supreme] Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). Since the landmark 1962 decision of Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Supreme Court has steadfastly required that the schoolchildren of America not be compelled, coerced, or subtly pressured to engage in activities whose predominant purpose or effect was to advance one set of religious beliefs over another, or to prefer a set of religious beliefs over no religion at all.6 God has been ruled out of public education as an instrument of inspiration or consolation.

This vigilance is based upon the perceived sensitive nature of the school environment and the apprehended effect of state-led religious activity on young, impressionable minds. Grand Rapids School District v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); Edwards, 482 U.S. at 584, 107 S.Ct. at 2577. "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Edwards, 482 U.S. at 584, 107 S.Ct. at 2577.

Under the Establishment Clause, the Court has struck down state statutes that required a daily Bible reading before class (Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), or required that a copy of the Ten Commandments be posted in every classroom (Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)), or required the recitation of a "denominationally neutral" prayer at the beginning of the school day (Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)), or statutes which authorized a daily moment of silence expressly for prayer (Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)). In virtually all of these cases, the Court acknowledged that while "[w]e are a religious people whose institutions presuppose a Supreme Being," Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952)), the Establishment Clause of the first amendment was intended to prevent a State from becoming involved in leading its citizens, however young, in appeals to or adoration of a deity.

The Supreme Court "consistently has applied the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) to determine whether a particular state action violates the Establishment Clause of the Constitution." Edwards, 482 U.S. at 597, 107 S.Ct. at 2584 (Powell, J. concurring); Grand Rapids School District, 473 U.S. at 383, 105 S.Ct. at 3222 (1985) ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children"). An evaluation of the authorized practice of the Providence School Committee under the Lemon test is necessary, "mindful of the particular concerns that arise in the context of public elementary and secondary schools." Edwards, 482 U.S. at 585, 107 S.Ct. at 2578.

III. The Lemon Test

The Lemon test reviews governmental actions using three prongs: "First, the [practice] must have a secular ... purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [third], the [practice] must not foster 'an excessive entanglement with religion.'"Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted). "State action violates the Establishment Clause if it fails to satisfy any of these prongs." Edwards, 482 U.S. at 583, 107 S.Ct. at 2577.

The second prong of the Lemon analysis examines whether the effect of the action violates the Establishment Clause. It is here that the invocation and benediction practice runs afoul of the first amendment. Because this Court finds that the Providence School Committee's practice fails to meet constitutional scrutiny under the second prong of theLemon test, it is not necessary to discuss the first and third parts of the test.

The Second Lemon Prong: Principal Effect Must Neither Advance Nor Inhibit Religion.

One method of determining whether a state action advances or inhibits religion is to determine whether the action creates an identification of the state with a religion, or with religion in general. "Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any—or all—religious denominations as when it attempts to inculcate specific religious doctrines." Grand Rapids School District, 473 U.S. at 389, 105 S.Ct. at 3225.

The particular circumstances of each government action are critical in the examination of the effect that any church-state identification may have on its audience. For example, in Grand Rapids School District v. Ball, the Court distinguished between two of its earlier precedents. In McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), the Court held that religious instruction could not be held on public school premises as a part of the school program, even though the instruction was conducted by non-public school personnel and participation was voluntary. In Zorach v. Clauson, however, the Court held that a similar program that was conducted off school premises passed constitutional scrutiny. 341 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). As the Court explained inGrand Rapids, "[t]he difference in symbolic impact helps to explain the difference between the cases. The symbolic connection of church and state in the McCollum program presented the students with a graphic symbol of the 'concert or union or dependency' of church and state ... This very symbolic union was conspicuously absent in the Zorach program." Grand Rapids School District, 473 U.S. at 391, 105 S.Ct. at 3226.

Similarly, in Grand Rapids School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), the Court invalidated a "Shared Time" program in which a school district provided classes to nonpublic school students at public expense in classrooms located in and leased from the nonpublic schools. The Court emphasized that students attending both public and nonpublic schools within the same building "would be unlikely to discern the crucial difference between the religious school classes and the 'public school' classes...." 473 U.S. at 391, 105 S.Ct. at 3226. The Court pointed out that even the students who were able to recognize the difference between the two classes "would have before [them] a powerful symbol of state endorsement and encouragement of the religious beliefs taught in the same class at some other time during the day." Id, at 392, 105 S.Ct. at 3227.

In this case, the benediction and invocation advance religion by creating an identification of school with a deity, and therefore religion. The invocation and benediction present a "symbolic union" of the state and schools with religion and religious practices. While the fact that graduation is a special occasion distinguishes this school day from all others, the uniqueness of the day could highlight the particular effect that the benediction and invocation may have on the students. The presence of clerics is not by itself determinative. It is the union of prayer, school, and important occasion that creates an identification of religion with the school function. The special nature of the graduation ceremonies underscores the identification that Providence public school students can make.7 "This effect -the symbolic union of government and religion in one sectarian enterprise—is an impermissible effect under the Establishment Clause." Id.

Closely related to the identification analysis is examination which determines whether the effect of the governmental action is to endorse one religion over another, or to endorse religion in general. The response is a foreign conclusion; that is, the reference to a deity necessarily implicates religion. See Grand Rapids School District, 473 U.S. at 389, 105 S.Ct. at 3225 ("If this identification conveys a message of government endorsement or disapproval of religion, a core purpose of the Establishment Clause is violated"). In recent cases, the "endorsement" inquiry has come to the fore of Lemon analysis. County of Allegheny v. American Civil Liberties Union,—U.S.—, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 (1989). Therefore, "an important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices. The inquiry into this kind of effect must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years." Grand Rapids School District,473 U.S. at 390, 105 S.Ct. at 3226. In this case, the Providence School Committee has in effect endorsed religion in general by authorizing an appeal to a deity in public school graduation ceremonies. The invocations and benedictions convey a tacit preference for some religions, or for religion in general over no religion at all. Schoolchildren who are not members of the religious sponsored, or children whose families are nonbelievers, may feel as though the school and government prefer beliefs other than their own.

It is of no significance that the invocation and benediction are supposed to be nondenominational, or that participation or even recognition of the prayers is voluntary. In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Court invalidated a New York statute which required a short, nondenominational prayer to be recited at the beginning of each school day. "Neither the fact that the prayer may be denominationally neutral," the Court wrote, "nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment. . . ." 370 U.S. at 430, 82 S.Ct. at 1266-67.

In summary, the practice of having a benediction and invocation delivered at public school graduation ceremonies has the effect of advancing religion. The special occasion of graduation coupled with the presence of prayer creates an identification of governmental power with religious practice. Finally, the practice of including prayer may have the effect of either endorsing one religion over others, or of endorsing religion in general. For these reasons, the practice of providing guidelines for "non-sectarian" prayer fails to withstand constitutional scrutiny.

Defendants rely heavily on Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In that opinion, the Supreme Court upheld the Nebraska state legislature's opening of each session with a prayer led by a chaplain who was paid by the State. The Court noted that "[t]he opening sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." 463 U.S. at 786, 103 S.Ct. at 3333. The Court noted the long history, dating back to the Continental Congress, of opening legislative sessions with a prayer offered by a chaplain who was paid by the state. This unique "unambiguous and unbroken history" led the Court to hold that the drafters of the Constitution did not intend the first amendment to bar such legislative prayers.8

Defendant argues that this court should follow the reasoning of the Sixth Circuit Court of Appeals in Stein v. Plainwell Community Schools,822 F.2d 1406 (6th Cir.1987), in which the court extended Marsh to include benediction and invocations at public school commencement ceremonies. In Stein, the Court of Appeals held that annual high school graduation exercises were analogous to the legislative and judicial sessions in Marsh.The Court of Appeals found that the invocations and benedictions at graduation provided less opportunity for religious indoctrination or peer pressure than did classroom prayer for two reasons: first, the public nature of the ceremonies and the usual presence of parents acted as a buffer from religious coercion; second, the prayers were not led by a teacher or school official, thus they did not implicate the teacher-student relationship. 822 F.2d at 1409. The Court of Appeals did, however, find that the particular benediction and invocation challenged in Steinwere unacceptable under the Marsh holding because they contained language that was based on Christian theology and thus were not nonsectarian. Id. at 1410. As the Supreme Court did in Marsh, the Stein court did not apply the Lemontest.9

Stein's extension of the Marsh rationale is not persuasive. The Marsh holding was narrowly limited to the unique situation of legislative prayer. The clearest indication of this fact is that the Marsh decision did not use the Lemon test in its review of legislative benedictions. Since the Lemon test was first developed in 1971, every case involving the issue of prayer in school has used its analysis. Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 ("The Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers"); Grand Rapids School District v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985) ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children"). Marsh's unique exception to the Lemon test would most likely not be applied to school prayer cases, which on the basis of existing precedent requires use of the Lemon analysis. When the practice of the Providence School Committee is reviewed under Lemon, it fails to withstand Establishment Clause scrutiny, supra.

Extending the Marsh analysis to school benedictions is arguably unworkable because its results in courts reviewing the content of prayers to judicially approve what are acceptable invocations to a deity. See Stein, 822 F.2d at 1410 (reviewing language of invocation and benediction). What must follow in gradual judicial development of what is acceptable public prayer. This result is as contrary to the requirements of the Establishment Clause as is legislative composition of an official state prayer. See Engel, 370 U.S. at 425, 430, 82 S.Ct. at 1264, 1266.

Finally, the non-sectarian guidelines used by the School Committee are not a means of rescue. The are useful in environments where prayer is permitted. Here, it is not the particular nature or wording of the prayers which implicates the first amendment—it is prayer at the ceremony which transgresses the Establishment Clause.

On every other school day, at every other school function, the Establishment Clause prohibits school-sponsored prayer. If the students cannot be led in prayer on all of those other days, prayer on graduation day is also inappropriate under the doctrine currently embraced by the Supreme Court.

It is necessary to explain what this decision does not do. First, "[n]othing in the United States Constitution as interpreted by this Court ... prohibits public school children from voluntar[y] [private] pray[er] at any time before, during, or after the school day," or anytime during the graduation ceremonies. Wallace v. Jaffree,472 U.S. 38, 67, 105 S.Ct. 2479, 2495, 86 L.Ed.2d 29 (1985) (O'Connor, J. concurring). Second, nothing in this decision prevents a cleric of any denomination or anyone else from giving a secular inspirational message at the opening and closing of the graduation ceremonies. Counsel for plaintiff conceded at argument, as she must, that if Rabbi Gutterman had given the exact same invocation as he delivered at the Bishop Middle School on June 20, 1989 with one change—God would be left out—the Establishment Clause would not be implicated.10 The plaintiff here is contesting only an invocation or benediction which invokes a deity or praise of a God.

Finally, in the words of Justice Kennedy, "The case before [the court] illustrates better than most that the judicial power is often difficult in its exercise ... The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result." Texas v. Johnson,—U.S.—, 109 S.Ct. 2533, 2548, 105 L.Ed.2d 342 (1989) (Kennedy, J. concurring). The fact is that an unacceptably high number of citizens who are undergoing difficult times in this country are children and young people. School-sponsored prayer might provide hope to sustain them, and principles to guide them in the difficult choices they confront today. But the Constitution as the Supreme Court views it does not permit it. Choices are made in order to protect the interests of all citizens.11 Unfortunately, in this instance there is no satisfactory middle ground. Neither the legislative, nor the executive, nor the judicial branch may define acceptable prayer. Those who are anti-prayer thus have been deemed the victors. That is the difficult but obligatory choice this Court makes today.

Plaintiff may prepare and present a form of judgment within ten days declaring that the inclusion of prayer in the form of invocations or benedictions at public school promotion or graduation exercises in the City of Province, its agents or employees from authorizing or encouraging the use of prayer in connection with school graduation or promotion exercises.

So Ordered.

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The Supreme Court of the United States

October Term, 1991

No. 90-1014

Robert E. Lee, et al., Petitioners,

v.

Daniel Weisman, etc., Respondent

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

Reply Brief for the Petitioners

Joseph A. Rotella

622 Charles Street

Providence, RI 02904

(401) 861-0012

Jay Alan Sekulow

1000 Thomas Jefferson Street, N.W.

Suite 520

Washington, D.C. 20007

(202) 337-2273

Charles J. Cooper*

Michael A. Carvin

Peter J. Ferrara

Robert J. Cynkar Shaw,

Pittman, Potts & Trowbridge

2300 N Street, N.W.

Washington, D.C. 20037

Counsel for Petitioners

*Counsel of Record

Table of Contents

Argument

• I. Respondent's "no-endorsement" test is unworkable as a juridical tool, producing results unfaithful to the principle embodied in the Establishment Clause
  • A. Respondent's construction of the Establishment Clause requires an exclusively secular civic life for this nation
  • B. The Framers' disestablishment decision sought to protect religious choice from government coercion, not to exclude religious expression from civic life
• II. No one's religious beliefs were subjected to government coercion during the graduation ceremony

Conclusion

ARGUMENT I. RESPONDENT'S "NEUTRALITY" TEST IS UNWORKABLE AS A JURIDICAL TOOL, PRODUCING RESULTS UNFAITHFUL TO THE PRINCIPLE EMBODIED IN THE ESTABLISHMENT CLAUSE

A. Respondent's construction of the Establishment Clause requires an exclusively secular civic life for this nation Respondent argues that Lemon v. Kurtzman, 403 U.S. 602 (1971), is the "distillation" of a body of precedent teaching judges to use government "neutrality" toward religion as a standard with which to measure the bounds of the Establishment Clause. Resp. Br. at 16-17. This test, according to Respondent, includes the notion that government is not to act so as to communicate a "message of endorsement" of religion. Resp. Br. at 22-23. Since, in Respondent's mind, the reference to God in Rabbi Gutterman's graduation invocation and benediction constitutes such an endorsement, it is unconstitutional. Resp. Br. at 28-30. The rabbi's reference to God was not "neutral" toward God, and thus was an establishment of religion. Respondent's understanding of the Establishment Clause's requirements punctuates the point advanced in our opening brief: If the familiar and venerable tradition of graduation invocations and benedictions violates the Establishment Clause, what civic expression of religious belief does not?

Respondent, obviously aware of the startling sweep of his vision of the Establishment Clause, opens his argument with an attempt at reassurance. This case, Respondent says, is not about "prayer during presidential inaugurations, congressional sessions, and proclamations of National Days of Thanksgiving." Resp. Br. at 11. But nowhere in his brief can Respondent bring himself to say that those cases, no doubt soon to follow if Respondent prevails here, would or could come out differently under his analysis. Surely our national motto—"In God We Trust"—and our Pledge of Allegiance must be forbidden government "endorsements" of religion under Respondent's view of the "neutrality" required by the Establishment Clause.

Respondent fails to articulate any principled limits on his analysis because his analysis is logically not susceptible to any limit short of its goal: The complete elimination from American civic life of all expressions of religious sentiment. Counsel for one of Respondent's amici has explained elsewhere the logic of Respondent's notion of government "neutrality" toward religion: [The Supreme Court] should not have held that chaplains can open each meeting of a state legislature with prayer, or that municipalities can erect Christmas displays. These decisions are wholly unprincipled and indefensible. A little bit of government support for religion may be only a little bit of establishment, but it is still an establishment. The government should not put "In God We Trust" on coins; it should not open court sessions with "God save the United States and this honorable Court"; and it should not name a city or a naval vessel for the Body of Christ or the Queen of the Angels. Laycock, "Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers," 81 Nw. U.L. Rev. 1, 8 (1986).

Some lower courts have embraced this logic of the "neutrality" or "no-endorsement" standard, as can be seen in cases such as those invalidating city seals with religious imagery, as well as in the district court's conclusion below that "God has been ruled out of public education." App. 21a.

The arguments of Respondent and his amici underscore how the secularizing principle they espouse, if indeed embraced by the Constitution, would be amplified in modern American society. They take pains to point out that public schools came along decades after the founding generation. Resp. Br. at 37-38; American Jewish Cong. Br. at 25-32. That is true; indeed, modern American government is no doubt far more pervasively involved in the lives of Americans— both individually and as communities—than the Framers ever contemplated. If Respondent's view of "neutrality" is the rule courts are to apply under the Establishment Clause, the innumerable ways the modern state touches our lives means that a sweeping purge of religious expression from broad ranges of our social intercourse must be in order. See Pet. Br. at 8-9.

Though Respondent's amici claim that their analysis of the Establishment Clause "is a helpful way of explaining that it is not a forbidden benefit to religion to exempt conscientious objectors or otherwise remove burdens from religious practice," American Jewish Cong. Br. at 45, this conclusory statement reveals more their appreciation of the reach of their thinking than some principled way to limit it. As a logical matter, "accommodation" and "endorsement" are not so readily distinguished, and, as a practical matter, commonly spring from the same motivation. This weakness of their "no-endorsement" test as a doctrinal tool is illustrated by criticism from supporters of that test directed at Lynch v. Donnelly, 465 U.S. 668 (1984), upholding a town's sponsorship of a nativity scene in a Christmas display, criticism based on the conclusion that the creche constituted an unconstitutional endorsement of religion.

Trying to circumscribe the broad implications of his position for all manner of public acknowledgments of religious values, Respondent seeks to emphasize the "public school setting" as a "crucial" distinction for reaching what he urges as the proper outcome here. Resp. Br. at 11. Yet Respondent's theory that the Establishment Clause mandates government "neutrality" toward religion surely undermines his notion that the "public school setting" is distinct from other civic ceremonies under the Establishment Clause as he understands it. Neutrality is a goal obviously not dependent on a setting nor made more constitutionally endangered in a local public school, as opposed to the chamber of the national legislature or the supreme judicial body of the land. In short, nothing about the graduation setting logically identifies what Respondent advances as "the essential nature of this case," Resp. Br. at 11, in terms of the very analysis Respondent wishes this Court to adopt. That setting thus cannot serve to cabin the expansive implications of Respondent's interpretation of the Establishment Clause.

Close and candid examination of the "no-endorsement" standard thus brings to mind the observation made by Justice Kennedy, joined by the Chief Justice and Justices White and Scalia: Either the endorsement test must invalidate scores of traditional practices recognizing the place religion holds in our culture, or it must be twisted and stretched to avoid inconsistency with practices we know to have been permitted in the past, while condemning similar practices with no greater endorsement effect simply by reason of their lack of historical antecedent. Neither result is acceptable. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 674 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part). Strikingly, almost 30 years ago Justice Goldberg warned—while invalidating Bible reading and prayer in public classrooms—that "untutored devotion to the concept of neutrality" could lead to the exact result now sought by Respondent and achieved by the vision of the Establishment Clause he advances; "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." Abington School Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring). A doctrinal tool that leads lower courts on this drive towards the secular is at war with "the central role religion plays in our society," Allegheny County, 492 U.S. at 657 (Kennedy, J., concurring in the judgment in part and dissenting in part), and with the rule of law established by the Framers of the First Amendment.

B. The Framers' disestablishment decision sought to protect religious choice from government coercion, not to exclude religious expression from civic life The constitutional analysis of Respondent and his amici rests on a fundamentally confused interpretive methodology, particularly with respect to the use and significance of historical evidence of the Establishment Clause's intended meaning. In short, Respondent and his amici seek to dismiss altogether the direct evidence of what the Framers meant—the statements and conduct of the Framers themselves. Instead, they urge us to look to the history of certain public school controversies that occurred almost a century after the Establishment Clause was framed and adopted, and to what the states did in implementing their own disestablishment policies at the time of the Founding.

In his effort to draw this Court's attention away from the voluminous contemporaneous statements and practices of the Framers, Respondent first caricatures our reliance upon this direct and compelling evidence of the Framers' understanding of the Establishment Clause. According to Respondent, our historical analysis reduces to "anything the Founders did is OK." American Jewish Cong. Br. at 21. We make no such claim. After all, as Respondent correctly suggests, Congress adopted the Sedition Act of 1798, when memories of the framing and ratification of the First Amendment were still fresh. But the Sedition Act provoked a "great controversy" and was "vigorously condemned as unconstitutional." New York Times Co. v. Sullivan, 376 U.S. 254, 273-74 (1964). Jefferson (who, along with Madison, led the attack) denounced the Act as "a nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image." Id. at 276.

In contrast, the historical examples of official religious activity described in our opening brief were uncontroversial, inspiring no constitutional crisis, no storm of protest, not even reported litigation. Thus while we grant that it is theoretically possible that the Framers of a constitutional provision could contemporaneously and openly engage in a wide range of practices that they understood to violate that provision, we find it highly unlikely, to say the least, that such dishonorable conduct could pass without exciting substantial public controversy and constitutional challenge.

Respondent, however, advances precisely the opposite proposition—that this Court should dismiss as irrelevant the Framers' contemporaneous religious statements and practices because they were not controversial. Resp. Br. at 37-38; American Jewish Cong. Br. at 20-25. According to Respondent, "[g]overnment prayer and religious proclamations" were not controversial in the Founders' time because "the nation was overwhelmingly Protestant, and no significant group of Protestants was victimized by these practices." American Jewish Cong. Br. at 25-26. See Resp. Br. at 37-38. This "unexamined Protestant consensus," broke down in the latter half of the nineteenth century, when Catholic complaints about Protestant instruction and Bible reading in the schools led to political turmoil. Only then, says Respondent, did it become clear that government prayer and religious proclamations violate the Establishment Clause. From this premise, Respondent invites this Court to adopt the following interpretive reasoning:

"The [constitutional] principle was the same in both generations: government should not support or endorse religion. . . . The framers adopted the principle, and they applied it to all issues that were controversial among Protestants. They did not see its application to practices that substantially all Protestants could accept. But they put the principle in the Constitution, ready to be applied to new examples of the same evil." Resp. Br. at 37-38. See American Jewish Cong. Br. at 29-32; Laycock, " ‘Nonpreferential' Aid to Religion: A False Claim About Original Intent," 27 Wm. & Mary L. Rev. 875, 913-14 (1986).

Adoption of Respondent's interpretive theory requires acceptance of one of two conclusions, neither of which is tenable. Either the Founders knowingly engaged in unconstitutional practices—"[g]overnment prayer and religious proclamations"—because no one complained, or the practices that they engaged in were constitutional until someone complained. The first conclusion follows from Respondent's notions that the principle of the Establishment Clause was clear—no "endorsement" of reli gion—and that an "avowal of divine faith," such as prayer, is a clear "endorsement" of religion. Resp. Br. at 27; see American Jewish Cong. Br. at 51-52. It follows that the Founders' frequent and official avowals of faith were intentional and knowing constitutional violations. We submit that the more plausible reading of the history surrounding the framing of the First Amendment is that the Framers' religious statements and conduct as government officials were not controversial because they were viewed as clearly consistent with the principle embodied in the Establishment Clause.

The alternative conclusion that could flow from Respondent's argument—that official expressions of religious values were constitutional until they became controversial almost a century after ratification of the First Amendment— obviously represents a novel approach to constitutional adjudication. No one would dispute, certainly not Petitioners, that a constitutional safeguard applies to "new examples of the same evil." Resp. Br. at 38. As we put it in our opening brief, "the First Amendment prohibits modern methods of establishing a religion no less than it prohibits ancient ones." Pet. Br. at 31 n.32 (emphasis omitted). But governmental expressions of religious values are not new. And a practice that was so plainly understood by the Framers to be outside the Establishment Clause's prohibitions does not come within it, ipso facto, simply because the practice, in a different age, becomes "controversial."

In sum, we reiterate our opening brief's point that this case is governed by the Marsh Court's common sense observation that, "[i]n this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent." Marsh v. Chambers, 463 U.S. 783, 790 (1983); Pet. Br. at 30. The only rational conclusion that can be drawn from the historical record is not that the religious statements and conduct of the Framers were con- stitutionally invalid because they were not controversial, but rather that they were not controversial because they were not constitutionally invalid.

The only historical evidence offered by Respondent that relates to the relevant time frame—the founding period—focuses exclusively on the legislative development of disestablishment within the states. The Establishment Clause, however, did not even apply to the states at that time; indeed, it had been specifically framed to ensure that Congress would be disabled from interfering with state establishments. See note 22, infra. Quite apart from the doubtful relevance of the state practices cited by Respondent, see Allegheny County, 492 U.S. at 670 n.7 (Kennedy, J., concurring in the judgment in part, and dissenting in part) ("[T]he relevant historical practices are those conducted by governmental units which were subject to the constraints of the Establishment Clause."), the substance of those state practices has been seriously mischaracterized by Respondent.

For example, Respondent contends that the South Carolina Constitution of 1778 contained only "a bare endorsement" of the Christian Protestant religion as the established religion of the state, but that it was nevertheless found to be an unacceptable establishment of religion, despite the lack of coercion, and was repealed in the Constitution of 1790. See Resp. Br. at 36; American Jewish Cong. Br. at 3, 14-16. Far from articulating "a bare endorsement of religion," the 1778 South Carolina Constitution mandated numerous coercive requirements. Indeed, widely noted historian Anson Phelps Stokes concluded that the 1778 Constitution included "detailed provisions to insure a Protestant state probably . . . without parallel in our national history." A. Stokes, Church and State in the United States 432 (1950) ("Church and State").

Respondent and his amici similarly claim that Virginia created "a bare endorsement" of the Episcopal Church, without any coercion, through the 1784 statute "for incorporating the Protestant Episcopal Church." They again argue that this "bare endorsement" without coercion was found to be an unacceptable establishment of religion and was subsequently repealed. See Resp. Br. at 36-37; American Jewish Cong. Br. at 3, 12-14, 16. But the incorporation statute nowhere stated that the Episcopal Church was to be the established, official church of the state. T. Buckley, Church and State in Revolutionary Virginia 1776-1787 106-07 (1977) ("Revolutionary Virginia"); Church and State at 384-87. Indeed, Respondent's amici admits that the "state's endorsement was implicit rather than explicit." American Jewish Cong. Br. at 13. Yet even the characterization of the Act as an "implicit endorsement" does not withstand scrutiny.

The Act transferred authority over the organization and operation of the church, which had been the established church, from the state to the church. To execute this disestablishment, the Act transferred the formerly state-owned property used by the church, including church buildings, surrounding land, and "glebes" farmed for the support of ministers, to church ownership. Church and State at 384-87; Revolutionary Virginia at 106-07. The statute incorporated the church, not to implicitly endorse it as the established church, but because the church now needed a legal form or entity distinct from that of the state to hold that property and to otherwise go about its affairs. James Madison himself, as a member of the Virginia Assembly, voted for the bill, explaining: "The necessity of some sort of incorporation for the purpose of holding and managing the property of the church could not well be denied, nor a more harmless modification of it now obtained." Church and State at 386. See also Revolutionary Virginia at 106-07. Indeed, the support of Madison and his allies in the Assembly created the majority in favor of the bill.

Respondent argues that the Virginia general assessment bill proposed by Patrick Henry in 1785 did not involve coercion, but was nevertheless rejected as an establishment of religion. Resp. Br. at 35-36; American Jewish Cong. Br. at 16-17. The bill, however, clearly was coercive. Each taxpayer's funds were to be distributed to the Christian denomination designated by that taxpayer, or to a general state fund that would be used to support the local schools in each county. All schooling at the time was private and inextricably intertwined with religious values and teachings. Thus, whether directed to a denomination of the taxpayer, or distributed to a school by a state fund, such assessments unavoidably compelled taxpayers to contribute to certain religious activities.

Notably, parties on both sides of the assessment debate did not question the compulsion involved in an assessment. Proponents of assessments expressly acknowledged their coercive effects, arguing that since all received the civil benefits of a religious citizenry, all should be compelled to contribute to religion. Madison, the leading opponent of the Virginia assessment, opposed the bill precisely because of its coercive quality, as he eloquently set out in his historic Memorial and Remonstrance. Pet. Br. at 21-22. While the assessment bill provoked debate over many issues, the permissibility of a "bare endorsement" of religion was not among them.

The arguments of Respondent and his amici that purport to draw on history fail not only because they do not seriously challenge the conclusion that coercion of religious choice was the focus of the Framers, but because they also do not establish that the secularizing results of their "no-endorsement" test could have been a serious goal of the Framers, and so be the animating principle of the Establishment Clause. As demonstrated in our opening submission, the architects of our tradition of religious liberty premised their cause on explicitly religious philosophical principles, arguing that the reforms they sought were Divinely inspired. Pet. Br. at 14-22, 30-34. That they did without hesitation or embarrassment, underscores the pervasiveness of religious values and assumptions in the thinking of that time and hence the unlikelihood that citizens of that generation could have viewed a secular political culture purged of religious content as a live alternative. Separation at 969.

In the historical circumstances of the Framers, the coercive power of the state was able to constrain religious liberty due to the institutional integration of church and state. "[G]overnments controlled or directly intervened in the internal affairs of churches, and churches claimed and were formally endowed with governmental powers." By undoing this institutional integration, the Framers freed religious choice from the specter of government's coercive powers. Thus, faithful application of the Framers' disestablishment decision, and of the rule of law they intended to embody in the Establishment Clause, yields the conclusion that the First Amendment can be violated only by the governmental coercion of religious choice, whether directly or indirectly, but not by the expression of religious values in our civic life.

II. NO ONE'S RELIGIOUS BELIEFS WERE SUBJECTED TO GOVERNMENT COERCION DURING THE GRADUATION CEREMONY

Respondent claims that we have employed a "limited definition of coercion," failing to appreciate "the subtle pressures . . . in the school setting." Resp. Br. at 10. Quite the contrary, in our opening brief, we recognized the importance of sensitivity to subtle forms of coercion. Pet. Br. at 36; see also Allegheny County, 492 U.S. at 659-60 (Kennedy, J., concurring in the judgment in part and dissenting in part). In that brief, Pet. Br. at 39-44, we went on to point out that the classroom setting, due to compulsory attendance, the role of the teacher as an authority figure, and the fundamental pedagogical premise of the environment, may render young students "susceptible to unwilling religious indoctrination." Wallace v. Jaffree, 472 U.S. 38, 81 (1985) (O'Connor, J., concurring in the judgment). See also Edwards v. Aguillard, 482 U.S. 578, 584 (1987) ("The State exerts great authority and coercive power through mandatory attendance requirements. . . .").

While underscoring the supposed importance for Establishment Clause analysis of some generic "public school setting," Respondent seeks to depreciate the precise attributes of the actual setting of the graduation invocation and benediction here, Resp. Br. at 28-30, attributes which reveal these graduation exercises to be a "noncoercive setting" devoid of those elements of subtle coercion that have been of concern to this Court in the past. As this Court put it recently, "there is little if any risk of official state endorsement or coercion where no formal classroom activities are involved." Board of Educ. v. Mergens, 110 S. Ct. at 2372. Respondent simply overlooks the complete absence in the graduation setting of those facts that make the classroom so distinctive for Establishment Clause analysis. See, e.g., Abington School Dist. v. Schempp, supra (Bible readings part of prescribed curriculum; conducted under supervision of teachers; children may be excused during reading); Engel v. Vitale, supra (state-drafted school prayer).

The graduation ceremonies at issue here are not held during class; they are not necessarily even held at a public school. J.A. 12-17. Students choose to be present; the ceremony is short, occurs only once in a student's career, and does not involve teaching; and virtually all of the students who choose to attend are in the company of their parents.

Thus, the potentially coercive aspects of the classroom setting are not present at graduation exercises. As for the importance of the occasion and the other attributes noted by Respondent, Resp. Br. at 28-30, they simply do not distinguish a public school graduation ceremony from many other civic ceremonies. If the desire of Respondent to attend his daughter's graduation requires the censorship of Rabbi Gutterman's prayers here, surely George Bush should have been barred at his inaugural from making a prayer his "first act as President."

Respondent's complaint, after all, is that he "is opposed to and offended by the inclusion of prayer in the public school graduation ceremony." J.A. 5. He does not contend that he or his daughter were subjected to unwanted efforts at indoctrination in Judaism, that they were penalized for not subscribing to Rabbi Gutterman's expression of religious values, or even that they were subject to pressure, ostracism, or embarrassment as a result of their views of the rabbi's prayers. J.A. 2-7 (Complaint); J.A. 10-19, 24 (Agreed Statement of Facts). Nor do the facts here reveal the indirect coercion that can result from compelling a student to attend class and to opt out of a classroom religious activity. "No one was compelled to observe or participate in any religious ceremony or activity." Allegheny County, 492 U.S. at 664 (Kennedy, J., concurring in the judgment in part and dissenting in part).

Respondent has simply been unable to point to any feature of the graduation invocation and benediction here that poses a "realistic risk" that these prayers "represent an effort to proselytize or are otherwise the first step down the road to an establishment of religion." Id. Failing to employ governmental power to directly or indirectly coerce the religious choice of the graduating students, Rabbi Gutterman's invocation and benediction did not violate the Establishment Clause.

CONCLUSION

For the foregoing reasons, and for the reasons stated in our opening brief, the judgment of the court of appeals should be reversed.

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The Supreme Court of the United States

October Term, 1991

No. 90-1014

Robert E. Lee, et al., Petitioners,

v.

Daniel Weisman, etc., Respondent

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

Respondent's Brief

Sandra A. Blanding (Counsel of Record)

Revens Blanding

Revens & St. Pierre

946 Centerville Road

Warwick, Rhode Island 02886

(401) 822-2900

Steven R. Shapiro John A. Powell

American Civil Liberties Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Table of Contents

Statement of the Case

Summary of Argument

Argument

• I. Petitioners' practice of inviting clergy to offer prayers at the promotional and graduation ceremonies held by public middle schools and high schools violates the Establishment Clause under any criteria ever adopted by this court
  • A. Any analysis of the constitutionality of petitioners' practice of including prayer in public school promotional and graduation ceremonies must begin with recognition of the special nature of the public school setting
  • B. The Lemon test reflects the concept that the Establishment Clause mandates neutrality and autonomy between public schools and religion
  • C. Prayers at public middle school promotional ceremonies and at public high school graduation ceremonies fail each prong of the three-part Lemon test
    • The purpose of including prayer in public middle and high school promotional and graduation ceremonies is to endorse religion
    • The effect of including prayer in the promotional and graduation ceremonies of public middle schools and high schools is to convey a message of endorsement of religion
    • Petitioners' practice impermissibly entangles government with religion
  • D. The historical analysis adopted by the Court in Marsh v. Chambers does not save petitioners' practice of including prayer in public school promotional and graduation ceremonies from constitutional infirmity
• II. Government coercion has never been accepted as a necessary element of an Establishment Clause violation
  • A. Historically, the meaning of the Establishment Clause was not limited to a prohibition of government coercion of religion
  • B. This court has consistently rejected coercion as a necessary element of an Establishment Clause violation
  • C. Although coercion has never been held to be a necessary element of an Establishment Clause violation, petitioners' practice is nonetheless coercive

Conclusion

STATEMENT OF THE CASE

Respondent Daniel Weisman, whose daughter Deborah attends a public school in the City of Providence, Rhode Island, initiated this action in June 1989, in order to prevent the inclusion of prayer in Deborah's eighth grade promotional ceremony from the Nathan Bishop Middle School. The district court allowed the ceremony to proceed as scheduled. The parties then submitted the case to the district court upon an Agreed Statement of Facts, which is summarized below.

At the close of each school year, the Members of the Providence School Committee and the Superintendent of Schools sponsor a promotional ceremony in each of the City's public middle schools and a graduation ceremony in each of the City's public high schools. (J.A.12, P11). Eighth grade promotional ceremonies for the public middle schools are routinely conducted on school premises; high school graduation ceremonies are generally conducted in auditoriums which petitioners rent for the occasion. (J.A.13-16, PP19-29; J.A.17, P34). Petitioners supervise and authorize the content of the public school promotional and graduation ceremonies. (J.A.12, P12). Their practice has been to allow the principal of each middle school and each high school to include, in the school's ceremony, an invocation and benediction in the form of prayer, delivered by clergy who are selected by school department employees. (J.A.12, P13; J.A.18, P40).

In June 1989, when respondent initiated this action, his daughter Deborah was an eighth grade student in the Nathan Bishop Middle School, a public school in the City of Providence. (J.A.10, P3). Teachers at the Nathan Bishop Middle School had planned a promotional ceremony for eighth grade students and had suggested to the principal, petitioner Robert E. Lee, that Rabbi Leslie Gutterman be asked to deliver an invocation and benediction at the ceremony. (J.A.12-13, P16). Petitioner Lee conveyed the invitation to Rabbi Gutterman, who accepted. (J.A.17, P36).

Prior to the actual ceremony, petitioner Lee provided to Rabbi Gutterman a pamphlet entitled "Guidelines for Civic Occasions," published by the National Conference of Christians and Jews. (J.A.13, P17). This pamphlet specifies the type of "public prayer" which should be composed for civic occasions. (J.A.20-21). Petitioners had distributed this pamphlet to all of the principals of Providence's middle schools and high schools as a guideline for the type of prayer to be included in the promotional and graduation ceremonies conducted in Providence's public schools. (J.A.12, PP14-15). Petitioner Lee also instructed Rabbi Gutterman personally that the prayers he delivered at Nathan Bishop's promotional ceremony should be nonsectarian. (J.A.13, P17).

The parties agree that the invocation and benediction delivered by Rabbi Gutterman are prayers. (J.A. 17, P36). For his invocation, Rabbi Gutterman prayed, as follows: God of the Free, Hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all can seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

AMEN

(J.A.22). For his benediction, Rabbi Gutterman offered the following prayer: O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.

AMEN

(J.A.23).

From 1985 through 1989, many, but not all, graduation ceremonies conducted by the City of Providence's public high schools included invocations and benedictions in the form of prayer, delivered by clergy. (J.A.13, P18). In each case in which prayers were included, the respective high school produced and distributed a program that identified the name and institutional affiliation of the clergy who delivered the prayers. (J.A.13-14, PP19-22). During the same time period, Providence's six public middle schools conducted annual promotional ceremonies for eighth grade students. All of these ceremonies took place on the premises of the respective school. (J.A.15-16, PP23-28). Two of the six public middle schools included invocations and benedictions in the form of prayer in their ceremonies; the remaining four schools did not include prayer in their promotional ceremonies. Like the high schools, each middle school produced programs that identified the clergy delivering the invocation and benediction. (J.A.15, PP23-24). Parents and friends of students are invited to attend Providence public schools' promotional and/or graduation ceremonies. (J.A.18, P42). Attendance at the ceremony is not mandatory for students. (J.A.18, P41).

In holding that the practice of including prayer in public school graduation and promotional ceremonies violates the Establishment Clause of the United States Constitution, the district court noted: "The [Supreme] Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." Edwards v. Aquillard [sic], 482 U.S. 578, 583-84 (1987). . . . This vigilance is based upon the perceived sensitive nature of the school environment and the apprehended effect of State-led religious activity on young, impressionable minds. App.B at 21a-22a (citation omitted).

Relying on established precedent, the district court analyzed the facts before it under the three-pronged test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). Specifically, the district court held that "the benediction and invocation advance religion by creating an identification of school with a deity, and therefore religion." App.B at 24a (footnote omitted). This prohibited effect was heightened, according to the district court, by the fact that the challenged prayers were offered at graduation ceremonies. "It is the union of prayer, school, and important occasion that creates an identification of religion with a school function. The special nature of the graduation ceremonies underscores the identification that Providence public school students can make." App.B at 24a. The court then evaluated whether or not the identification of school with religion conveyed a message endorsing a particular religion or religion in general. After reviewing the facts in the record, the court concluded that petitioners' practice did convey such a message. App.B at 25a.

Petitioners argued before the district court that the constitutionality of their policy concerning prayer at middle school promotional ceremonies and at high school graduation ceremonies should be analyzed under Marsh v. Chambers, 463 U.S. 783 (1983). The court rejected Marsh as inapplicable to prayer in a public school setting. App.B at 27a. Furthermore, the district court held "[e]xtending the Marsh analysis to school benedictions is arguably unworkable because it results in courts reviewing the content of prayers to judicially approve what are acceptable invocations to a deity. . . . What must follow is a gradual judicial development of what is acceptable public prayer." Id. (citations omitted).

The United States Court of Appeals for the First Circuit affirmed the district court's decision, with Judge Campbell dissenting. App.A at 1a-17a. The majority opinion simply adopted the reasoning of the lower court; however, Judge Bownes' concurring opinion elaborated on the purpose and entanglement prongs of the Lemon test, which were not addressed by the district court. App.A at 2a, 9a-11a. Judge Bownes found that the primary purpose of prayer at a graduation ceremony is religious and that "a prayer given by a religious person chosen by public school teachers communicates a message of government endorsement of religion." App.A at 9a-10a. Judge Bownes also found that the specific facts of this case raise entanglement concerns for two reasons. First, school teachers choose speakers among various religious groups. Second, school officials engage in the supervision and regulation of the content of the prayers offered by clergy. App.A at 10a.

Judge Campbell's dissenting opinion tacitly concedes that petitioners' practice is unconstitutional under existing precedent. Consequently, he is forced to articulate a new rule that would provide for the allowance of invocations and benedictions at ceremonial occasions, provided that speakers are rotated among "representatives of the Judeo-Christian religion . . . representatives of other religions and of nonreligious ethical philosophies. . . ." App.A at 16a. As Judge Campbell himself recognizes, however, "[i]t may be . . . that even more needs to be done, to insure not only that the state does not identify itself with a particular religion but with religion generally." Id.

SUMMARY OF ARGUMENT

The issue in this case is whether public school officials violate the Establishment Clause when they include prayer as an integral part of promotional or graduation ceremonies, choose the clergy who appear at each ceremony, and monitor the content of prayers that are delivered to the assembled students. The court below found that such practices cannot be sustained under any interpretation of the Establishment Clause ever adopted by this Court. That decision is correct and should be affirmed.

Petitioners do not seriously quarrel with the decision below. Instead, they have seized upon this case as a vehicle to ask the Court to overturn more than four decades of well-settled law and rule, for the first time, that there can be no "establishment" of religion in the absence of coercion. It is an old and discredited argument that has been rejected by this Court on numerous occasions including, most recently, only two years ago. See County of Allegheny v. ACLU, 492 U.S. 573 (1989). If it is even reached in this case (since it was not raised below), it can and should be rejected again.

Because petitioners' attack is focused more on this Court's Establishment Clause jurisprudence than the decision below, their brief continuously refers to practices that are not at issue in this case, such as Thanksgiving Day proclamations. In so doing, petitioners distort the issues before this Court and ignore the Court's historic awareness of "the sensitive relationship between government and religion and the education of our children." Grand Rapids School District v. Ball, 473 U.S. 373, 383 (1985).

By focusing exclusively on the Lemon test, petitioners also ignore this Court's explicit recognition that Lemon did not create a new test but merely distilled the principles articulated in previous decisions. Before and after Lemon, this Court has consistently stressed that the Establishment Clause requires government neutrality toward religion in order to preserve the integrity of both. See, e.g., Abington v. Schempp, 374 U.S. 203, 226 (1963). It is that principle, not just Lemon, that petitioners have violated.

This is not a case where the religious significance of the challenged practice is questionable or marginal. Petitioners have stipulated that this is a case about prayer, and this Court has consistently described prayer as an inherently religious activity. By incorporating prayer into a major public school ceremony, petitioners have violated every prong of the Lemon test. The unavoidable message delivered to the school children is that school officials support and encourage participation in a religious exercise. Efforts to dilute that message by reviewing the prayer before it is delivered only entangle school officials with religious practices that should remain the domain of the clergy.

Citing Marsh v. Chambers, 463 U.S. 783, petitioners contend that the use of prayer at public school promotional and graduation ceremonies is consistent with other historical practices of the framers and, therefore, must be consistent with the Establishment Clause. Confronted with similar arguments in the past, this Court has noted that "a historical approach is not useful in determining the proper roles of church and state in public schools. . . ." Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987). Moreover, Marsh itself carefully distinguished between religious practices aimed at adults and those directed at children who are more susceptible to "religious indoctrination." 463 U.S. at 792.

Petitioners' use of history to support their proposed coercion test is equally flawed. It is true that the founding generation opposed the coercion of religious beliefs. However, it is also true that the founding generation opposed the noncoercive endorsement of religion, and repealed a variety of provisions providing for such endorsement during the very years that the Constitution was being debated and adopted. Respecting that history, this Court has squarely and repeatedly rejected any claim that coercion is a necessary element of the Establishment Clause. See, e.g., Engel v. Vitale, 370 U.S. 421, 431 (1962); Abington v. Schempp, 374 U.S. at 224-25; Committee for Public Education v. Nyquist, 413 U.S. 756, 786 (1973).

Finally, petitioners' definition of coercion disregards the subtle pressures that the Court has always recognized as coercive, especially in the school setting. Indeed, no member of this Court has ever adopted the limited definition of coercion that petitioners now embrace. The pressure upon public school children to conform to their classmates' behavior and their teachers' expectations and instructions does not vanish when the classroom door closes and the graduation march begins. Petitioners' unwillingness to recognize that fact highlights the unsuitability of their proposed coercion test.

ARGUMENT

I. PETITIONERS' PRACTICE OF INVITING CLERGY TO OFFER PRAYERS AT THE PROMOTIONAL AND GRADUATION CEREMONIES HELD BY PUBLIC MIDDLE SCHOOLS AND HIGH SCHOOLS VIOLATES THE ESTABLISHMENT CLAUSE UNDER ANY CRITERIA EVER ADOPTED BY THIS COURT

A. Any analysis of the constitutionality of petitioners' practice of including prayer in public school promotional and graduation ceremonies must begin with recognition of the special nature of the public school setting

Petitioners' global analogies which liken prayer in public school promotional and graduation ceremonies to prayer during presidential inaugurations, congressional sessions, and proclamations of National Days of Thanksgiving, are a thinly disguised attempt to escape the essential nature of this case. Unlike petitioners' analogies, this case is about the constitutionality of prayer in a public school setting. That distinction is crucial, moreover. This Court has consistently recognized that the introduction of religion into the public schools raises special and severe problems under the Establishment Clause. Thus, while acknowledging the value of prayer " ‘based on our spiritual heritage,' " Engel v. Vitale, 370 U.S. at 425 (citation omitted), and posting of the Ten Commandments " ‘as the fundamental legal code of Western Civilization and the Common Law of the United States,' " Stone v. Graham, 449 U.S. 39, 41 (1980) (citations omitted), this Court has never hesitated to strike down such practices when undertaken as part of public education.

Because of this Court's enhanced sensitivity towards Establishment Clause violations within the public schools, a constitutional analysis of prayer at public school functions is intrinsically distinct and segregable from considerations applicable to other public arenas. Justice Frankfurter eloquently traced the roots of this special concern in a concurring opinion in Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 212 (1948), in which he took note of the fierce struggles for state support among conflicting denominations that led to a burgeoning public school system, removed from the divisiveness of competing religious groups: Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instruments but especially through its educational agencies, was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its people. . . . The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. Id. at 215-17 (footnote omitted).

The importance of maintaining strict neutrality toward religion within the public education system is a thread that weaves together all modern Establishment Clause decisions of this Court addressing the juxtaposition of religion and public schools. Since this Court first began to grapple with the meaning and intent of the Establishment Clause, it has decreed both advocacy for religion and hostility towards religion out of bounds within this nation's public schools. In his lengthy concurrence in Abington v. Schempp, 374 U.S. 203, Justice Brennan summarized the Court's views on religion in the public schools: [T]he American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. The interaction of these two important forces in our national life has placed in bold relief certain positive values in the consistent application to public institutions generally, and public schools particularly, of the constitutional decree against official involvements of religion which might produce the evils the Framers meant the Establishment Clause to forestall. . . . It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort—an atmosphere in which children may assimilate a heritage common to all American groups and religions. . . . [T]his is a heritage neither theistic nor atheistic, but simply civic and patriotic. Id. at 241-42 (citations omitted).

Like Justice Frankfurter, Justice Brennan recognized the unique role filled by public education in a country that, over time, has become extraordinarily diverse in the religious beliefs of its citizens. In Epperson v. Arkansas, 393 U.S. 97, 104-05 (1968), the Court reaffirmed its special concern for religious practices in the public schools, citing with approval Shelton v. Tucker, 364 U.S. 479, 487 (1960)(" ‘[T]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools' "), and Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)("[T]he First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over the classroom' ").

Recent decisions of this Court continue to recognize the special role of the public education system in our society, coupled with the understanding that public school children are more susceptible than adults to religious messages. Rejecting a comparison between presidential proclamations celebrating Thanksgiving and a period of silence for the purpose of prayer in the public schools, Justice O'Connor has observed: At the very least, Presidential Proclamations are distinguishable from school prayer in that they are received in a non-coercive setting and are primarily directed at adults, who presumably are not readily susceptible to unwilling religious indoctrination. This Court's decisions have recognized a distinction when government-sponsored religious exercises are directed at impressionable children who are required to attend school, for then government endorsement is much more likely to result in coerced religious beliefs. Wallace v. Jaffree, 472 U.S. 38, 81 (1985) (O'Connor, J., concurring) (citations omitted). See also Grand Rapids School District v. Ball, 473 U.S. at 383 ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children. The government's activities in this area can have a magnified impact on impressionable young minds. . . ."); Edwards v. Aguillard, 482 U.S. at 583-84 ("The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. . . . The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure") (footnote omitted) (citation omitted).

Petitioners choose to ignore the consistent recognition by this Court, spanning more than forty years, that the public education system in this country fills a unique and vital role in the lives of our children and in the continued vitality of constitutional principles upon which this country is founded. This case is not about presidential proclamations, inaugural ceremonies, or the opening of legislative or judicial sessions. Rather, this case is about prayer in a public school sponsored event, delivered by a member of the clergy chosen by a public school official, and both planned and supervised by school officials as the culmination of a child's progress through the public school system. To suggest that the special vigilance which this Court has long accorded in evaluating religious practices within the public schools is inapplicable here is to blink at reality. Promotional and graduation ceremonies are as integral to a child's school career as is daily class attendance. Any analysis of a school policy pertaining to these ceremonies which implicates Establishment Clause concerns must begin with the heightened vigilance accorded to religious practices in the public schools.

B. The Lemon test reflects the concept that the Establishment Clause mandates neutrality and autonomy between public schools and religion

For the past twenty years, this Court and the lower courts have consistently relied on the so-called Lemon test in evaluating Establishment Clause claims. As Justice Powell has observed, Lemon "identifies standards that have proved useful in analyzing case after case both in our decisions and in those of other courts. It is the only coherent test a majority of the Court has ever adopted." Wallace v. Jaffree, 472 U.S. at 63 (Powell, J., concurring).

Petitioners' singleminded focus on Lemon, however, disregards the fact that Lemon itself is merely a distillation of this Court's other Establishment Clause holdings. Indeed, Lemon's formulation of secular purpose and effect flows directly from Schempp's explanation of "wholesome neutrality." 374 U.S. at 222. Thus, in asking the Court to reconsider Lemon, petitioners are effectively asking the Court to reconsider its entire Establishment Clause jurisprudence covering nearly half a century. See, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947) ("[The First] Amendment requires the State to be a neutral in its relations with groups of religious believers and non-believers. . . ."); Zorach v. Clausen, 343 U.S. 306, 314 (1952) ("The government must be neutral when it comes to competition between sects"); Abington v. Schempp, 374 U.S. at 226 ("In the relationship between man and religion, the State is firmly committed to a position of neutrality"); Epperson v. Arkansas, 393 U.S. at 103-104 ("Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice"); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 741 (1976) ("Neutrality is what is required"); Wallace v. Jaffree, 472 U.S. at 60 ("[G]overnment must pursue a course of complete neutrality toward religion").

To discard the concepts embodied in Lemon and expounded upon in numerous decisions by this Court is to invite havoc in both the lower courts and in the administration of the public schools. To discard Lemon is to discard the rationale of Schempp, and all of this Court's decisions that teach that prayer cannot be incorporated into the public schools. To discard Lemon is to solicit renewed litigation of all of the practices which this Court has already determined impermissibly mix religion and public education.

The basic concepts enunciated in the Lemon test were not newly devised in Lemon, but developed gradually, founded on the premise that the Establishment Clause requires government to maintain neutrality towards competing religious sects and towards religion generally. " ‘The government is neutral, and, while protecting all, it prefers none, and it discharges none.' " Abington v. Schempp, 374 U.S. at 215, citing with approval Minor v. Board of Education in Cincinnati (Super.Ct. Cincinnati, Ohio, 1870) (Taft, J., dissenting). Government, in short, is prohibited both from inhibiting the free exercise of religion and from allowing "a majority" to use "the machinery of the State to practice its beliefs." Abington v. Schempp, 374 U.S. at 226.

In discussing the genesis of the Establishment Clause, this Court observed in 1947, long before Lemon, that, [t]he people [in Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions. . . . Everson v. Board of Education, 330 U.S. at 11. The Court employed similar language in holding, during the following year, that religious instruction within the public schools, taught by private religious groups, violates the Establishment Clause: This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment. . . . Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 210.

The next Establishment Clause case decided by this Court and related to practices within the public schools was Zorach v. Clausen, 343 U.S. 306. While the Court in Zorach did not refer to government actions "supporting," "aiding" or "assisting" religion, it employed other terms equally familiar in modern Establishment Clause jurisprudence. Thus, the Court held, the First Amendment "studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other [i.e. church on state, or vice versa]." Id. at 312. In particular, "[g]overnment may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education. . . ." Id. at 314 (emphasis added).

Three decades ago, in McGowan v. Maryland, 366 U.S. 420, 449 (1961), the Court employed the terms "purpose and effect" in its analysis of the constitutionality of Sunday closing laws: After engaging in the close scrutiny demanded of us when First Amendment liberties are at issue, we accept the State Supreme Court's determination that the statute's present purpose and effect is not to aid religion but to set aside a day of rest and recreation. These terms began to be referred to as the Establishment Clause "test" several years later, when the Court considered the constitutionality of daily recitation of the Bible and Lord's Prayer in public school classrooms: The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Abington v. Schempp, 374 U.S. at 222 (citations omitted), cited with approval in Epperson v. Arkansas, 393 U.S. at 107.

In Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), this Court began to further develop the concepts of "purpose" and "effect" as they pertain to Establishment Clause issues: Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result—the effect—is not an excessive government entanglement with religion. Id. at 674.

The Court relied on its analysis in Schempp and Walz when it devised the now familiar Lemon test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. at 612-13 (citations omitted).

In sum, Lemon simply coalesced concepts which the Court had been applying in Establishment Clause cases for over twenty years. Indeed, the Court itself has recognized this to be true: [T]hese tests or criteria should be "viewed as guidelines" within which to consider "the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause." Committee for Public Education v. Nyquist, 413 U.S. at 773 n.31, quoting Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See also Meek v. Pittenger, 421 U.S. 349, 358 (1975) ("These tests constitute a convenient, accurate distillation of this Court's efforts over the past decades. . . ."). Since Lemon, its familiar three-prong test has been accepted by this Court as a logical and comprehensible starting point for constitutional analysis in Establishment Clause cases.

While consistently reaffirming the Lemon framework as a viable means of analyzing Establishment Clause issues, this Court recently clarified and refined its meaning and substance. In her concurrence in Lynch v. Donnelly, 465 U.S. 668, 690 (1984), Justice O'Connor restated the heart of the Lemon test: The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.

The "purpose" and "effect" prongs of the Lemon test are thus addressed by an evaluation of both the objective and subjective "components of the message" conveyed by the challenged government action. A secular purpose which is a mere sham is not enough to save a challenged practice from constitutional infirmity. See Stone v. Graham, 449 U.S. 39. Rather, it is the actual intent of the government which is critical under the "purpose" prong. This approach was endorsed by six Justices of the Court in Wallace v. Jaffree, 472 U.S. at 56, and by seven Justices in Grand Rapids School District v. Ball, 473 U.S. at 389 (noting further that if a symbolic "link" or "identification" of government with religion conveys a message of endorsement, the Establishment Clause is violated). See also Edwards v. Aguillard, 482 U.S. at 583 n.4.

Most recently, in County of Allegheny v. ACLU, 492 U.S. at 600-01, this Court has explained the reach of the term "endorsement" as follows: [T]he very concept of "endorsement" conveys the sense of promoting someone else's message. Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits . . . the government's lending its support to the communication of a religious organization's religious message.

Petitioners propose no less than a total reconstruction of modern Establishment Clause jurisprudence, developed painstakingly and carefully by this Court over the past four decades. They propose the abandonment of the very cornerstone of what the Establishment Clause is understood to mean. In the process, they disregard the notion of stare decisis, which this Court described only a few weeks ago as "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, ___U.S. ___, 59 U.S.L.W. 4814, 4819 (June 27, 1991).

It is true that Payne precipitated a debate among the members of the Court over the scope and meaning of stare decisis in constitutional cases. Yet, every member of the Payne Court agreed that allegiance to stare decisis is most compelling when the challenged principle of law reflects the accumulated wisdom of a body of precedents stretching back over many years and many courts. That is precisely the situation here. Under these circumstances, this Court has continued to adhere to the proposition that "the doctrine of stare decisis is of fundamental importance to the rule of law." Payne v. Tennessee, 59 U.S.L.W. at 4823 (Souter, J., concurring), quoting Welch v. Texas Dep't of Highways and Public Transportation, 483 U.S. 468, 494 (1987). Petitioners have offered no persuasive reason why the doctrine of stare decisis should be abandoned in this case.

C. Prayers at public middle school promotional ceremonies and at public high school graduation ceremonies fail each prong of the three-part Lemon test

1. The purpose of including prayer in public middle and high school promotional and graduation ceremonies is to endorse religion The only evidence submitted to the district court in this case was contained in the parties' Agreed Statement of Facts. (J.A. 10-19, 24). The Agreed Statement of Facts contains no evidence of any secular purpose for the inclusion of prayer in the promotional and graduation ceremonies of Providence's public schools. Moreover, this Court has often recognized the essential religious nature and manifest religious purpose of prayer. Wallace v. Jaffree, 472 U.S. at 72 (O'Connor, J., concurring) (contrasting the "inherently religious" nature of vocal prayer, which is "a religious exercise," to a moment of silence, which may be neither); Stone v. Graham, 449 U.S. at 41 (holding that the Ten Commandments is "undeniably a sacred text in the Jewish and Christian faiths"); Abington v. Schempp, 374 U.S. at 225 (noting that reading the Bible and recitation of the Lord's Prayer are "religious exercises"); Engel v. Vitale, 370 U.S. at 424-25 ("the nature of . . . prayer has always been religious").

Indeed, this Court has never found a valid secular purpose for any type of government sponsored prayer in a public school setting. Rather, in each of the foregoing cases, the Court has firmly and unequivocally rejected any alleged secular purpose for school sponsored prayer and even for school encouragement of prayer: The addition of "or voluntary prayer" [in the Alabama statute authorizing a period of silence in public schools] indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion. The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. For whenever the State itself speaks on a religious subject, one of the questions that we must ask is "whether the government intends to convey a message of endorsement or disapproval of religion". . . . Keeping in mind, as we must, "both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded," we conclude that Section 16-1-20.1 violates the First Amendment. Wallace v. Jaffree, 472 U.S. at 60-61 (footnotes omitted). See also Edwards v. Aguillard, 482 U.S. 578 (holding that the preeminent purpose of a Louisiana statute requiring "Creation Science" to be taught in conjunction with evolution was religious).

Petitioners argue that their practice of including prayer in public school promotional and graduation ceremonies is to "solemnize the occasion" and to provide "recognition and acknowledgment of the role of religion in the lives of our citizens." Pet.Br. at 44 n.43. Petitioners' pretensions to a secular purpose must fail on the facts of this case. It is undisputed that more than half of Providence's middle schools and one of its five high schools have repeatedly succeeded in producing promotional and/or graduation ceremonies without the use of prayer. Apparently, the officials of those schools have fostered secular means to solemnize and dignify their ceremonies. On these facts, one can only conclude that the officials who chose to include prayer did so because they wished to encourage or endorse prayer itself. County of Allegheny v. ACLU, 492 U.S. at 618 ("Where the government's secular message can be conveyed by two symbols, only one of which carries a religious meaning, an observer might reasonably infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith").

Petitioners' second asserted secular purpose— a recognition and acknowledgment of religion— denies the essential nature of prayer. Prayer is not passive; it is active. Prayer does not merely "recognize" and "acknowledge" religion; "[i]t is a solemn avowal of divine faith and supplication for the blessings of the Almighty." Engel v. Vitale, 370 U.S. at 424. If it is not permissible for government to induce and encourage public school children to meditate on the Ten Commandments, if it is not permissible for government to encourage or endorse silent prayer in the classroom, then it is assuredly not permissible for government to choose a clergy who will pray at an important public school function and to choose what kind of prayer that clergy will be allowed to deliver. "[I]t is no part of the business of government to compose . . . prayers for any group of the American people to recite." Id. at 425. A government that advises chosen clergy regarding the form of prayer that is acceptable to government officials is in the business of composing prayer. Can there be any doubt that a government that engages in such activities is intending to endorse not only the religion itself, but a particular type of neutered, generic religion? Can there be any doubt that a government that engages in such activities is not maintaining the neutrality towards religion and between religious beliefs that the Establishment Clause demands? As this Court has stated, "[h]owever desirable . . . [the government's purpose] might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." Stone v. Graham, 449 U.S. at 42.

2. The effect of including prayer in the promotional and graduation ceremonies of public middle schools and high schools is to convey a message of endorsement of religion Petitioners do not explain how the inclusion of prayer in the promotional and graduation ceremonies organized, supervised, and run by public school officials can do anything but convey the message that those officials endorse religion as one of the values they are responsible for inculcating. Petitioners simply state these facts: (1) the prayers are delivered and prepared by clergy, rather than by school officials; (2) the ceremony occurs only once in each student's career; (3) the prayers are brief; (4) the prayers do not take place in a classroom; (5) attendance is not mandatory; and (6) parents and friends are present. Pet.Br. at 47-48. Petitioners make no attempt to explain, however, how these facts diminish the religious message of endorsement conveyed by prayer at public school ceremonies. Indeed, they do not.

Consider, from a child's view, the importance of his or her promotional or graduation ceremony. This one day is the culmination and the reward of years of effort. This one day is his or her day to be recognized, applauded, congratulated for his or her achievements. The importance of graduation day for an eighth grade or twelfth grade student cannot be minimized. As the district court recognized: While the fact that graduation is a special occasion distinguishes this school day from all others, the uniqueness of the day could highlight the particular effect that the benediction and invocation may have on the students. The presence of clerics is not by itself determinative. It is the union of prayer, school, and important occasion that creates an identification of religion with a school function. The special nature of the graduation ceremonies underscores the identification that Providence public school students can make. App.B at 24a (footnote omitted).

Consider, from a child's point of view, the planning for his or her graduation ceremony. Teachers have selected the format and the program. Teachers have chosen who will deliver speeches, who will sing, who will hand out diplomas. Teachers have decided who will open and close the ceremony and, in this case, teachers have decided that the person who will do this is a member of the clergy. Teachers "practice" the ceremonies with the children who are graduating. They tell the children how to line up, where to walk, where to sit, when to sit and stand, and generally how they should behave. Teachers, in short, are running this show.

Consider, as well, the graduation ceremony itself. It is typical for the children who are being promoted or who are graduating to be seated together, for family and friends to be seated apart. When the ceremony begins, when, in this case, the clergy rises to deliver the invocation— what will the child see? He will see school officials and teachers standing and adopting stances appropriate to prayer. He will have been told to stand himself. Indeed, he will have no choice but to stand himself, for to adopt a stance different from the rest of his classmates and from his teachers will be to cause a disruption in the ceremony. He will hear a prayer being offered. And he will have, inescapably, the sense that teachers and school officials are endorsing and supporting the message being delivered. Moreover, in choosing the clergy, by making him or her part of this important public school ceremony, petitioners have unequivocally lent the support of government "to the communication of a religious organization's religious message." County of Allegheny v. ACLU, 492 U.S. at 601.

Petitioners have used the machinery of government to encourage participation in a religious exercise. Wallace v. Jaffree, 472 U.S. at 73 n.2 (O'Connor, J., concurring). This is a violation of the Establishment Clause.

3. Petitioners' practice impermissibly entangles government with religion Petitioners argue that their practices avoid the pitfalls of government entanglement with religion because school officials merely distributed, but did not formulate, the "Guidelines for Civic Occasions," and because school officials do not write or monitor the officiating clergy's prayers. Pet.Br. at 44 n.43. Petitioners do not accurately state the pertinent facts. According to the parties' Agreed Statement of Facts: Defendant Robert E. Lee, principal of the Nathan Bishop Middle School, received, from Assistant Superintendent of Schools Arthur Zarrella, a document entitled "Guidelines for Civic Occasions" as a guideline for the type of prayer to be included in the graduation ceremony of the Nathan Bishop Middle School . . . Defendant Robert E. Lee, provided to Rabbi Gutterman a copy of the "Guidelines for Civic Occasions" . . . and, in addition, spoke personally to Rabbi Gutterman to advise him that prayers that he gave at the invocation and benediction should be non-sectarian in nature. (J.A.12-13, PP14, 17). The guidelines in question, published by the National Conference of Christians and Jews, include, among other suggestions, "appropriate" opening ascriptions to be used for the deity in public prayer. (J.A.21). The guidelines also suggest that public prayer should "remain faithful to the purposes of acknowledging divine presence and seeking blessing, not as opportunity to preach, argue or testify." Id.

Clearly, petitioners not only choose which religious sects will be represented and will be allowed to pray at public school ceremonies, they also monitor the types of prayers that are offered and "advise" the clergy chosen as to what types of prayers are acceptable. By so doing, petitioners interfere with the way that the chosen clergy practice their respective religious beliefs. See Larkin v. Grendel's Den, 459 U.S. 116, 122 (1982) (state interference with the practice of religious faith violates the First Amendment). This is an impermissible entanglement of government with religion.

D. The historical analysis adopted by the Court in Marsh v. Chambers does not save petitioners' practice of including prayer in public school promotional and graduation ceremonies from constitutional infirmity

Petitioners attempt to broaden the Court's analysis of the constitutionality of legislative prayer set forth in Marsh v. Chambers, 463 U.S. at 791, to encompass the practice of inviting clergy to deliver prayers at public school promotional and graduation ceremonies. The proposition petitioners advance is that "any interpretation of the Establishment Clause faithful to its intended meaning ‘must permit not only legitimate practices two centuries old but also any other practices with no greater potential for an establishment of religion.' " Pet.Br. at 30 n.31, quoting County of Allegheny v. ACLU, 492 U.S. at 670 (Kennedy, J., concurring in the judgment in part and dissenting in part).

This Court has squarely rejected both Marsh's applicability to practices with impact on the relationship between religion and public education and blind validation of all practices arguably acceptable to the framers' generation. See Schad v. Arizona, ___U.S. ___, 59 U.S.L.W. 4761, 4767 (June 21, 1991). Indeed, the Marsh Court itself cautioned that "[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees." Marsh v. Chambers, 463 U.S. at 790. Were historical acceptance alone sufficient to assure the constitutional validity of any given action, the Court would be compelled to uphold such practices as public whipping and racial segregation of schools. Id. at 814 n.30 (Brennan, J., dissenting). See also Committee for Public Education v. Nyquist, 413 U.S. at 792. Discrimination against non-Christians would also be acceptable. County of Allegheny v. ACLU, 492 U.S. at 604-05. Clearly, Marsh was not intended to produce such intolerable results.

Nor can Marsh be read as validating practices which bring religion into the public education system. This Court first recognized in Schempp that historical analyses are misplaced in constitutional inquiries relating to the public schools: [T]he structure of American education has greatly changed since the First Amendment was adopted. In the context of our modern emphasis upon public education available to all citizens, any views of the eighteenth century as to whether the exercises at bar are an "establishment" offer little aid to decision. Education, as the Framers knew it, was in the main confined to private schools more often than not under strictly sectarian supervision. Only gradually did control of education pass largely to public officials. It would, therefore, hardly be significant if the fact was that the nearly universal devotional exercises in the schools of the young Republic did not provoke criticism; even today religious ceremonies in church-supported private schools are constitutionally unobjectionable. 374 U.S. at 238-39 (footnote omitted). See also Wallace v. Jaffree, 472 U.S. at 80 (O'Connor, J, concurring) ("Since there then existed few government run schools, it is unlikely that the persons who drafted the First Amendment, and the state legislators who ratified it, anticipated the problems of interaction of church and state in the public schools"). In Edwards v. Aguillard, 482 U.S. at 583 n.4, this Court specifically stated that "a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted." Finally, the Marsh Court itself observed that legislative prayers are primarily directed to adults, who are not as readily susceptible to "religious indoctrination" or peer pressure as children. Marsh v. Chambers, 463 U.S. at 792.

Thus, petitioners can produce no precedent whatsoever from this Court which supports the extension of Marsh to religious practices within the public schools. In fact, each time this Court has addressed the issue, it has flatly rejected petitioner's argument.

II. GOVERNMENT COERCION HAS NEVER BEEN ACCEPTED AS A NECESSARY ELEMENT OF AN ESTABLISHMENT CLAUSE VIOLATION

A. Historically, the meaning of the Establishment Clause was not limited to a prohibition of government coercion of religion

Petitioner's principal argument is not that this Court has ever adopted their coercion test, but rather that nearly every modern Justice has fundamentally misunderstood the Establishment Clause. Petitioners urge the Court to throw out all its precedents and start over on the basis of petitioners' version of history.

Petitioners' history is not based on any particular practice of the framers with regard to public schools; public schools barely existed. Nor is petitioners' history based on any principle articulated by the framers. Petitioners quote the framers denouncing religious coercion, but the invalidity of religious coercion is not at issue. The dispute is over petitioners' further claim that government can aid religion if it does not coerce. Petitioners do not quote the framers saying that. Nor do petitioners discuss the only eighteenth century debates that would have posed the issue.

Both then and now, the essence of establishment was the designation or endorsement of a preferred religion. Indeed, the leading historical dictionary defines establishment in terms of recognition, and does not even mention coercion: Establishment 2. esp. The "establishing" by law (a church, religion, form of worship). (See ESTABLISH v. 7) Establish 7. From 16th c. often used with reference to ecclesiastical ceremonies or organization, and to the recognized national church or its religion. 3 Oxford English Dictionary 298 (1933).

This definition is fully consistent with American usage in the period of the framing. Coercion to attend the established church had been abandoned well before the Revolution. T. Curry, The First Freedoms 78-104 (1986). Tax support for the established church continued in the southern colonies only up to independence. Id. at 136 (Virginia), 150 (South Carolina), 151-52 (North Carolina), 153 (Georgia), 154-57 (Maryland). In New England, tax support continued into the early national period. But in both regions, defenders of establishment tried to save tax support by letting all denominations participate, by letting each taxpayer choose the church or clergyman to receive his payments and, in Virginia and Maryland, by exempting some citizens entirely. Id. at 141, 145 (Virginia), 155-57 (Maryland), 164 (Massachusetts), 180-81 (Connecticut), 185-86 (New Hampshire), 188-89 (Vermont). These efforts to make establishment nonpreferential and noncoercive did not save it. The most important political battle over disestablishment was fought over precisely this issue in Virginia in 1785, and the nonpreferential general assessment was rejected. Id. at 140-47. By 1833, the last of these laws had been repealed as inconsistent with the American principle of disestablishment. L. Levy, The Establishment Clause 38 (1986).

As tax support and compelled attendance were abandoned, there remained the core of establishment, the endorsement of a state religion. The endorsement issue was most cleanly separated from more coercive forms of establishment in South Carolina and Virginia. The South Carolina Constitution of 1778 declared that "The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State." S.C. Const. art. 38 (1778), reprinted in 6 F. Thorpe, ed., The Federal and State Constitutions 3255 (1906).

No one was required to support this religion in any way. No citizen was required to attend services or contribute financial support. The Constitution guaranteed religious toleration and forbade tax support for churches. Id. at 3255-56. The established religion in South Carolina consisted of a simple declaration that the state endorsed Protestantism. That violated the contemporary understanding of disestablishment, and the provision was repealed in 1790. See S.C. Const. art. 8 (1790), reprinted in Thorpe at 3264. Petitioner's theory implies that the South Carolina Constitution of 1778 could be validly reenacted today.

In Virginia, the last vestige of establishment was a simple act of incorporation for the Protestant Episcopal Church. The act had no coercive effect on the opponents of establishment, but they objected to it because it singled out Episcopalians for "peculiar distinctions" and "particular sanction." T. Buckley, Church and State in Revolutionary Virginia, 1776-1787 at 165 (1977). The legislature repealed the act in 1787. Id. at 170.

In these two instances, Americans of the founding generation actually debated and voted on the question whether government could endorse religion if it did so noncoercively. The answer was no. These debates show how the framers understood disestablishment when they attended to the issue. The dissenting churches, focused on the task of eliminating the former Anglican establishment, insisted on eliminating mere endorsements.

Petitioners ignore this history of real debate over the meaning of disestablishment, and rely instead on a practice that was not debated: prayers and religious declarations among adults in civil ceremonies. These practices were not debated because they were not controversial among Protestants, and there were no other religious minorities with sufficient political strength to raise the issue.

This unexamined Protestant consensus broke down in the face of two developments in the nineteenth century: the emergence of public schools, and large-scale Catholic and Jewish immigration. Catholic complaints about Protestant instruction and Bible reading in the public schools led to political conflict and physical violence. A. Stokes, Church and State in the United States 830-35 (1950). It then became clear that in a more pluralistic society, religious observances in public schools caused the same evils that tax support for churches, and endorsements of Episcopalians, had caused in the time of the framers.

The principle was the same in both generations: government should not support or endorse religion. Such endorsements cause religious strife if they disadvantage any significant group in the community. The framers adopted the principle, and they applied it to all issues that were controversial among Protestants. They did not see its application to practices that substantially all Protestants could accept. But they put the principle in the Constitution, ready to be applied to new examples of the same evil. Protestant-Catholic and Christian-Jewish conflict revealed that government sponsored religious observances, especially among children, caused the very evils that the Establishment Clause had been intended to prevent. American understanding of the reach of the disestablishment principle has expanded with the steady increase in religious pluralism, and the constitutional tradition is reflected in this Court's decisions prohibiting religious observances in public schools.

Petitioners also rely on James Madison's comment that the Establishment Clause meant that "Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Pet.Br. at 24. This comment does not help petitioners. It does not state petitioners' position, and it does not describe the version of the Establishment Clause ultimately adopted.

Madison's statement has three clauses: Congress may not (1) establish a religion, (2) enforce observation, or (3) compel worship. Petitioners rely on clauses (2) and (3) and treat them as exclusive. But clause (1) is as broad as the meaning of establishment. If to establish a religion meant to recognize or endorse a religion in the vocabulary of the late eighteenth century, then Madison said that Congress cannot recognize or endorse a religion. Whatever establishment meant, Madison repeated it; he did not define it or limit it.

Madison cannot have meant for his listeners to ignore clause (1) and consider only clauses (2) and (3). Those two clauses alone would not even prevent tax support for churches. Congress could collect taxes for all religions or a particular religion without compelling anyone to observe that religion or to worship in a particular manner. So with clause (1) included, Madison's statement is entirely consistent with this Court's cases. With clause (1) excluded, Madison's statement is obviously incomplete, even narrower than petitioners' position.

Whatever Madison meant in this isolated comment is of little moment. The House promptly rejected the draft Madison had paraphrased, and adopted Mr. Livermore's sweeping substitute: "Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals of Cong. 731 (J. Gales ed. 1834). Any law referring to religion in any way would "touch" religion; adoption of the Livermore amendment is inconsistent with the claim that this discussion in the House confined the Establishment Clause to coercion.

The clause was further redrafted in the Senate and the Conference Committee. Those debates were not recorded, but votes in the Senate Journal reveal an unsuccessful attempt to narrow the clause to forbid only those establishments that preferred a particular sect, society, or denomination. Four such drafts were ultimately rejected. 3 L. de Pauw, ed., Documentary History of the First Federal Congress of the United States of America 151, 166, 220 (1972). The draft that was finally ratified is one of the most sweeping considered by either House. It forbids not just the establishment of religion, but any law respecting an establishment. It does not merely forbid establishment of a church or even of "a" religion; it forbids "establishment of religion" generally. See Laycock, " ‘Nonpreferential' Aid to Religion: A False Claim about Original Intent," 27 Wm. & Mary L.Rev. 875, 881-82, 886 (1986).

There is no reason to believe that this sweeping clause used "establishment" in less than the full sense accorded to the phrase by the opponents of established religion. Historical usage as reflected in the dictionary, and contemporary political debates over disestablishment in the states, both show that the word included recognition and endorsement. That is what the Establishment Clause prohibits. That is what this Court has always said the Establishment Clause prohibits. Petitioners' attempt to rewrite history ignores the most important evidence.

B. This Court has consistently rejected coercion as a necessary element of an Establishment Clause violation

Not only does history fail to support petitioners' thesis that coercion is a necessary element of an Establishment Clause violation, but this Court has repeatedly rejected such a proposition, both specifically and by inference. Beginning with Everson v. Board of Education, 330 U.S. 1, this Court has clearly understood the Establishment Clause to reach beyond a prohibition of government coerced participation in religion: The "establishment of religion" clause of the First Amendment means at least this: Neither a State nor Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to prefer a belief or disbelief in any religion. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. Id. at 15-16. The Everson Court clearly envisaged constitutional protection against noncoercive governmental involvement in religion.

In Engel v. Vitale, 370 U.S. at 430, the Court, specifically held that "[t]he Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." This Court has consistently and unconditionally adhered to this principle whenever presented with a "coercion" argument. See Abington v. Schempp, 374 U.S. at 224-25 ("Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause"); Committee for Public Education v. Nyquist, 413 U.S. at 786 ("[W]hile proof of coercion might provide a basis for a claim under the Free Exercise Clause, it was not a necessary element of any claim under the Establishment Clause"); Wallace v. Jaffree, 472 U.S. at 60 n.51.

Most recently, Justice O'Connor addressed this issue in her concurrence in County of Allegheny v. ACLU, 492 U.S. at 627-28 (citations omitted): An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization . . . but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. Thus, this Court has never relied on coercion alone as the touchstone of Establishment Clause analysis. . . . To require a showing of coercion, even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy. . . . Moreover, as even Justice Kennedy recognizes, any Establishment Clause test limited to "direct coercion" clearly would fail to account for forms of "[S]ymbolic recognition or accommodation of religious faith" that may violate the Establishment Clause.

The core of the doctrine which petitioners exhort the Court to adopt is summarized in one sentence—"Religious speech alone cannot amount to the kind of government coercion of religious choice that implicates the Establishment Clause." Pet.Br. at 36. Petitioners openly suggest that government may participate in religious debates, may encourage religion, and may criticize religious expression. Id. at 37. The government need not be neutral towards religion generally or towards particular religious sects so long as it does not force or fund the practice of religion. Id. The breadth of government practices which would be constitutionally acceptable under petitioners' doctrine is start ling—government officials would be allowed to exhort citizens to join a favored sect; conversely, the same officials would be free to publicly condemn a disfavored sect. Government would be able to sponsor a Roman Catholic mass, an evangelical prayer meeting, or any other type of religious service the officials in power happen to favor. Indeed, under petitioners' doctrine, joined by the Solicitor General, government would actually be allowed to sponsor a church, so long as no one was forced to join and no tax funds were used to support it. Petitioners cannot possibly invoke historical precedent in support of this argument, for the genesis of the Establishment Clause arose from the religious persecution borne of such sponsorship. See Engel v. Vitale, 470 U.S. at 431 ("The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs").

In interpreting the meaning of the Establishment Clause, this Court has recognized, as it must, that the religious complexion of the country today is vastly different than it was at the time the First Amendment was ratified. Abington v. Schempp, 374 U.S. at 240-41 (Brennan, J., concurring); Edwards v. Aguillard, 482 U.S. at 607 n.6 (Powell, J., concurring). While many government practices favoring Christianity may have been acceptable to the framers' generation, they are no longer acceptable if we are to honor the spirit of both the Free Exercise and the Establishment Clause. County of Allegheny v. ACLU, 492 U.S. at 630 (O'Connor, J., concurring). This Court has always so held. Wallace v. Jaffree, 472 U.S. at 52. To accept petitioners' doctrine would destroy the concept of government neutrality towards religion and would open the door for the very evils the Establishment Clause was intended to prevent.

C. Although coercion has never been held to be a necessary element of an Establishment Clause violation, petitioners' practice is nonetheless coercive

Petitioners advocate an extraordinarily narrow definition of coercion. In so doing, they suggest that this Court eliminate common sense from judicial decision-making.

In case after case, the Court has acknowledged and considered the coercive effect of subtle actions of government officials, especially when those actions impact on children within the public education system. Even Justice Stewart, who advocated an interpretation of the Establishment Clause restricted to government coercion of religious beliefs, recognized the indirect coercive pressures operating on public school children: [A] law which provided for religious exercises during the school day and which contained no excusal provision would obviously be unconstitutionally coercive upon those who did not wish to participate. And even under a law containing an excusal provision, if the exercises were held during the school day, and no equally desirable alternative were provided by the school authorities, the likelihood that children might be under at least some psychological compulsion to participate would be great. Abington v. Schempp, 374 U.S. at 318 (Stewart, J., dissenting).

The subtle pressure upon children to conform to their peers and to emulate teachers has been recognized and acknowledged in every modern decision of this Court involving religion in the public schools. See, e.g., Engel v. Vitale, 370 U.S. at 431 ("When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain"); Grand Rapids School District v. Ball, 473 U.S. at 390 ("The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as a free and voluntary choice"); Wallace v. Jaffree, 472 U.S. at 60 n.51, 71 (O'Connor, J., concurring); Edwards v. Aguillard, 482 U.S. at 584 ("The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure"); Board of Education v. Mergens, 110 S.Ct. at 2378 (Kennedy, J., concurring) ("This inquiry [with respect to coercion] must be undertaken with sensitivity to the special circumstances that exist in a secondary school where the line between voluntary and coerced participation may be difficult to draw").

The very type of subtle pressure which the Court has previously described as coercive operates in this case on children who are being promoted from middle school or are graduating from high school in the Providence school system. Because coercion was not raised as an issue before the district court, no facts were developed by either party with regard to coercion, other than the mere acknowledgment that attendance at graduation and promotional ceremonies is not mandatory for students. (J.A.18, P41). However, this Court need not blind itself to the realities of how promotional and graduation ceremonies are conducted, nor to the importance of those ceremonies to the children involved, nor to the coercion inherent in government proselytizing on behalf of religion. No choice is offered to a child who is offended by the inclusion of prayers in the ceremony except to forego attendance altogether. Graduation ceremonies are organized and formal affairs. The children who are to be recognized enter and leave the room together, after family and friends have already been seated. They enter in a processional, anxiously and proudly watched by their families. In the unlikely event that the child were allowed to avoid coerced participation in prayer by leaving the room, there is overwhelming pressure not to take such obvious nonconforming action. Imagine the embarrassment and humiliation of a nonadhering child who attempts to withdraw from the room as all of his or her classmates are standing to begin an opening prayer. To deny that a child who wished to take such action is not coerced into conformity is nonsensical. As Justice O'Connor observed when discussing voluntary school prayer: Under all of these statutes, a student who did not share the religious beliefs expressed in the course of the exercise was left with the choice of participating, thereby compromising the nonadherent's beliefs, or withdrawing, thereby calling attention to his or her nonconformity. The decisions acknowledged the coercion implicit under the statutory schemes. Wallace v. Jaffree, 472 U.S. at 72 (O'Connor, J., concurring) (citations omitted). Withdrawing from part of a graduation ceremony is clearly even more disruptive than withdrawing from a classroom, and there is a concomitant increase in the coercive pressure on a student not to take such action, even if it were allowed.

If the nonadhering child chooses to be present during his or her promotional or graduation ceremony and not to withdraw during periods of prayer, he or she is subject to the additional subtle coercion inherent in proselytizing. The Court found in Stone v. Graham that the mere posting of religious texts on a schoolroom wall may have the effect of inducing school children "to read, meditate upon, perhaps to venerate and obey, the Commandments." 449 U.S. at 42. If the mere posting of a religious text may have such an effect, how much more of an effect will be realized from group prayer, spoken out loud.

The child who objects to prayer is thus left with only one choice—not to attend his or her promotional or graduation ceremony. No "equally desirable alternatives" are available. Abington v. Schempp, 374 U.S. at 318 (Stewart, J., dissenting). It is difficult to imagine how anyone could seriously argue that the child faced with such a choice is under no pressure to conform to the majority's notion of acceptable behavior. The message which the school and its teachers are delivering to the nonadhering child is clear: We have chosen to include in this all-important ceremony a prayer delivered by a religious person whom we have also chosen. This is your graduation; however, if your beliefs are offended by our choice of religion, you are free to miss your graduation. We will mail you a diploma.

Such a choice, delivered by teachers and government, is nothing short of cruel. It is surely not voluntary in any judicially cognizable sense, and cannot be constitutional under the First Amendment.

CONCLUSION

For the reasons stated above, the decision of the United States Court of Appeals for the First Circuit should be affirmed.

Back to the Table of Contents

The Supreme Court of the United States

October Term, 1991

No. 90-1014

Robert E. Lee, et al., Petitioners,

v.

Daniel Weisman, etc., Respondent

On Writ of Certiorari to the United States Circuit Court of Appeals for the First Circuit

Brief for the Petitioners

Joseph A. Rotella

622 Charles Street

Providence, RI 02904

(401) 861-0012

Jay Alan Sekulow

1000 Thomas Jefferson Street, N.W.

Suite 520

Washington, DC 20007

(202) 337-2273

Charles J. Cooper*

Michael A. Carvin

Peter J. Ferrara

Robert J. Cynkar Shaw,

Pittman, Potts & Trowbridge

2300 N Street, N.W.

Washington, DC 20037

(202) 663-8000

Counsel for Petitioners

*Counsel of Record

Table of Contents

Questions Presented

• I. Do school authorities violate the Establishment Clause by allowing a speaker at a public junior high or high school graduation ceremony to offer an invocation and a benediction that acknowledge a deity?
• II. Whether direct or indirect government coercion of religious conformity is a necessary element of an Establishment Clause violation?

The Parties

• I. The petitioners in this case, who were the appellants in the court of appeals, are Robert E. Lee, individually and as principal of Nathan Bishop Middle School of Providence, Rhode Island; Thomas Mezzanotte, individually and as principal of Classical High School of Providence, Rhode Island: Robert F. Roberti, individually and as superintendent of the Providence School Department; and Vincent P. McWilliams, Mary Bastastini, Roosevelt Benton, Roberto Gonzalez, Donald Lopes, Jintana Pond, Lisa Powers, Mary Smith, and Julia Steiny individually and as members of the Providence School Committee.
• II. The respondent in this case, who was the appellee in the court of appeals, is Daniel Weisman, personally and as next friend of Deborah Weisman.

Opinions Below

Jurisdiction

Constitutional Provision Involved

Statement of the Case

• A. The Graduation Ceremony
• B. The District Court Decision
• C. The Court of Appeals Decision

Introduction and Summary of Argument

Argument

• I. The graduation prayers here did not violate the Establishment Clause because they did not involve government coercion of religious conformity
  • A. Government coercion of religious conformity is a necessary element of an Establishment Clause violation
    • The philosophy of the Founders
    • The fight for religious liberty in Virginia
    • The framing of the Establishment Clause
    • The conduct of the Founders
    • The Founders' understanding of the Establishment Clause
    • Jefferson's "Wall of Separation"
    • This Court's decisions prior to Engel
  • B. There was no government coercion in this case
    • Speech alone cannot coerce religious choice
    • Attendance at the graduation ceremony was voluntary
    • The religious beliefs of those who attended the ceremony were not coerced
• II. Lemon v. Kurtzman does not require invalidation of the venerable tradition of graduation invocations and benedictions

Conclusion

OPINIONS BELOW

The opinion of the Court of Appeals for the First Circuit is reported at 908 F.2d 1090, and is reproduced in the Appendix to the Petition for a Writ of Certiorari at App. 1a.

The opinion of the United States District Court for the District of Rhode Island is reported at 728 F.Supp. 68, and is reproduced in the Appendix to the Petition for a Writ of Certiorari at App. 18a.

JURISDICTION

The judgment of the United States Court of Appeals for the First Circuit was entered on July 23, 1990. No petitions for rehearing were filed. The Petition for a Writ of Certiorari was timely filed on December 21, 1990, and was granted on March 18, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Establishment Clause of the First Amendment to the United States Constitution, which provides: "Congress shall make no law respecting an establishment of religion."

STATEMENT OF THE CASE

A. The graduation ceremony

For many years the Providence School Committee and Superintendent have permitted, but not directed, school principals to include invocations and benedictions in the graduation ceremonies of the city's public junior high andhigh schools. J.A. 12, 24; App. 19a. As a result, some, but not all, public middle and high schools in Providence have included invocations and benedictions in their graduation ceremonies. J.A. 4, 12-16, 18; App. 19a. Such invocations and benedictions are not written or delivered by city employees, but by members of the clergy invited to participate in these ceremonies for that purpose. J.A. 12-13, 18. The schools provide the clergy with guidelines for the ceremonies prepared by the National Conference of Christians and Jews, which stress inclusiveness and sensitivity in authorizing nonsectarian prayer for public civic ceremonies. J.A. 13, 20-21; App. 19a. The clergy who have delivered these prayers in recent years have included Jewish rabbis and ministers of various Christian denominations. J.A. 12-15.

As the parties have stipulated, attendance at these ceremonies is voluntary, J.A. 18, with parents and friends of the students invited to attend. J.A. 18. The high school graduation ceremonies are usually held off school grounds, while middle school promotion ceremonies usually take place on the premises of the school. J.A. 12-16, 18; App. 19a.

Respondent Daniel Weisman's daughter, Deborah, was graduated from Nathan Bishop Middle School, a public junior high school in Providence, in June 1989. J.A. 4-5, 10; App. 19a. Rabbi Leslie Gutterman of the Temple Beth El of Providence delivered the invocation and benediction at the ceremony. J.A. 17; App. 19a.

Four days before the ceremony, respondent sought a temporary restraining order to prevent the inclusion of invocations and benedictions in the graduation ceremonies of the Providence public junior high and high schools. App. 19a. The district court denied the motion the day before the ceremony, due to lack of time to consider it adequately before the scheduled event. App. 19a-20a.

On June 20, 1989, Deborah Weisman and her family attended the scheduled graduation ceremony at Nathan Bishop Middle School. App. 20a. Rabbi Gutterman's invocation addressed a deity at the beginning, and concluded with "Amen." App. 20a. The benediction opened with a reference to God, asked God's blessing, gave thanks to the Lord, and concluded with "Amen." The district court characterized both the invocation and the benediction as "examples of elegant simplicity, thoughtful content, and sincere citizenship." App. 20a.

Deborah Weisman entered Classical High School in Providence in September 1989, and she has continued to attend that school since then. J.A. 10; App. 21a. In July 1989, respondent filed an amended complaint in this action, seeking a permanent injunction against invocations and benedictions in future graduation ceremonies of the Providence public junior high and high schools. App. 21a. The district court ruled in favor of respondent and granted the requested relief.

B. The district court decision

The district court's Establishment Clause analysis, which the court of appeals majority characterized as "sound and pellucid" and adopted as its own, App. 2a, opened with the observation that under this Court's precedents "God has been ruled out of public education as an instrument of inspiration or consolation" because of "the perceived sensitive nature of the school environment and the apprehended effect of state-led religious activity on young, impressionable minds." App. 21a-22a. The district court determined that the invocation and benediction failed under the second prong of the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The practice impermissibly advanced religion "by creating an identification of school with a deity." App. 24a. According to the district court, "the Providence School Committee ha[d] in effect endorsed religion in general by authorizing an appeal to a deity in public school graduation ceremonies." App. 25a. The district court did not reach the other inquiries under Lemon—whether the practice had a secular purpose and whether it fostered an excessive entanglement with religion.

The district court expressly declined to follow the Sixth Circuit's reasoning in Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987), which held that nondenominational invocations and benedictions in public school graduation ceremonies are not per se unconstitutional. The Stein court had relied upon Marsh v. Chambers, 463 U.S. 783 (1983), in which this Court rejected an Establishment Clause challenge to the Nebraska Legislature's practice of opening each day's session with a prayer offered by a paid chaplain. The district court here, however, concluded that the "Marsh holding was narrowly limited to the unique situation of legislative prayer." App. 27a. As proof of this point, the district court noted that Marsh was the only case since 1971 in which the Court did not apply the Lemon test. The district court also noted that application of the Marsh analysis in the context of graduation invocations and benedictions would result in courts "reviewing the content of prayers to judicially approve what are acceptable invocations to a deity." App. 27a.

Finally, the district court made clear that Rabbi Gutterman's invocation and benediction were unconstitutional solely because they made reference to a deity: [N]othing in this decision prevents a cleric of any denomination or anyone else from giving a secular inspirational message at the opening and closing of the graduation ceremonies. Counsel for plaintiff conceded at argument, as she must, that if Rabbi Gutterman had given the exact same invocation as he delivered at the Bishop Middle School on June 29, 1989 with one change— God would be left out—the Establishment Clause would not be implicated. App. 28a. To punctuate the point, the court recast a new version of Rabbi Gutterman's invocation, one cleansed of its references to God and, thus, of its perceived constitutional infirmity. App. 28a.

C. The court of appeals decision

A majority of the Court of Appeals for the First Circuit affirmed, over a dissenting opinion by Judge Campbell. The panel majority simply endorsed the district court's opinion and did not elaborate further. App. 2a.

Judge Bownes concurred separately, concluding that the invocation and benediction violated all three prongs of the Lemon test. Noting that "[a] graduation ceremony does not need a prayer to solemnize it," Judge Bownes concluded that the primary purpose of the practice is religious. App. 9a-10a. He also believed that "it is self-evident that a prayer given by a religious person chosen by public school teachers communicates a message of government endorsement of religion." App. 10a. The practice fostered an excessive entanglement with religion by virtue of the School Committee's policies of providing guidelines for the composition of nondenominational invocations and of permitting school authorities to select the speakers. App. 10a-11a.

Judge Bownes also found this Court's decision in Marsh inapposite. Marsh, according to Judge Bownes, "was based on the ‘unique' and specific historical argument that the framers did not find legislative prayers offensive to the Constitution because the first Congress approved of legislative prayers." App. 11a. Marsh did not apply here "since free public schools were virtually nonexistent at the time the Constitution was adopted." App. 11a (quoting Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987)). Thus, Judge Bownes rejected the Sixth Circuit's analysis in Stein, and also criticized that court's "troubling" inquiry into the nondenominational content of the challenged invocation. App. 12a. Finally, Judge Bownes stated that the Establishment Clause would have been offended by Rabbi Gutterman's invocation and benediction even if cleansed of their references to a deity. Noting that invocations and benedictions "are by their very terms prayers and religious," Judge Bownes concluded that the practice "offends the First Amendment even if the words of the invocation or benediction are somehow manipulated so that a deity is not mentioned." App. 13a.

In dissent, Judge Campbell believed that "Marsh and Stein provide a reasonable basis for a rule allowing invocations and benedictions on public, ceremonial occasions," so long as school authorities take care to invite speakers representing a wide range of religious beliefs and nonreligious ethical philosophies. App. 16a.

INTRODUCTION AND SUMMARY OF ARGUMENT

When this Court invalidated state-mandated prayer in the classroom almost 30 years ago in Engel v. Vitale, 370 U.S. 421 (1962), it peered down the road to this case, and, contrary to the lower courts here, denied that the constitutional compass it was setting would put the Establishment Clause at odds with the "many manifestations in our public life of belief in God." Id. at 435 n.21. The Engel Court thus rebuffed Justice Stewart's concern, expressed in dissent, that beginning the school day with prayer is indistinguishable from opening sessions of Congress and this Court with prayer, or from invoking God's blessing at presidential inaugural ceremonies, or from countless other "official expressions of religious faith in and reliance upon a supreme Being" by institutions and officials of the federal government. Id. at 450 n.9. According to the Engel majority, "[s]uch patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." Id. at 435 n.21.

Notwithstanding the Engel majority's confident assessment of the validity of official ceremonial references to a deity, the courts below prohibited any reference to a deity in public school graduation ceremonies on the basis of the "effects" prong of the Lemon tripartite test. Both the court of appeals majority and the district court equated official reference to a deity with endorsement of religion. Because "reference to a deity necessarily implicates religion," the courts below believed that it was a "forgone conclusion" that the "Providence School Committee ha[d] in effect endorsed religion in general by authorizing an appeal to a deity in public school graduation ceremonies." App. 25a. At the same time, the courts below dismissed Marsh as a narrow exception to Lemon, extending only to official religious practices, such as legislative prayer, that were well known and broadly accepted when the First Amendment was framed in 1791—an exception inapplicable here because the origins of public schooling in this country can be traced back only a century and a half.

Under the reasoning of the lower courts in this case, it is clear that all references to a deity, not just invocations and benedictions, must be cleansed from public school graduation ceremonies. Recitations of the Pledge of Allegiance, for example, would be forbidden. Similarly, commencement speakers would have to take care to avoid references to a deity in their remarks to the graduates. The Rev. Martin Luther King's well-known commencement address to the 1961 graduating class of Lincoln University could not, consistent with the ruling below, be delivered at the 1991 graduation ceremony of a Providence public high school.

But this is not all. For the reasoning of the courts below cannot be confined to public school graduation ceremonies. The invocation and benediction at issue in this case are but a single and unremarkable manifestation of the venerable and broad tradition of official expression of religious values in the public life of the Nation. If the courts below have correctly stated the law, then a staggering variety of ceremonial and familiar practices in our public life must be censored to exclude forbidden references to a deity, just as the district court below revised Rabbi Gutterman's invocation. Indeed, if governmental expression of religious belief is what the First Amendment forbids, Rabbi Gutterman's manifestly nonsectarian prayers at Nathan Bishop Middle School's graduation ceremony surely pale as a constitutional threat when compared to the Reverend Billy Graham's distinctly sectarian prayer to the Holy Trinity at President Bush's inauguration, a ceremony attended by the constitutional officers of all three branches of the federal government and witnessed by millions of people throughout this country and the world. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 671-72 n.9 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part).

By striking down a practice that is as old as American public education itself and that traditionally has been and is now incorporated in the commencement exercises of the vast bulk of schools and colleges throughout the country, the lower courts' ruling forces the candid mind to question the legitimacy of the constitutional doctrine that yields so startling a result. To be sure, we argue in Part II below that the Lemon test does not require invalidation of graduation invocations and benedictions. But we cannot conscientiously argue that the lower courts' application of Lemon was unreasonable. Indeed, since the granting of the Petition for Certiorari in this case, both the California Supreme Court and the Court of Appeals for the Fifth Circuit have decided the precise issue raised here, one upholding graduation invocations and benedictions under Lemon and the other striking them down.

The division among the lower courts on the issue of graduation prayer, however, is far from atypical in the jurisprudence that has developed under Lemon's tripartite test. Since its inception, the Lemon test has spawned a cacophony of conflicting decisions in the lower federal courts, particularly in cases involving practices with historical sanction. And candor requires us to add, respectfully, that the anomalies spawned by Lemon have not been limited to the inferior federal courts. Not surprisingly, a majority of the Justices of this Court have expressed dissatisfaction with aspects of the Lemon test.

More telling, however, is the dissatisfaction with Lemon implied in the Court's decision in Marsh. In upholding the Nebraska Legislature's practice of opening its sessions with a prayer offered by a paid chaplain, the Marsh Court did not attempt the exceedingly difficult task of justifying the practice at issue under the Lemon test. Indeed, Justice Brennan observed in dissent that, "if the Court were to judge legislative prayer through the unsentimental eyes of our settled doctrine [i.e., the Lemon test], it would have to strike it down as a clear violation of the Establishment Clause." Marsh, 463 U.S. at 796 (Brennan, J., dissenting). But the Lemon test not only is unsentimental, it is indifferent to our Nation's heritage of official ceremonial acknowledgments of religious faith, and woodenly applying its formulaic prescription would have required the Marsh majority to ignore the common-sense proposition on which its decision was largely premised: It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain [to deliver opening prayers] for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.

Marsh, 463 U.S. at 790. Thus, in Marsh, and we submit, in this case, the Lemon test was ill-suited to assist the Court in its essential task, which Justice Brennan well described in Abington School Dist. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring): "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers."

In the pages that follow, we demonstrate that the history surrounding the framing and ratification of the Establishment Clause reveals two points of controlling significance in this case. First, by making particular provision for religious liberty within the otherwise general First Amendment protection of expression, the Framers did not intend to deprecate or restrain religious expression in the life of the nation. The Establishment Clause was not intended to operate as some sort of constitutional gag order, enjoining public officials and their invitees to omit any reference to God from civic ceremonies. To the contrary, public ceremonial acknowledgments of faith in God were welcomed and encouraged by the Founders; they, certainly no less than contemporary Americans, were "a religious people whose institutions presuppose[d] a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).

Second, the history of the First Amendment reveals why the Founders engaged in and encouraged official ceremonial expressions of religious faith: such references did not involve the government's coercive powers. The struggle for religious freedom in this country was animated by an overriding philosophical premise—that matters of conscience can be influenced only by reason, not force, and that in appealing to reason, "all men [should] be free to profess, and by argument to maintain, their opinion in matters of religion." Virginia, Act for Establishing Religious Freedom (1785), in 5 The Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987) (hereinafter "Kurland"). The Founders did not fear expression of religious values by public officials; they feared coercion of religious values by public officials. The First Amendment was designed by the Framers to protect only against the latter.

ARGUMENT

I. THE GRADUATION PRAYERS HERE DID NOT VIOLATE THE ESTABLISHMENT CLAUSE BECAUSE THEY DID NOT INVOLVE GOVERNMENT COERCION OF RELIGIOUS CONFORMITY

A. Government coercion of religious conformity is a necessary element of an Establishment Clause violation

1. The philosophy of the Founders Among the Founders, Madison and Jefferson were "the architects of our principles of religious liberty." American Jewish Congress v. City of Chicago, 827 F.2d 120, 132 (7th Cir. 1987) (Easterbrook, J., dissenting). The blueprint, however, was in large part provided by John Locke, probably the foremost exponent of the classical liberal philosophy of government that animated the Framers generally, and Jefferson particularly. In his Letter Concerning Toleration, Locke distinguishes between government coercion relating to religion, which he deemed unjustifiable, and government expression or persuasion concerning religion, which he deemed unobjectionable. Locke wrote: The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind. . . . Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgment that they have framed of things. It may indeed be alleged that the magistrate may make use of arguments, and thereby draw the heterodox into the way of truth, and procure their salvation. I grant it; but this is common to him with other men. . . . Every man has commission to admonish, exhort, convince another of error, and, by reasoning, to draw him into truth; but to give laws, receive obedience, and compel with the sword, belongs to none but the magistrate. And upon this ground, I affirm that the magistrate's power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent, because they are not proper to convince the mind.

These views on religious liberty form a common thread running throughout Madison's and Jefferson's writings on the subject, and are reflected perhaps nowhere more distinctly than in Jefferson's Notes on the State of Virginia. Jefferson, Notes on the State of Virginia, Query 17, 157-61 (1784) (hereinafter "Notes"), in Kurland, supra p. 14, at 79-80. Jefferson opened by recounting that this country was settled largely by immigrants fleeing the coercion, indeed persecution, of English laws demanding their conformity to and support of the established Anglican Church. Many of those settlers, however, including those who established Virginia, "shewed equal intolerance" of differing religious faiths once they became "[p]ossessed . . . of the powers of making, administering, and executing the laws. . . ." Id.

In 1776, Jefferson noted, the newly independent Commonwealth of Virginia adopted a Constitution containing a Declaration of Rights with a clause guaranteeing religious liberty. Jefferson complained that in obedience to the Virginia Constitution's guaranty of religious freedom, the legislature had repealed only the prior acts of the English parliament compelling observance of and support for the established English church. The legislature did not repeal prior acts of the colonial assembly that coerced conformity to the Christian religion by, inter alia, disqualifying dissenters from holding public office and imposing criminal penalties. Jefferson made clear that the freedom to profess one's religious opinions publicly is integral to the freedom to have religious opinions. And the free exercise of the right to form and profess one's religious sentiments causes no injury, while subjecting that right to government coercion causes no good. As Jefferson put it: The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws. . . . The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. . . . Constraint may make him worse by making him a hypocrite, but it will never make him a truer man. . . . Reason and free inquiry are the only effectual agents against error. . . . It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: Whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desirable? . . . Difference of opinion is advantageous in religion. The several sects perform the office of a Censor morum over each other. . . . What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. . . . [W]e cannot effect [truth] by force. Reason and persuasion are the only practicable instruments. Notes, in Kurland, supra p. 14, at 79-80.

2. The fight for religious liberty in Virginia In 1779, Jefferson drafted an "Act for Establishing Religious Freedom." This Court has often recognized that the history surrounding the Virginia General Assembly's enactment in 1786 of Jefferson's bill accurately reflect "the long and intensive struggle for religious freedom in America" and is "particularly relevant in the search for the First Amendment's meaning." McGowan v. Maryland, 366 U.S. 420, 437 (1961). The Religious Freedom Act was aimed specifically at government coercion in the form of (1) taxation for the support of religion; (2) religious tests for holding public office; and (3) government restraints on the propagation of religious beliefs. The Act's substantive provision reads as follows: [N]o man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or beliefs; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. Virginia, Act for Establishing Religious Freedom, in Kurland, supra p. 14 at 85.

As Judge Easterbrook has noted, the Act "does not protest government use of persuasion on matters religious; it is concerned with compulsion alone." American Jewish Congress, 827 F.2d at 135 (Easterbrook, J., dissenting). Indeed, far from protesting government use of persuasion on religious matters, the Act guarantees to "all men" freedom of religious expression. "All men" clearly includes those holding public office, for an essential purpose of the Act was to render religious belief and expression irrelevant to one's "civil capacities," such as the ability to seek and hold public office. That government and government officials are no less free than ordinary citizens to express religious opinions is thus clear from the Act's substantive protections. But if any doubt persists on this point, it is foreclosed by the Act's preamble, which itself contains a full-bodied expression of religious belief, arguing in effect that the principles reflected in the Act were Divinely inspired. The preamble provides in pertinent part: Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do. . . . Virginia, Act for Establishing Religious Freedom, in Kurland, supra p. 14, at 84.

If Rabbi Gutterman's invocation in this case violated the Establishment Clause, then Virginia's enactment of the Act for Establishing Religious Freedom was itself an establishment of religion, and if reenacted today, Jefferson's preamble would have to be deleted. See American Jewish Congress, 827 F.2d at 136 (Easterbrook, J., dissenting).

Jefferson's Religious Freedom Act was not enacted until 1786, in the aftermath of Patrick Henry's unsuccessful attempt to pass "A Bill Establishing A Provision for Teachers of the Christian Religion" ("Assessment Bill"). Henry's bill was "nothing more nor less than a taxing measure for the support of religion, designed to revive the payment of tithes suspended since 1777." Everson v. Board of Educ., 330 U.S. 1, 36 (1947) (Rutledge, J., dissenting). The Assessment Bill permitted each taxpayer to designate which Christian church would receive his payment, and in default of a designation, the taxes were paid into a public fund to aid "seminaries of learning." Id.

Madison led the opposition to the Assessment Bill, briefing the arguments against it in his famed Memorial and Remonstrance Against Religious Assessments. Madison, Memorial and Remonstrance Against Religious Assessments (1785) in Kurland, supra p. 14, at 82-84. The Memorial and Remonstrance is a bill of particulars against the use of government power to coerce support of religion. Madison's main arguments against the Assessment Bill sprang from a common theme, stated in his preamble: that the Bill, "if finally armed with the sanctions of a law, will be a dangerous abuse of power . . ." Id. at 82.

In his lead argument against the measure, Madison invoked the Lockean postulate, enshrined in Virginia's Declaration of Rights, " ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.' " Id. p 1. Freedom of religion, being "in its nature an unalienable right," wrote Madison, is not abridged by one's membership in "Civil Society," and thus is subject neither to "the will of the majority" or "to that of the Legislative Body." Id. pp 1, 2. Madison warned that a government "which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever." Id. p 3. He argued further that "compulsive support" of religion frustrates rather than maintains "the purity and efficacy of Religion," noting that historically religion had flourished "without the support of human laws," while "ecclesiastical establishments" had led to religious "superstition, bigotry and persecution." Id. at 82-83 pp 4, 6, 7. Finally, Madison warned against arming the proposed Bill "with the force of a law," and argued that "attempts to enforce by legal sanctions" measures as widely unpopular as the Assessment Bill would "tend to enervate the laws in general." Id. at 83-84 pp 11, 13.

For Madison, the evil of the Assessment Bill was its proposed use of government power to coerce support of religion, which he saw as the sine qua non of an "establishment." Nowhere in his Memorial and Remonstrance did he voice concern about expression of religious beliefs by government or its officials. To the contrary, not only did he extol the "freedom to embrace, to profess and to observe" religious beliefs (id. at 82 P 4), he exercised that freedom in the Memorial and Remonstrance itself, closing it with a prayer to "the Supreme Lawgiver of the Universe."

The Memorial and Remonstrance not only brought about the defeat of the Assessment Bill, it also generated popular support for Jefferson's Religious Freedom Bill, which passed in January 1786. Many years later, Madison praised the Religious Freedom Bill as "a true standard of Religious liberty," describing it as follows: "Here the separation between the authority of human laws, and the natural rights of Man excepted from the grant on which all political authority is founded, is traced as distinctively as words can admit, and the limits to this authority established with as much solemnity as the forms of legislation can express." Madison, Detached Memoranda (1817) (hereinafter "Detached Memoranda"), in Kurland, supra p. 14, at 103.

3. The framing of the Establishment Clause Following hard on the heels of this experience in Virginia were the debates in the First Congress over the Establishment Clause of the First Amendment. Madison, a member of the House of Representatives from Virginia, again played the leading role. The debate in the States over ratification of the Constitution had centered on the Constitutional Convention's failure to include a bill of rights. Opposition to the Constitution was led by the Anti-Federalists, who believed that a bill of rights was essential to preserving individual liberties against encroachment by the national government. Supporters of ratification, the Federalists, argued that a bill of rights was unnecessary because the national government lacked the delegated power to act in a manner that would violate their religious and other civil liberties. Still, two states— Rhode Island and North Carolina—refused to ratify the Constitution in the absence of amendments in the nature of a bill of rights, and three of the ratifying states—New Hampshire, New York, and Virginia—proposed that an amendment guaranteeing religious freedom be offered by the First Congress. J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id. at 328.

Madison took the lead in introducing a set of proposed amendments in the House of Representatives, including the following proposal concerning religious freedom: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 451 (J. Gales ed. 1834). Madison's proposals were referred to a Select Committee consisting of Madison and ten others. The Committee ultimately reported out the following language: "[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id. at 729.

The debate over this proposal in the House was not extensive. Madison's comments make clear, however, that the purpose of the proposed amendment was to protect against government coercion of religious observance or support. Madison advised his colleagues that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id. at 730, in Kurland, supra p. 14, at 93. Representative Benjamin Huntington agreed with Madison's understanding of the amendment's meaning, but feared that "others might find it convenient to put another construction upon it." He suggested that it might be construed to prevent enforcement in federal court of private pledges to contribute to the support of a minister or a church building. See id. at 730-31, in Kurland, supra p. 14, at 93. Madison answered that insertion of the word "national" before the word "religion" in the proposal would "point the amendment directly to the object it was intended to prevent." Id. at 731, in Kurland, supra p. 14, at 93. That object, according to Madison, was that "one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform." Id., in Kurland, supra p. 14, at 93.

The debates in the Senate were secret, and there is no record of any further debate on the Religion Clauses in the House. Wallace v. Jaffree, 472 U.S. at 97 (Rehnquist, J., dissenting). And while the proposed amendment was revised several times before the House and Senate finally agreed on the language that ultimately became the First Amendment (see id.), none of the changes affected Madison's points about the intended meaning of the Establishment Clause. American Jewish Congress, 827 F.2d at 136 (Easterbrook, J., dissenting).

Thus according to the chief architect and sponsor of the First Amendment in the First Congress, the Establishment Clause was designed to protect against laws compelling conformity in matters of religion. No one disagreed with Madison's statements concerning the intended meaning of the provision. Indeed, the debate in the House over the wording of the amendment did not question the intended meaning of the amendment—on that issue Madison's view was accepted as common ground. Rather, the debate over the Establishment Clause focused on the concern that the proposed language might be construed to go beyond the meaning ascribed to it by Madison.

But whatever else may be said about the views of the First Congress concerning the meaning of the Establishment Clause, this much is clear: the Framers of the First Amendment did not conceive that constitutional protection against government establishments of religion would forbid the expression of religious opinions by government or its officials. While there was no discussion on this issue among the Founders at the time of the framing of the First Amendment, evidence of their views on it abounds nonetheless. For "their actions reveal their intent." Marsh, 463 U.S. at 790.

4. The conduct of the Founders As this Court has often recognized, our Nation's tradition of official ceremonial expressions of religious beliefs dates back to its inception. See, e.g., March v. Chambers, 463 U.S. at 787-88; Lynch v. Donnelly, 465 U.S. 668, 673-74 (1984). America was founded on an appeal "to the Supreme Judge of the world" and to "the laws of nature and of nature's God." The Declaration of Independence also proclaimed that all men "are endowed by their Creator with certain inalienable rights," and relied on "the protection of Divine Providence." George Washington, in his first inaugural address, sought the blessings of God, "that Almighty Being" and "the Great Author of every public and private good." Indeed, Washington thought "it would be peculiarly improper to omit in [his] first official act [his] fervent supplications to that Almighty Being who rules over the universe. . . ." Almost without exception, Washington's successors in office, up to and including President Bush, have included in their inaugural addresses statements of religious sentiment and supplications for God's assistance in discharging their official obligations. Indeed, the inaugural addresses of both Thomas Jefferson (at both his first and second inaugural ceremonies) and James Madison contain moving expressions of religious faith.

At the conclusion of Washington's inauguration ceremony, the new President and both Houses of Congress attended a religious service conducted by the First Episcopal Bishop of New York at St. Paul's Chapel in New York City, in accordance with a joint congressional resolution providing for the service. See A. Stokes & L. Pfeffer, Church and State in the United States 87 (rev. 1st ed. 1964).

On the day after the House of Representatives of the First Congress voted to adopt the Establishment Clause, the House adopted a resolution requesting President Washington to proclaim "a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God." Lynch, 465 U.S. at 675 n.2. Washington responded by proclaiming November 26, 1789, as a day of thanksgiving in which to offer "our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions." Id. Washington issued a similar proclamation of thanksgiving in 1795, and this practice was followed by President John Adams, who issued two such proclamations, and President Madison, who issued four. R. Cord, Separation of Church and State: Historical Fact and Current Fiction 53 (1982). This tradition has been continued throughout our history by virtually every President, with the exception of Jefferson.Lynch, 465 U.S. at 675 n.2; 3 A. Stokes, Church and State in the United States 180-93 (1950).

The First Congress also adopted the policy, followed ever since, of opening daily sessions of the House and Senate with prayers by an official chaplain. Marsh, 463 U.S. at 787-88. Madison was a member of the House Committee that proposed the policy, and he voted in favor of the bill authorizing it. Id. at 788 n.8. The chaplaincy practice was also followed by the Continental Congress from its inception in 1774. Marsh, 463 U.S. at 786-87.

Congress's early chaplains not only opened daily sessions with prayer, they conducted Sunday worship services in the hall of the House of Representatives. Beginning around 1800, the House of Representatives authorized the use of its hall for regular Sunday religious services performed by congressional chaplains or by visiting ministers. 1 Stokes, Church and State in the United States 499-507 (1st ed. 1950). Both Jefferson and Madison often attended these services while serving as President. Id. at 499, 501.

Nor did the First Congress hesitate to reenact the Northwest Ordinance of 1787, which provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Wallace v. Jaffree, 472 U.S. at 100 (Rehn quist, J., dissenting).

Ceremonial references to God have not been limited to the political branches of the federal government. This Court's own sessions have been opened by the Crier with the invocation "God save the United States and this Honorable Court" at least since the time of Chief Justice Marshall. See Engel v. Vitale, 370 U.S. 421, 446 (1962) (Stewart, J., dissenting). It is also noteworthy that Chief Justice John Jay, in March 1790 advised district court Judge Richard Law that the custom in New England courts of having a clergyman attend court sessions as chaplain "should in my opinion be observed and continued" during sessions held by Chief Justice Jay as circuit justice. 2 The Documentary History of the Supreme Court of the United States, 1799-1800 13 (1990).

5. The Founders' understanding of the Establishment Clause What this Court said in Marsh is equally apt here: "In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent." Marsh, 463 U.S. at 790. Against the historical backdrop described above, it cannot reasonably be maintained that the Framers of the First Amendment intended the Establishment Clause to prohibit official expressions of religious sentiments—a practice that they freely engaged in and encouraged as public officials before, during, and after the framing of the Amendment itself. To the contrary, this conduct of the Founders reflected their intentions concerning the Establishment Clause, which in turn reflected their philosophical beliefs concerning the proper relationship between religion and government.

As previously discussed, those who led the fight for religious freedom that culminated in ratification of the First Amendment valued truth above all else, in spiritual no less than political matters. "Truth can stand by itself," said Jefferson, "error alone . . . needs the support of government." Notes, in Kurland, supra p. 14, at 80. The Founders knew that an "establishment" of religion could neither arise nor survive without government coercion, and that it would perish wherever men were "free to profess, and by argument to maintain, their opinion in matters of religion." Virginia, Act for Establishing Religious Freedom, in Kurland, supra p. 14, at 85. A simple statement of religious belief cannot coerce adherence by others. In Jefferson's vivid formulation, "[i]t neither picks my pocket nor breaks my leg." Notes, in Kurland, supra p. 14, at 80. This is no less true of the religious expressions of government and its officials, so long as neither employs the state's coercive powers.

In none of the historical examples discussed above did the religious expressive activities involve an attempt to use government power to coerce religious conformity. No one was required to attend the inaugural ceremonies of Presidents Washington, Jefferson, or Madison, and those who chose to attend were in no way required to accept or support the religious sentiments expressed by the speakers. No one was required to give thanks on the day designated for that purpose in the proclamations of President Washington and his successors, and those who chose to do so were in no way required to accept or support the religious beliefs professed by the proclamation's author. No one, legislator or citizen, was required to attend the chaplain's invocations opening sessions of Congress, nor to accept or support the religious beliefs expressed by the chaplain. Because these expressive activities did not coerce religious conformity, the Founders engaged in them without fear that they violated the Establishment Clause.

Thus, the history surrounding the proposal, framing, and ratification of the Establishment Clause leads to this conclusion: the "wall of separation" between religion and government erected in the First Amendment was not understood or intended by the Framers to be a quarantine, so thoroughly isolating God from civic life that even acknowledgments of His existence were forbidden. Rather, the Establishment Clause was intended to separate, and thus to protect, religion from the coercive power of government.

6. Jefferson's "Wall of Separation" None of the Founders disagreed with this understanding of the Establishment Clause, including the author of the famous "wall of separation" metaphor. Indeed, Jefferson's letter to the Danbury Baptist Association is a concise summary of the central philosophical precepts on which he had elaborated at greater length in his earlier Notes on the State of Virginia, see supra at 16-18.

The nature of Jefferson's "wall of separation between Church and State" is illuminated by the following statement appearing earlier in the same sentence of his Danbury letter: "the legislative powers of government reach actions only, and not opinions. . . ." Danbury Letter, in Kurland, supra p. 14, at 96. This statement, versions of which recur throughout Jefferson's writings on this subject, makes clear his view that the evil from which the church was constitutionally separated was not the State qua state, but rather the State's "legislative powers"—its powers to coerce. One cannot read Jefferson's other, more elaborate writings on the relationship between religion and government and fail to grasp this essential distinction.

While Jefferson's refusal to issue Thanksgiving proclamations as President would, at first blush, appear inconsistent with this point, he explained his decision precisely in terms of coercion. In a letter to Rev. Samuel Miller, President Jefferson stated that he had no authority "to prescribe" or "to direct" the "religious exercises of his constituents." Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808) (hereinafter "Letter to Miller"), in Kurland, supra p. 14, at 98, 98-99. Jefferson disagreed with the argument that a Thanksgiving proclamation would be merely recommendatory: "It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion." Id. at 99. Jefferson made a similar point in his second inaugural address: "In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion, to prescribe the religious exercises suited to it. . . ." Inaugural Addresses of the Presidents, supra n.23, at 20. Elsewhere in his second inaugural address, as previously discussed, supra n.26, Jefferson expressed his own religious sentiments and movingly sought God's blessings.

These statements make clear that Jefferson refrained from issuing Presidential Thanksgiving proclamations because he viewed them as coercive and thus "interdicted by the Constitution." Letter to Miller, in Kurland, supra p. 14, at 98. He obviously entertained no such objection to presidential expressions of personal religious belief, such as that contained in his second inaugural address. Thus, while one may disagree with Jefferson's view that a recommendatory Thanksgiving proclamation would nonetheless be coercive (as did the other Founders, and as we do below), one cannot disagree that Jefferson believed coercion to be a necessary element of a First Amendment violation.

7. This Court's decisions prior to Engel That government coercion of religious conformity was understood by the Framers to be a necessary element of an Establishment Clause violation should not startle the modern legal mind. Rather, until this Court's decision in Engel, the question of government coercion had been central to this Court's Establishment Clause jurisprudence. See, e.g., McGowan v. Maryland, 366 U.S. 420, 453 (1961) ("We do not hold that Sunday legislation may not be a violation of the ‘Establishment' Clause if it can be demonstrated that its purpose . . . or its operative effect—is to use the State's coercive power to aid religion."); Zorach v. Clauson, 343 U.S. 306, 311 (1952) ("If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take religious instruction, a wholly different case would be presented."); Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 209 (1948) ("The operation of the state's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects."); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (The Establishment Clause "forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.").

Though Engel itself involved government coercion, 370 U.S. at 430-31, the Court's dictum that the purposes underlying the Establishment Clause "go much further" than prohibiting official coercive influence on religious belief, id. at 431, severed the key principle to which prior caselaw had been anchored. As we noted at the outset, the Engel Court did not intend to place the Establishment Clause on a collision course with the "many manifestations in our public life of belief in God." Id. at 435 n.21. But by breaking the link to coercion, Engel set the Establishment Clause on a path not imagined by that Court, to Lemon and judicial supervision over the location and relative size of creches, candy canes, talking wishing wells, Christmas trees, etc., etc., in official Christmas holiday displays.

As we will show below, Lemon and its progeny do not require invalidation of the graduation prayers challenged here. We turn first, however, to the question whether the Establishment Clause's safeguard against government coercion of religious conformity was violated by the invocation and benediction offered by Rabbi Gutterman.

B. There was no government coercion in this case

We do not doubt that "[s]peech may coerce in some circumstances. . . ." County of Allegheny, 492 U.S. at 661 (Kennedy, J., concurring in the judgment in part and dissenting in part). But this case discloses no government action coercing religious conformity. Neither respondent nor his daughter were required to attend the graduation ceremony at Nathan Bishop Middle School, and, once there, they were in no way compelled, or even encouraged, to conform to the religious beliefs expressed by Rabbi Gutterman. Indeed, respondent has never claimed otherwise. Rather, his complaint is that he "is opposed to and offended by the inclusion of prayer in the public school graduation ceremony of his child both at the middle school and the high school level." J.A. 5. See also J.A. 18. Moreover, neither the district court nor the court of appeals suggested, much less found, that Providence school officials had engaged in even indirect coercion of anyone's religious beliefs. See App. 1a-30a.

Thus, this case came before the district court with no evidence even of "subtle coercion, be it in the form of taxation to supply the substantial benefits that would sustain a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing." County of Allegheny, 492 U.S. at 659-60 (Kennedy, J., concurring the judgment in part and dissenting in part). Nevertheless, in the eyes of the district court, the simple "union of prayer, school, and important occasion" yielded an identification of religion with the public school, and so an Establishment Clause violation. App. 24a. As we show below, however, the combination of religious expression and the particular setting here cannot result in any government infringement of religious liberty prohibited by the Constitution. Religious speech alone cannot amount to the kind of government coercion of religious choice that implicates the Establishment Clause. And the setting here, a public secondary school commencement ceremony, does not add any of the coercive elements that could realistically turn Rabbi Gutterman's expressions of religious sentiment into instruments of religious compulsion.

1. Speech alone cannot coerce religious choice It bears repeating that the Framers themselves freely engaged in religious speech at the same time they were disabling government from using its power to coerce religious choice. Indeed, the Framers often used religious speech in the very instruments by which they disabled government's power to interfere with religious liberty. See, e.g., Virginia Act for Establishing Religious Freedom, in Kurland, supra p. 14, at 84. Clearly, the Framers were animated by the proposition, in Judge Easterbrook's modern phrasing, that "[s]peech is not coercive; the listener may do as he likes." American Jewish Congress, 827 F.2d at 132 (Easterbrook, J., dissenting). Though the Constitution may "prevent the government from using force or funds to aid or inhibit the practice of religion," at the same time "the government may participate as a speaker in moral debates, including religious ones." Id. Consistent with this notion, this Court has held that the government may encourage what it may not compel. Harris v. McRae, 448 U.S. 297 (1980), and may critically label expression that it may not otherwise burden, Meese v. Keene, 481 U.S. 465 (1987). See also Block v. Meese, 793 F.2d 1303, 1314 (D.C. Cir. 1986) (quoting L. Tribe, American Constitutional Law 588, 590 (1978)) ("[T]he guarantee of freedom of speech ‘does not mean that government must be ideologically' neutral," or ‘silence government's affirmation of national values,' or prevent government from ‘add[ing] its own voice to the many that it must tolerate.' ").

Respondent's effort to silence speech that "offends" him is limited by no principle save each listener's unique sensibilities. It reduces to a rule that all "government speech about religion is per se suspect." County of Allegheny, 492 U.S. at 661 (Kennedy, J., concurring in the judgment in part and dissenting in part). If that is the operative principle of the Establishment Clause, all references to God and to religion will have to be removed from civic life. "The holidays, the chaplains, the proclamations, the slogans, the oath, the pledge, and the creche alike give offense—to those of other faiths (or no faith) who feel slighted, to those of the same faith who believe that governmental involvement with religion diminishes both institutions, to those who see the camel's nose." American Jewish Congress, 827 F.2d at 133 (Easterbrook, J., dissenting).

Again, we do not deny that "[s]peech may coerce in some circumstances," County of Allegheny, 492 U.S. at 661 (Kennedy, J., concurring in the judgment in part and dissenting in part), but it is only by virtue of the particular circumstances surrounding speech that government expression may be transformed into a power to interfere unconstitutionally with religious choice. Thus, in Abington School Dist., 374 U.S. at 223, Bible reading was "prescribed as part of the curricular activities of students who are required by law to attend school." In Illinois ex rel. McCollum, 333 U.S. at 209-10, students "compelled by law to go to school for secular education [were] released in part from their legal duty upon condition that they attend the religious classes." And in Engel, 370 U.S. at 430, children were similarly compelled by law to attend class, presented with a state-composed prayer, and given an option to be excused from its recitation—an option available in the circumstances only at the price of the "ridicule and ostracism of their peers for nonconformity." American Jewish Congress, 827 F.2d at 134 (Easterbrook, J., dissenting).

In short, the facts that religious speech occurred on a government platform, was uttered by a government-sponsored speaker, and offended one (at least) member of the audience cannot by itself work a violation of the Establishment Clause.

2. Attendance at the graduation ceremony was voluntary The setting in which the religious speech occurred here reveals no government "pressure upon a student to participate in a religious activity." Board of Educ. v. Mergens, 110 S.Ct. 2356, 2378 (Kennedy, J., concurring in part and concurring in the judgment). Attendance at the Nathan Bishop Middle School's graduation ceremony was entirely voluntary. J.A. 18.

This case is thus unlike the classroom prayer context at issue in Engel. There, the state used its coercive power to compel attendance of students in the classroom. To be sure, nonattendance for religious reasons was excused if the student was willing to endure the stigma of nonconformity associated with leaving the class. The student was put to this difficult choice by virtue of the state's mandatory attendance requirement, because the student was required to be present in the classroom in the first instance. In other words, the costs to the student of leaving the classroom during the morning prayer (e.g., stigma, embarrassment, ostracism) were directly attributable to the state's law requiring the student's presence in the classroom in the first place. Absent the mandatory attendance requirement, there would be no government coercion. See Mergens, 110 S.Ct. at 2372 ("[T]here is little if any risk of official state . . . coercion where no formal classroom activities are involved.").

In contrast, graduates of the Nathan Bishop Middle School, as well as other schools in the Providence school district, were entirely free to stay away from the graduation ceremony; attendance was wholly voluntary. The coercive power of the state was not implicated at all.

Of course, graduates and their parents typically have a strong desire to attend their commencement exercises. But a personal desire, no matter how strong or understandable, to attend some civic ceremony or function— whether it be a public school graduation ceremony, an inauguration ceremony or investiture, a legislative or judicial session, or what ever—simply does not amount to government compulsion to attend the event. Many people came from all over the country, some at great expense and personal sacrifice, to attend President Bush's inauguration ceremony. Still, no one was compelled by the government to attend the event. Those who did, did so voluntarily, despite the fact that the newly elected President would likely continue the inaugural tradition of seeking God's blessing. The strength of respondent's desire to attend his daughter's graduation ceremony does not entitle him to exclude from the proceedings any religious speech that he may find objectionable. A contrary rule would essentially accord editorial privileges over the ceremony to any person desiring to attend it.

3. The religious beliefs of those who attended the ceremony were not coerced Quite apart from the voluntary nature of attendance at public school graduation ceremonies in Providence, it is clear that those who attended Nathan Bishop Middle School's graduation ceremony in 1989 were in no way coerced to accept or support the religious beliefs expressed by Rabbi Gutterman. "No one was compelled to . . . participate in any religious ceremony or activity." County of Allegheny, 492 U.S. at 664 (Kennedy, J., concurring in the judgment in part and dissenting in part). Unlike Abington School Dist., in which the students were asked to stand and recite a prayer in unison, no one was required to join in, agree with, or even listen to Rabbi Gutterman's invocation and benediction.

That students and other children are in attendance at graduation ceremonies does not alter this analysis. Children also attend presidential inauguration ceremonies, legislative and court sessions, and countless other civic ceremonies and events in which religious values are expressed. That fact, standing alone, does not render all religious speech at such occasions coercive. Nor can graduation ceremonies be aptly analogized to the potentially coercive classroom context. The Sixth Circuit in Stein elaborated on the distinctions between graduation ceremonies and classroom instruction: Although children are obviously attending the ceremony, the public nature of the proceeding and the usual presence of parents acts as a buffer against religious coercion. In addition, the graduation context does not implicate the special nature of the teacher-student rela tion ship—a relationship that focuses on the transmission of knowledge and values by an authority figure. 822 F.2d at 1409.

To the Stein court's points we should add that graduation invocations and benedictions are but brief segments of a much longer, otherwise entirely secular, ceremony. In addition, school authorities do not themselves deliver these ceremonial acknowledgments of religion. They merely invite a private citizen to offer the invocation, authored by the speaker himself, just as they invite other speakers with different secular views to address the audience during the ceremony. Furthermore, though graduation exercises may be held on the premises of a school, J.A. 12-18; App. 19a, they are not part of the pedagogical activities of the school.

Underscoring the lack of coercive influences in the graduation ceremony setting is this Court's acknowledgment in Mergens that secondary school students understand "that schools do not endorse everything they fail to censor." 110 S.Ct. at 2372. See also Jones, slip op. at 12 ("The graduation ceremony lies on the threshold of high school students' transitions into adulthood, when religious sensibilities hardly constitute impressionable blank slates."); Albright, slip op. at 21 ("[H]igh school students are not ‘babes in arms' and . . . are mature enough to understand that a school does not endorse or promote a religion by permitting prayer. . . .").

Just as attendees at Nathan Bishop Middle School's 1989 graduation need not accept or support the religious beliefs expressed in Rabbi Gutterman's invocation and benediction, so also [t]he holder of a nickel need not trust in God, no matter what the coin says, and need not contribute the nickel (or even three pence) to a church. He may labor on Christmas if he likes—though Ebenezer Scrooge had to give Bob Cratchit that day off without governmental compulsion. He may "affirm" rather than "swear" when giving testimony and be silent while others say the Pledge of Allegiance. . . . He need not study or even own a Bible during the "Year of the Bible." And he may turn his back on the creche. American Jewish Congress, 827 F.2d at 133 (Easterbrook, J., dissenting). If Rabbi Gutterman's prayers are held to coerce religious conformity among members of his audience, and thus to be unconstitutional, a staggering variety of traditional and venerable acknowledgments of religion must be extirpated from our public life. It must follow, for example, that this Court's Crier coerces religious conformity when he opens oral argument sessions. There is no principled distinction.

In sum, the religious speech challenged here is devoid of any element of government coercion that could interfere with the religious liberty of the audience. Accordingly, petitioners have committed no offense against "the great object" of the Religion Clauses: the "freedom to worship as one pleases without government interference or oppression." County of Allegheny, 492 U.S. at 660 (Kennedy, J., concurring in the judgment in part and dissenting in part).

II. LEMON V. KURTZMAN DOES NOT REQUIRE INVALIDATION OF THE VENERABLE TRADITION OF GRADUATION INVOCATIONS AND BENEDICTIONS

The courts below held that the graduation invocations and benedictions at issue here had the principal effect of advancing religion—the second prong of the Lemon analysis—and so violated the Establishment Clause. App. 23a. As a result, they did not address the other two components of Lemon.

The holding below rested on the conclusion that "[t]he special occasion of graduation coupled with the presence of prayer creates an identification of governmental power with religious practice." App. 25a. As we have candidly admitted above, we cannot in good conscience urge that this application of Lemon was wholly unfaithful to that precedent. Yet examination of the subsequent development of Lemon—notably this Court's warnings concerning its limits— suggests that a more accurate vision of the Establishment Clause as seen through the lens of Lemon would approve of the kind of graduation prayers at issue in this case.

The courts below were certainly correct that one iteration of the "effects" prong of Lemon focuses on whether a governmental practice appears to endorse or sponsor religion through "a close identification" of government power with religious activities. Grand Rapids School Dist. v. Ball, 473 U.S. 373, 389 (1985). Yet they then went on to apply the Grand Rapids "close identification" notion untempered by this Court's Establishment Clause teaching in other major precedents. Thus the courts below were able to follow a rather simple recipe for their judgment in this case. As the district court put it, "It is the union of prayer, school, and important occasion that creates an identification of religion with the school function." App. 24a. In other words, add religious expression to an important civic event and you have a violation of the Establishment Clause.

In contrast, this Court has never embraced such an absolute analysis. Lemon itself did "not call for total separation between church and state." 403 U.S. at 614. See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973) ("It has never been thought either possible or desirable to enforce a regime of total separation. . . ."); Wallace, 472 U.S. at 69 (O'Connor, J., concurring in the judgment) (noting that "[c]haos would ensue" if every statute that promotes a secular goal but also has "a primary effect of helping or hindering a sectarian belief" were invalidated under the Establishment Clause). To the contrary, the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any." Lynch v. Donnelly, 465 U.S. 668, 673 (1984). As a result, this Court has warned that "[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Id. at 680.

This is the warning ignored, and the error made, by the courts below. The district court forthrightly observed that, in its view, "the Establishment Clause would not be implicated" by the "exact same invocation" if "God would be left out." App. 28a. To underscore this point, the court then recast Rabbi Gutterman's invocation into a court-approved version, deleting only references to God. App. 28a n.10.

With such narrow reasoning, the courts below failed to employ the broader analysis mandated by this Court for application of the Lemon standards. "Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Lynch, 465 U.S. at 694 (O'Connor, J., concurring). It is true that God could be "left out" of the invocation and benediction at issue here. So too could God be left out of the invocation that has traditionally opened this Court's sessions. But the availability of a more secular alternative has never been deemed relevant to the Establishment Clause inquiry. Lynch, 465 U.S. at 681 n.7. See also County of Allegheny, 492 U.S. at 636 (O'Connor, J., concurring in part and concurring in the judgment) (observing that a "more secular alternative" test "is too blunt an instrument for Establishment Clause analysis, which depends on sensitivity to the context and circumstances presented by each case").

Examination of the circumstances of the graduation prayer here does not support the conclusion that such ceremonies produce a "close identification" of government with religion. Including such invocations and benedictions in commencement ceremonies vastly predates the existence of American public schools, and a format for such proceedings was well established by the time government entered education. Clearly, communal traditions, not government action, have been the impetus for including such elements in graduation ceremonies.

In Providence, the School Committee and Superintendent have left the decision to each school whether to include an invocation and benediction in graduation exercises, with the result that some ceremonies have included such prayers, while others have not. J.A. 4, 12-16, 18, 24; App. 19a. No government official prepares or delivers these prayers, though guidelines for prayer at public civic ceremonies from the National Conference of Christians and Jews are provided to the clergy invited to deliver them. J.A. 12-15; App. 19a. In addition to this passive government role, graduation or promotion ceremonies obviously occur only once in a student's career at a school, and an invocation or benediction is merely a brief part of each ceremony. Moreover, the ceremonies are removed from the usual pedagogical setting of the classroom, where attendance is compulsory and authoritative instruction is the normal order of the day. Graduation ceremonies take place rather in a voluntary assembly in which family and friends may accompany the student in this traditional coming-of-age celebration.

This context bears little similarity to those situations in which this Court has invalidated government action under Lemon for conferring an "imprimatur of state approval on religious sects or practices." Widmar v. Vincent, 454 U.S. 263, 274 (1981). See, e.g., Grand Rapids School Dist., 473 U.S. 389-392 (1985) ("symbolic union" between church and state where students move back and forth between religious and "public school" classes in the same private school building, and public school teachers may appear to be "regular adjunct [s]" to the religious school); Abington School Dist., (Bible readings part of prescribed curriculum; conducted under supervision of teachers; children may be excused from classroom during reading); Engel (state-drafted school prayer); Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948) ("release time" program for religious instruction on public school grounds; nonparticipating students kept at school for secular work.).

The extremely limited role of religion in graduation exercise in the form of this invocation and benediction does not constitute a government endorsement of religion as understood in this Court's cases. Neither the texts of the invocation and benediction—in the district court's words, "examples of elegant simplicity, thoughtful content, and sincere citizenship" App. 20a—nor the circumstances of their delivery should be construed as "making adherence to a religion relevant in any way to a person's standing in the political community." County of Allegheny, 492 U.S. at 594, quoting Lynch, 465 U.S. at 687 (O'Connor, J., concurring). The courts below found government endorsement here simply by virtue of the school's failure to censor references to the deity, as its revision of the invocation so unmistakably demonstrates. Such a notion cannot be squared with this Court's contrary view that "schools do not endorse everything they fail to censor." Mergens, 110 S.Ct. at 2372.

In sum, in our constitutional order, such acknowledgements of religion achieve the completely legitimate ends of "solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Lynch, 465 U.S. at 693 (O'Connor, J., concurring). Lemon should not be read, as did the courts below, to prevent Americans from choosing, as they have for two centuries, to use religious expression in such a role.

CONCLUSION

For the foregoing reasons, the judgment of the court of appeals should be reversed.

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Lee v. Weisman

Cite as 112 S.Ct. 3649 (1992)

Robert E. Lee, individually and as Principal of Nathan Bishop Middle School, et al., Petitioners

v.

Daniel Weisman etc.

No. 90-1014.

Argued Nov. 6, 1991.

Decided June 24, 1992.

505 U.S. 577, 120 L.Ed.2d 467

Public school student and her father brought suit seeking permanent injunction to prevent inclusion of invocations and benedictions in form of prayer in graduation ceremonies of city public schools. The United States District Court for the District of Rhode Island, Francis J. Boyle, Chief Judge, 728 F.Supp. 68, granted relief. Appeal was taken. The Court of Appeals for the First Circuit, 908 F.2d 1090, affirmed. Petition for certiorari was granted. The Supreme Court, Justice Kennedy, held that school could not provide for "nonsectarian" prayer to be given by clergyman selected by school.

Affirmed.

Justice Blackmun concurred and filed opinion with which Justice Stevens and Justice O’Connor joined.

Justice Souter concurred and filed opinion, with which Justice Stevens and Justice O’Connor joined.

Justice Scalia dissented and filed opinion with which Chief Justice Rehnquist, Justice White, and Justice Thomas joined.

Syllabus

Principals of public middle and high schools in Providence, Rhode Island, are permitted to invite members of the clergy to give invocations and benedictions at their schools’ graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer such prayers at the graduation ceremony for Deborah Weisman’s class, gave the rabbi a pamphlet containing guidelines for the composition of public prayers at civic ceremonies, and advised him that the prayers should be nonsectarian. Shortly before the ceremony, the District Court denied the motion of respondent Weisman, Deborah’s father, for a temporary restraining order to prohibit school officials from including the prayers in the ceremony. Deborah and her family attended the ceremony, and the prayers were recited. Subsequently , Weisman sought a permanent injunction barring Lee and other petitioners, various Providence public school officials, from inviting clergy to deliver invocations and benediction at future graduations. It appears likely that such prayers will be conducted at Deborah’s high school graduation. The District Court enjoined petitioners from continuing the practice at issue on the ground that it violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.

Held: Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. Pp. 2655-2661.

(a) This Court need not revisit the questions of the definition and scope of the principles governing the extent of permitted accommodation by the State for its citizens’ religious beliefs and practices, for the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here. Thus, the Court will not reconsider its decision in Lemin v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." Lynch v.Donnelly, 465 U.S. 668, 678, 104 S.Ct 1355, 1361, 79 L.Ed.2d 604. P. 2655.

(b) State officials here direct the performance of a formal religious exercise at secondary schools’ promotional and graduation ceremonies. Lee’s decision that prayers should be given and his selection of the religious participant are choices attributable to the State. Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers’ content. That the directions may have been given in a good-faith attempt to make the prayers acceptable to most persons does not resolve the dilemma caused by the school’s involvement. since the government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds. Pp. 2655-2657.

(c) The establishment Clause was inspired by the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. Prayer exercises in elementary and secondary schools carry a particular risk of indirect coercion.

Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601; School Dist. Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844. The School district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimus character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors’ rights. Pp. 2657-2659.

(d) Petitioners’ argument that the option of not attending the ceremony excuses any inducement or coercion in the ceremony itself is rejected. In this society, high school graduation is one of life’s most significant occasions, and a student is not free to absent herself from the exercise in any real sense of the term "voluntary." Also not dispositive is the contention that prayers are an essential part of these ceremonies because for many persons the occasion would lack meaning without the recognition that human achievements cannot be understood apart from their spiritual essence. This position fails to acknowledge that what for many was a spiritual imperative was for the Weismans religious conformance compelled by the State. It also gives insufficient recognition to the real conflict of conscience faced by a student who would have to choose whether to miss graduation or conform to the state-sponsored practice, in an environment where the risk of compulsion is especially high. Pp. 2659-2660.

(e) Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, which condoned a prayer exercise. Atmosphere at a state legislature’s opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend. Pp. 2660-2661.

908 F.2d 1090 (CA1 1990), affirmed.

Kennedy, J., delivered the opinion of the Court, in which Blackmun, Stevens, O’Connor, and Souter, JJ., joined. Blackmun, J., post, p. 2661, and Souter, J., post, p. 2667, filed concurring opinions, in which Stevens and O’Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C.J., and White and Thomas, JJ., joined, post, p. 2678.

Charles J. Cooper, for petitioners.

Kenneth W. Starr, as amicus curiae, in support of petitioners.

Sandra A. Blanding, for respondent.

Justice Kennedy delivered the opinion of the Court.

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite member of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the officials school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.

I

A

Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with "inclusiveness and sensitivity," though they acknowledge that "[p]rayer of any kind may be inappropriate on some civic occasions." App. 20-21. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Agreed Statement of Facts ¶ 17, id., at 13.

Rabbi Gutterman’s prayers were as follows:

"Invocation

"God of the Free, Hope of the Brave:"For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it."For the liberty of America, we thank You. May these new graduates grow up to guard it."For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust."For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. "May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

Amen"

"Benediction

"Oh God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. "Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. "The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. "We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.

Amen"

Id., at 22-23.

The record in this case is sparse in many respects, and we are unfamiliar with any fixed custom or practice at middle school graduations, referred to by the school district as "promotional exercises." We are not so constrained with reference to high schools, however. High school graduations are such integral part of American cultural life that we can with confidence describe their customary features confirmed by aspects of the record and by the parties’ representations at oral argument. In the Providence school system, most high school graduation ceremonies are conducted away from the school, while most middle school ceremonies are held on school premises. Classical High School, which Deborah now attends, has conducted its graduation ceremonies on school premises. Agreed Statement of Facts ¶ 37, id., at 17. The parties stipulate that attendance at graduation ceremonies is voluntary. Agreed Statement of Facts ¶ 41, id., at 18. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy’s participation in any high school graduation exercise would be about what it was at Deborah’s middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the rabbi’s prayers. Tr. of Oral Arg. 38. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the rabbi’s two presentation must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them.

The school board (and the United states, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman’s case.

Deborah’s graduation was held on the premise of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony. Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman’s taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation. Agreed Statements of Facts ¶ 38, App. 17.

The case was submitted on stipulated facts. The District Court held that petitioners’ practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. 728 F.Supp. 68 (1990). The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973). The District Court held petitioners’ actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action "creates an identification of the state with a religion, or with religion in general," 728 F.Supp. at 71, or when "the effect of the governmental action is to endorse one religion over another, or to endorse one religion in general." Id., at 72. The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F.2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh we upheld the constitutionality of the Nebraska State Legislature’s practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit’s reasoning because it believed that Marsh was a narrow decision, "limited to the unique situation of legislative prayer," and did not have any relevance to school prayer cases. 728 F.Supp., at 74

On appeal, the United States Court of Appeals for the First Circuit affirmed. The majority opinion by Judge Torruella adopted the opinion in which he decided that the practices challenged here violated all three parts of the Lemon test. Judge Bownes went on to agree with the District Court that Marsh had no application to school prayer cases and that the Stein decision was flawed. He concluded by suggesting that under Establishment Clause rules no prayer, even one excluding any mention of the Deity, could be offered at a public school graduation ceremony. 908 F.2d, at 1090-1097. Judge Campbell dissented, on the basis of Marsh and Stein. He reasoned that if the prayers delivered were nonsectarian, and if school officials ensured that persons representing a variety of beliefs and ethical systems were invited to present invocations and benedictions, there was no violation of the Establishment Clause. 908 F.2d, at 1099. We granted certiorari, 499 U.S. 918, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991), and now affirm.

II

These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.

[1] This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and the suffices to determine the question before us.

[2,3] The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." Lynch, supra, at 677, 104 S.Ct., at 1361; see also County of Allegheny, supra, 492 U.S., at 591, 109 S.Ct., at 3100, quoting Everson v. Board of Ed. of Ewing, 33 U.S. 1, 15-16, 67 S.Ct. 504, 511-512, 91 L.Ed. 711 (1947). The State’s involvement in the school prayers challenged today violates these central principles.

[4] That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent.

Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State’s attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, see infra, at 2659, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation.

The State’s role did not end with the decision to include a prayer and with choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions," and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State’s displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government," Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 1264, 8 L.Ed.2d 601 (1962), and that is what the school officials attempted to do.

Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school’s explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend.

We asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. Stein, 822 F.2d, at 1409; 908 F.2d 1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case below); see also Note, Civil Religion and the Establishment Clause, 95 Yale L.J. 1237 (1986). If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either prescribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worships is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: "[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973).

These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been good-faith attempt to recognize the common aspects of religious and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, 370 U.S., at 425, 82 S.Ct., at 1264. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.

The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not.

[5] To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution.

The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. Meese v. Keene, 481 U.S. 465, 480-481, 107 S.Ct. 1862, 1870-1871, 95 L.Ed.2d 415 (1987); see also Keller v. State Bar of California, 496 U.S. 1, 10-11, 110 S.Ct. 2228, 2234-2235, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. Buckley v. Valeo, 424 U.S. 1, 92-93, and n. 127, 96 S.Ct. 612, 669-670, and n. 127, 46 L.Ed.2d 659 (1976) (per curiam). The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.

The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizen are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves.

[6] As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. See, e.g. School Dist. of Abington v. Schempp, 374 U.S. 203, 307, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 261-262, 110 S.Ct. 2356, 2377-2378, 110 L.Ed.2d 191 (1990) (Kennedy, J., concurring). Our decisions in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular may not be limited to the context of schools, but it is mot pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S., at 661, 109 S.Ct., at 3137 (Kennedy, J., concurring in judgment in part and dissenting in part). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

We need to look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing of remaining silent can signify adherence to a view or simple respect for the view of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brittain, Adolescent Choices and Parenr-Peer Cross-Pressures, 28 Am.Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality of Peer Pressure in Adolescence 451 (Dec.1985); Brown, Clasen & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimus character. To do so would be an affront to the rabbi who offered them all to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objector’s rights. That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. Seesupra, 2658.

[7] There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Agreed Statement of Facts ¶ 41, App. 18. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term "voluntary," for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.

The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.

The Government’s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government’s position is that with regard to civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. See supra, at 2658-2659. Just as in Engel v. Vitale, 370 U.S., at 430, 82 S.Ct., at 1266, and School Dist. of Abington v. Schempp, 374 U.S., at 224-225, 83 S.Ct., at 1572-1573, where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at the graduation ceremonies is voluntary in a legal sense does not save the religious exercise.

Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The considerations we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U.S., at 792, 103 S.Ct., at 3336. Today’s case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts Marsh and the case now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us to distinguish the public school context.

We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are specially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.

Our jurisprudence in this area is of necessity one of line-drawing, of determining at what point a dissenter’s rights of religious freedom are infringed by the State.

"The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve that state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." School Dist. of Abington v. Schempp, supra, 374 U.S., at 308, 83 S.Ct., at 1616 (Goldberg, J., concurring).

Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents many faiths that there must be a place in the student’s life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See School Dist. of Abington, supra, at 306, 83 S.Ct., at 1615 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Board of Ed. of Westside Community Schools of (Dist. 66) v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony, in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.

For the reasons we have stated, the judgment of the Court of Appeals is

Affirmed.

Justice Blackmun, with whom Justice Stevens and Justice O’Connor join, concurring.

Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court.

I

This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of E. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Relying on this history of the Clause, and Court’s prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: Neither a State nor the Federal Government can pass laws which aid one religion, and all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa. "In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State,’ " Everson, 330 U.S., at 16, 67 S.Ct., at 511 (quoting Reynolds v.United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1879)). The dissenters agreed: "The Amendment’s purpose . . . was to created a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." 330 U.S., at 31-32, 67 S.Ct., at 519-520 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).

In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country,’ " Id., at 422, 82 S.Ct., at 1262. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power of prestige of the government to control, support, or influence the religious beliefs and practices of the American people. Although the prayer was "denominationally neutral" and "its observance on the part of the students [was] voluntary," id., at 430, 82 S.Ct., at 1266, the Court found that it violated this essential precept of the Establishment Clause.

A year later, the Court again invalidated government-sponsored prayer in public schools in Schools Dist. of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord’s Prayer, or both. After a thorough review of the Court’s prior Establishment Clause cases, the Court concluded:

"[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment exceeds the scope of legislative power as circumscribed by the Constitution." Id., at 222, 83 S.Ct., at 1571.

Because the schools’ opening exercises were govenment-sponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id., 223-224, 83 S.Ct., at 1572-1573.

Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government "may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). " ‘If [the purpose or primary effect] is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution,’ " Id., at 107, 89 S.Ct., at 1571). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it.

In 1971, Chief Justice Burger reviewed the Court’s past decision and found: "Three . . . tests may be gleaned from our cases." Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111. In order for a statute to survive an Establishment Clause challenge, "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with religion." Id., at 612-613, 91 S.Ct., at 2111 (internal quotation marks and citations omitted). After Lemon, the Court continued to rely on these principles in resolving Establishment Clause disputes.

Application of these principles to the facts of this case is straightforward. There can be "no doubt" that the "invocation of God’s blessings" delivered at Nathan Bishop Middle School "is a religious activity." Engel, 370 U.S., at 424, 82 S.Ct., at 1263. In the words of Engel, the Rabbi’s prayer "is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious." Ibid. The question then is whether the government has "plac[ed] its official stamp of approval" on the prayer. Id., at 429, 82 S.Ct., at 1266. As the Court ably demonstrates, when the government "compose[s] official prayers," id., at 425, 82 S.Ct., at 1264, selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised and given by school officials, and pressures students to attend and participate in the prayer, there can be no doubt that the government is advancing and promoting religion. As our prior decisions teach us, it is this that the Constitution prohibits.

II

I join the Court’s opinion today because I find nothing in it inconsistent with the essential precepts of the Establishment Clause developed in our precedents. The Court holds that the graduation prayer is unconstitutional because of the State "in effect required participation in a religious exercise." Ante, at 2659. Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion.

But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. SeeSchempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring). The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion. See, e.g., id., at 1575 (Douglas, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 72, 105 S.Ct. 2479, 24498, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring in judgment) ("The decisions [in Engel and Schempp] acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that government was sponsoring a manifestly religious exercise" (citation omitted)); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 786, 93 S.Ct. 2955, 2972, 37 L.Ed.2d 948 (1973) ("[P]roof of coercion . . . [is] not a necessary element of any claim under the Establishment Clause proscribes public schools from "conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred," County of Allegheny v, American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 593, 109 S.Ct., 3086, 3101, 106 L.Ed.2d 472 (1989) (internal quotation marks omitted; emphasis in original), even if the schools do not actually "impos[e] pressure upon a student to participate in a religious activity." Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 261, 110 S.Ct. 2356, 2378, 110 L.Ed.2d 191 (1990) (Kennedy, J., concurring in part and concurring in judgment).

The scope of the Establishment Clause’s prohibition developed in our case law derives from the Clause’s purposes. The First Amendment encompasses two distinct guarantees—the government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof—both with the common purpose of securing religious liberty. Through vigorous enforcement of both Clauses, we "promote and assure the fullest possible scope of religious liberty and tolerance for all and . . . nuture the conditions which secure the best hope of attainment of that end." Schempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring).

There is no doubt that attempts to aid religion through government coercion jeopardize freedom of conscience. Even subtle pressure diminishes the right of each individual to choose voluntarily what to believe. Representative Carroll explained during congressional debate over the Establishment Clause: "[T]he rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand." 1 Annals of Cogn. 757 (1789).

Our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that "the fullest possible scope of religious liberty," Schempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring), entails more than freedom from coercion. The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious community—both essential to safeguarding religious liberty. "Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, be keeping their respective functions entirely separate." Religious Liberty, in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885) (Chief Justice of the Commonwealth of Pennsylvania).

The mixing of government and religion can be at threat to free government, even if no one is forced to participate. When the government put its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some. Only "[a]nguish, hardship and bitter strife" result "when zealous religious groups struggl[e] with one another to obtain the Government’s stamp of approval." Engel, 370 U.S., at 429, 82 S.Ct., at 1266; see also Lemon, 403 U.S., at 622-623, 91 S.Ct., at 2115-2116; Aguilar v. Felton, 473 U.S. 402, 416, 105 S.Ct. 3232, 3239, 87 L.Ed.2d 290 (1985) (Powell, J., concurring). Such a struggle can "strain a political system to the breaking point." Walz v. Tax Comm’n of New York City, 397 U.S. 664, 694, 90 S.Ct. 1409, 1424, 25 L.Ed.2d 697. (1970) (opinion) of Harland, J.).

When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it "transforms rational debate into theological decree." Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but rules of a higher authority who beyond reproach.

Madison warned that government officials who would use religious authority to pursue secular ends "exceeds the commission from which they derive their authority and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves." Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 300 (S. Padover ed. 1953). Democratic government will not last long when proclamation replaces persuasions the medium of political exchange.

Likewise, we have recognized that "[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment]." Id., at 309. To "make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary," Zorach v. Clauson, 343 U.S. 306, 313 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952), the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being "taint[ed] . . . with a corrosive secularism." School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267 (1985). The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation. Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to "flourish according to the zeal of its adherents and the appeal of its dogma." Zorach, 343 U.S., at 313, 72 S.Ct., at 683.

It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.

I remained convinced that our jurisprudence is not misguided, and that it requires the decision reached by the Court today. Accordingly, I join the Court in affirming the judgment of the Court of Appeals.

Justice Souter, with whom Justice Stevens and Justice O’Connor join, concurring.

I join the whole of the Court’s opinion, and fully agreed that prayers at public school graduation ceremonies indirectly coerce religious observance. I write separately nonetheless on two issues of Establishment Clause analysis that underlie my independent resolution of this case: whether the Clause applies to governmental practices that do not favor one religion or denomination over others, and whether state coercion of religious conformity, over and above state endorsement of religious exercise or belief, is a necessary element of an Establishment Clause violation.

Forty-five years, ago, this Court announced a basic principle of constitutional law from which it has not strayed: the Establishment Clause forbids not only state practices that "aid one religion . . . or prefer one religion over another," but also those that "aid all religions." Everson v. Board of Ed. of Ewing, 330 U.S. 1, 26, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). Today we reaffirm that principle, holding that the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically theistic prayers where it could not sponsor sectarian ones. we hold true to a line of precedent from which there is no adequate historical case to depart.

A

Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others. Thus, in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), we held that the public schools may not subject their students to readings of any prayer, however "denominationally neutral." Id., at 430, 82 S.Ct., at 1266. More recently, in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), we held that an Alabama moment-of-silence statute passed for the sole purpose of "returning voluntary prayer to public schools," id., at 57, 105 S.Ct., at 2490, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. We said that "when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Id., at 52-53, 105 S.Ct., at 2487-2488. This conclusion, we held,

"deprives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among ‘religions’—to encompass intolerance of the disbeliever and the uncertain." Id., at 53-54, 105 S.Ct., at 2488 (footnotes omitted).

Likewise, in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1(1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds "effectively endorses religious belief." Id ., at 17, 109 S.Ct., at 901 (plurality opinion); see id., at 28, 109 S.Ct., at 907 (Blackmun, J., concurring in judgment) ("A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable"). And in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), we struck down a provision of the Maryland Constitution requiring public officials to declare a " ‘belief in the existence of God,’ " id., at 489, 81 S.Ct., at 1680, reasoning that, under the Religion Clauses of the First Amendment, "neither a State nor the Federal Government . . . can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers . . .," id., at 495, 81 S.Ct., at 1683. See also Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion"); School Dist. of Abington v. Schempp, 374 U.S. 203, 216, 83 S.Ct. 1560, 1568, 10 L.Ed.2d 844 (1963) ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id., at 319-320, 83 S.Ct., at 1622, (Stewart, J., dissenting) (the Clause applies "to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker").

Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it. SeeArizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984); Payne v. Tennessee, 501 U.S., 808, 842, 111 S.Ct. 2597, 2617-2618, 115 L.Ed.2d 720 (1991) (Souter, J., concurring).

Some have challenged this precedent by reading the Establishment Clause to permit "nonpreferential" state promotion of religion. The challengers argue that, as originally understood by the Framers. "[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion." Wallace, supra, at 106, 105 S.Ct., at 2515 (Rehnquist, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause’s textual development a more powerful argument supporting the Court’s jurisprudence following Everson.

When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that "[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 434 (1789). Madison’s language did not last long. It was sent to a Select Committee of the House, which, without explanation, changed it to read that "no religion shall be established by law, nor shall the equal rights of conscience be fringed." Id., at 729. Thence the proposal went to the Committee of the Whole, which was in turn dissatisfied with the Select Committee’s language and adopted and alternative proposed by Samuel Livermore of New Hampshire: "Congress shall make no laws touching religion, or infringing the rights of conscience." See id., 731. Livermore’s proposal would have forbidden laws having anything to do with religion and was thus not only far broader than Madison’s version, but broader even than the scope of the Establishment Clause was we now understand it. See, e.g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (upholding legislative exemption of religious groups from certain obligations under civil rights laws).

The house rewrote the amendment once before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: "Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." 1 Documentary History of the First Federal Congress of the United States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1 Annals of Cong. 765 (1789). Perhaps, on further reflection, the Representatives had thought Livermore’s proposal too expansive, or perhaps, as one historian has suggested, they had simply worried that his language would "satisfy the demands of those who wanted something said specifically against establishments of religion." L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). We do not know; what we do know is that the House rejected the Select Committee’s version, which arguably ensured only that "no religion" enjoyed an official preference over others, an deliberately chose instead a prohibition extending to laws establishing "religion" in general.

The sequence of the Senate’s treatment of this House proposal, and the House’s response to the Senate, confirm that the Framers meant the Establishment Clause’s prohibition to encompass nonpreferential aid to religion. In September 1789, the Senate considered a number of provisions that would have permitted such aid, and ultimately it adopted one of them. First, it briefly entertained this language: "Congress shall make no law establishing One Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed." See 1 Documentary History, supra, at 151 (Senate Journal); id., at 136. After rejecting two minor amendments to that proposal, see ibid., the Senate dropped it altogether and chose a provision identical to the House’s proposal, but without the clause protecting the "rights of conscience," ibid. With no record of the Senate debates, we cannot know what prompted these changes, but the record does tell us that, six days later, the Senate went half circle and adopted its narrowest language yet: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." Id., at 166. The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed.

Though it accepted much of the Senate’s work on the Bill of Rights, the House rejected the Senate’s version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general.

Implicit in their choice is the distinction between preferential and nonpreferential establishments, which the weight of evidence suggests the Framers appreciated. See, e.g., Laycock, "Nonpreferential" Aid 902-906; Levy 91-119. But cf. T. Curry, The First Freedoms 208-222 (1986). Of particular note, the Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. See generally Levy 1-62. The Virginia statute for religious freedom, written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever," including his own. Act for Establishing Religious Freedom (1785), in 5 The Founders’ Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987). Forcing a citizen to support even his own church would, among other things, deny "the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind." Id., at 84. In general, Madison later added, "religion & Govt. will both exist in greater purity, the less they are mixed together." Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders’ Constitution, at 105, 106.

What we thus know of the Framers’ experience underscores the observation of one prominent commentator, that confining the Establishment Clause to a prohibition on preferential aid "requires a premise that the Framers were extraordinarily bad drafters—that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the choice of language." Laycock, "Nonpreferential" Aid 882-883; see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 647-648, 109 S.Ct. 3086, 3129-3130, 106 L.Ed.2d 472 (1989) (opinion of Stevens, J.). We must presume, since there is no conclusive evidence to the contrary, that the Framers embraced the significance of their textual judgment. Thus, on balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.

While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialist requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.

This case is nicely in point. Since the nonpreferentiality of a prayer must be judged by it text, Justice Blackmun pertinently observes, ante, at 2664, n. 5, that Rabbi Gutteman drew his exhortation " ‘[t]o do justly, to love mercy, to walk humbly’ " straight from the King James version of Micah, ch. 6, v. 8. At some undefinable point, the similarities between a state-sponsored prayer and the sacred text of a specific religion would so closely identify the former with the latter that even a nonpreferentialist would have to concede a breach of the Establishment Clause. And even if Micah’s thought is sufficiently generic for most believers, it still embodies a straightforwardly theistic premise. Many Americans who consider themselves religious are not theistic; some like several of the Framers, are deists who would question Rabbi Gutterman’s plea for divine advancement of the country’s political and moral good. Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government’s preference for theistic over nontheistic religion is constitutional.

Nor does it solve the problem to say that the State should promote a "diversity" of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious Presidential proclamations, the practice of sponsoring religious messages tends, over time, "to narrow the recommendation to the standard of the predominant sect." Madison’s "Detached Memoranda," 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison’s "Detached Memoranda"). We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with most votes.

II

Petitioners rest most of their argument on a theory that, whether or not the Establishment Clause permits extensive nonsectarian support for religion, does not forbid the state to sponsor affirmations of religious belief that coerce neither support for religion nor participation in religious observance. I appreciate the force of some of the arguments supporting a "coercion" analysis of the Clause. See generally County of Allegheny, supra, 492 U.S., at 655-679, 109 S.Ct., at 3134-3146 (opinion of Kennedy, J.); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary Rev. 933 (1986). But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. Nor does the extratextual evidence of original meaning stand so unequivocally at odds with the textual premise inherent in existing precedent that we should fundamentally reconsider our course.

A

Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. For example, in County of Allegheny, supra, we forbade the prominent display of a nativity scene on public property; without contesting the dissent’s observation that the creche coerced no one into accepting or supporting whatever message it proclaimed, five Members of the Court found its display unconstitutional as a state endorsement of Christianity. Id., at 589-594, 598-602, 109 S.Ct., at 3098-3101, 3103-3105. Likewise, in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), we struck down a state law requiring a moment of silence in public classrooms not because the statute coerced students to participate in prayer (for it did not), but because the manner of its enactment "convey[ed] a message of state approval of prayer activities in the public schools." Id., 61, 105, S.Ct. at 2492; see also id., at 67-84, 105 S.Ct., at 2495-2504 (O’Connor, J., concurring in judgment). Cf. Engel v. Vitale, 370 U.S., at 431, 82 S.Ct., at 1267 ("When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that").

In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), we invalidated a state law that barred the teaching of Darwin’s theory of evolution because, even though the statute obviously did not coerce anyone to support religion or participate in any religious purpose. See also Edwards v. Aguillard, 482 U.S. 578 593, 107 S.Ct. 2573 2583, 96 LEd.2d 510 (1987) (statute requiring instruction in "creation science" "endorses religion in violation of the First Amendment"). And in School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), we invalidated a program whereby the State sent public school teachers to parochial schools to instruct students on ostensibly nonreligious matters; while the scheme clearly did not coerce anyone to receive or subsidize religious instruction, we held it invalid because, among other things, "[t]he symbolic union of church and state inherent in the [program] threatens to convey a message of state support for religion to students and to the general public." Id., at 397, 105 S.Ct., at 3230; see also Texas Monthly, Inc. v. Bullock, 489 U.S., at 17, 109 S.Ct., at 901 (plurality opinion) (tax exemption benefiting only religious publications "effectively endorses religious belief"); id., at 28, 109 S.Ct., at 907 (Blackmun, J., concurring in judgment) (exemption unconstitutional because State "engaged in preferential support for the communication of religious messages").

Our precedents may not always have drawn perfectly straight lines. They simply cannot, however, support the position that a showing of coercion is necessary to a successful Establishment Clause claim.

B

Like the provisions about "due"process and "unreasonable" searches and seizures, the constitutional language forbidding laws "respecting and establishment of religion" is not pellucid. But virtually everyone acknowledges that the Clause bans more than formal establishments of religion in the traditional sense, that is, massive state support for religion through, among other means, comprehensive schemes of taxation. See generally Levy 1-62 (discussing such establishments in the Colonies and early States). This much follows from the Framers’ explicit rejection of simpler provisions prohibiting either the establishment of a religion of laws "establishing religion" in favor of the broader ban on laws "respecting an establishment of religion." See supra, at 2668-2669.

While some argue that the Framers added the word "respecting" simply to foreclose federal interference with state establishments of religion, see, e.g., Amar, The Bill of Right as a Constitution, 100 Yale L.J. 1131, 1157 (1991), the language sweeps more broadly than that. In Madison’s words, the Clause in its final form forbids "everything like" a national religious establishment, see Madison’s "Detached Memoranda" 558, and, after incorporation, it forbids "everything like" a state religious establishment. Cf. County of Allegheny, 492 U.S., at 649, 109 S.Ct., at 3130 (opinion of Stevens, J.). The sweep is broad enough that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional "establishments." Madison’s "Detached Memoranda" 558-559; see infra, at 2675, and n. 6.

While petitioners insist that the prohibition extends only to the "coercive" features and incidents of establishment, they cannot easily square that claim with the constitution text. The First Amendment forbids not just laws "respecting an establishment of religion," but also those "prohibiting the free exercise thereof" Yet laws that coerce nonadherents to "support or participate in any religion or its exercise," County of Allegheny, supra, at 659-660, 109 S.Ct., at 3136 (opinion of Kennedy, J.), would virtually by definition violate their right to religious free exercise. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990) (under Free Exercise Clause, "government may not compel affirmation of religious belief"), citing Torcaso v. Watkins, 367 U.S. 488 (1961); see also J. Madison, Memorial and Remonstrance Against Religious Assessments (1785) (compelling support for religious establishments violates "free exercise of Religion"), quoted in 5 The Founders’ Constitution, at 82 , 84. Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity, as petitioners’ counsel essentially conceded at oral argument. Tr. of Oral Arg. 18.

Our cases presuppose as much; as we said in School Dist. of Abington, "[t]he distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended." 374 U.S., at 223, 83 S.Ct., at 1572; see also Laycock, "Nonpreferential" Aid 922 ("If coercion is . . . an element of the establishment clause, establishment adds nothing to free exercise"). While one may argue that the Framers meant the Establishment Clause simply to ornament the First Amendment, cf. T. Curry, The First Freedoms 216-217 (1986), that must be a reading of last resort. Without compelling evidence to the contrary, we should presume that the Framers meant the Clause to stand for something more than petitioners attribute to it.

Petitioners argue from the political setting in which the Establishment Clause was framed, and from the Framers’ own political practices following ratification, that government may constitutionally endorse religion so long as it does not coerce religious conformity. The setting and the practices warrant canvassing, but while they yield some evidence for petitioners’ argument, they do not reveal the degree of consensus in early constitutional thought that would raise a threat to stare decisis by challenging the presumption that the Establishment Clause adds something to the Free Exercise Clause that follows it.

The Framers adopted the Religion Clauses in response to a long tradition of coercive statute support for religion, particularly in the form of tax assessments, but their special antipathy to religious coercion did not exhaust their hostility to the features and incidents of establishment. Indeed, Jefferson and Madison opposed any political appropriation of religion, see infra, at 2674-2676, and, even when challenging the hated assessments, they did not always tempers their rhetoric with distinctions between coercive and noncercive state action. When, for example, Madison criticized Virginia’s general assessment bill, he invoked principles antithetical to all state efforts to promote religion. An assessment, he wrote, is improper not simply because it forces people to donate "three pence" to religion, but, more broadly, because "it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority." J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders’ Constitution, at 83. Madison saw that, even without the tax collector’s participation, an official endorsement of religion can impair religious liberty.

Petitioners contend that because the early Presidents included religious messages in their inaugural and Thanksgiving Day addresses, the Framers could not have meant the Establishment Clause to forbid noncoercive state endorsement of religion. The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners’ claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders’ Constitution, at 98. In explaining his views to the Reverend Samuel Miller, Jefferson effectively anticipated, and rejected, petitioners’ position:

"[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded from them. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard to; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion." Id., at 98-99 (emphasis in original).

By condemning such noncoercive state practices that, in "recommending" the majority faith, demean religious dissenters "in public opinion," Jefferson necessarily condemned what, in modern terms, we call official endorsement of religion. He accordingly construed the Establishment Clause to forbid not simply state coercion, but also state endorsement, of religious belief and observance. And if he opposed impersonal Presidential address for inflicting "proscription in public opinion," all the more would he have condemned less diffuse expressions of official endorsement.

During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. See Madison’s "Detached Memoranda" 562, and n. 54. Upon retirement, in an essay condemning as an unconstitutional "establishment" the use of public money to support congressional and military chaplains, id., at 558-560, he concluded that "[r]eligious proclamations by the Executive recommending thanksgiving & fasts are shoots from the same root with the legislative acts reviewed. Altho’ recommendations only, they imply a religious agency making no part of the trust delegated to political rulers." Id., at 560. Explaining that "[t]he members of a Govt . . . can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities," ibid., he further observed that the state necessarily freights all of its religious messages with political ones: "the idea of policy [is] associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power." Id., at 562 (footnote omitted).

Madison’s failure to keep pace with is principles in the face of congressional pressure cannot erase the principles. He admitted to backsliding, and explained that he had made the content of his wartime proclamations inconsequential enough to mitigate much their impropriety. See ibid.; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders’ Constitution, at 105. While his writings suggest mild variations in his interpretation of the Establishment Clause, Madison was no different in that respect from the rest of his political generation. That he expressed so much doubt about the constitutionally of religious proclamations, however, suggests a brand of separationism stronger even than that embodied in our traditional jurisprudence. So too does his characterization of public subsidies for legislative and military chaplains as unconstitutional "establishments," see supra, at 2675, and n. 6, for the federal courts, however expansive their general view of the Establishment Clause, have upheld both practices. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 LEd.2d 1019 (1983) (legislative chaplains); Katcoff v. Marsh, 755 F.2d 223 (CA2 1985) (military chaplains).

To be sure, the leaders of the young Republic engaged in some of the practices that separationists like Jefferson and Madison criticized. The First Congress did hire institutional chaplains, see Marsh v. Chambers, supra, at 788, 103 S.Ct., at 3334, and Presidents Washington and Adams unapologetically marked days of " ‘public thanksgiving and prayer,’ " see R. Cord, Separation of Church and State 53 (1988). Yet in the face of the separationist dissent, those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them next. "Indeed, by 1787 the provisions of state bills of rights had become what Madison called mere ‘paper parchments’—expressions of the most laudagle sentiments, observed as much in the breach as in practice." Kurland, The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L.Rev. 839, 852 (1986) (footnote omitted). Sometimes the National Constitution fared no better. Ten years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have gut our current First Amendment doctrine to make room for political censorship.

While we may be unable to know for certain what the Framers meant by the Clause, we do know that, around the time of its ratification, a respectable body of opinion supported a considerably broader reading than petitioners urge upon us. This consistency with the textual considerations is enough to preclude fundamentally reexamining our settled law, and I am accordingly left with the task of considering whether the state practice at issue here violates our traditional understanding of the Clause’s proscriptions.

Lee v. Weisman
Supreme Court of the United States
Argued November 6, 1991 Decided June 24, 1992
Full case name	Robert E. Lee, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners v. Daniel Weisman etc.
Citations	505 U.S. 577 (more) 112 S. Ct. 2649; 120 L. Ed. 2d 467; 1990 U.S. LEXIS 4364; 60 U.S.L.W. 4723; 92 Cal. Daily Op. Service 5448; 92 Daily Journal DAR 8669
Prior history	Respondents' motion for temporary restraining order to prevent invocation from being delivered denied, District Court for the District of Rhode Island (1990); Appealed after graduation ceremony, decision reversed, Court of Appeals for the First Circuit (1990)
Holding
Including a clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment.
Court membership
Chief Justice William Rehnquist Associate Justices Byron White · Harry Blackmun John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas
Case opinions
Majority	Kennedy, joined by Blackmun, Stevens, O'Connor, Souter
Concurrence	Blackmun, joined by Stevens, O'Connor
Concurrence	Souter, joined by Stevens, O'Connor
Dissent	Scalia, joined by Rehnquist, White, Thomas
Laws applied
U.S. Const. amend. I

Lee v. Weisman, 505 U.S. 577 (1992),^[1] was a United States Supreme Court decision regarding school prayer. It was the first major school prayer case decided by the Rehnquist Court. It involved prayers led by religious authority figures at public school graduation ceremonies. The Court followed a broad interpretation of the Establishment Clause that had been standard for decades at the nation's highest court, a reaffirmation of the principles of such landmark cases as Engel v. Vitale, 370 U.S. 421 (1962) and Abington v. Schempp, 324 U.S. 203 (1963).

Contents 1 Background 2 Decision 3 See also 4 References 5 Further reading

Background

When the principal of Nathan Bishop Middle School in Providence, Rhode Island, Robert E. Lee, invited a Jewish rabbi to deliver a prayer at the 1989 graduation ceremony of Deborah Weisman, her parents requested a temporary restraining order seeking to bar the rabbi from speaking. When the Rhode Island district court denied the Weismans' motion, the family did attend the graduation ceremony, and the rabbi did deliver a benediction. After the graduation, the Weismans continued their litigation, and won a victory at the First Circuit Court of Appeals. The school district appealed to the U.S. Supreme Court, arguing that the prayer was nonsectarian and was doubly voluntary, as Deborah was free not to stand for the prayer and because participation in the ceremony itself was not required. Arguments were heard on November 6, 1991, and many court watchers thought that Justice Anthony Kennedy, who had been critical of the Court's previous decisions on school prayer, would provide the crucial fifth vote to reverse the lower court's ruling and deal a major blow to the twin separationist pillars of Engel and Abington.

Decision

The 5-4 decision was announced on June 24, 1992. It was a somewhat surprising victory for the Weismans, with Justice Kennedy, far from joining the conservative bloc that favored rolling back restrictions on school prayers, writing the majority opinion that preserved previous Supreme Court precedents that sharply limited the role that religion could play in the nation's public schools. The Blackmun papers reveal that, as in Planned Parenthood v. Casey, 505 U.S. 833 (1992), Kennedy switched his vote during the deliberations, saying that his draft majority opinion upholding the prayer exercise "looked quite wrong." Instead, Kennedy wrote an opinion that, while carefully circumscribed, squarely repudiated the school district's main arguments. He found much wrong with Principal Lee's decision to give the rabbi who was planning to offer the graduation invocation a pamphlet on composing prayers for civic occasions:

"Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, and that is what the school officials attempted to do." 505 U.S. 577, 588 (citation omitted).

Kennedy also noted that the nonsectarian nature of the prayer was no defense, as the Establishment Clause forbade coerced prayers in public schools, not just those representing a specific religious tradition. Addressing the State's contention that attendance at the graduation exercises was voluntary, Kennedy remarked that

"To say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that, in our society and in our culture, high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term "voluntary," for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years." 505 U.S. 577, 595.

Finally, in answering the argument that participation in the prayer was itself voluntary, Kennedy formulated what is now known as the coercion test:

"As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in [Engel] and [Abington] recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy." 505 U.S. 577, 592 (citations omitted).

The coercion test is now used, in addition to the Lemon test and Justice O'Connor's "endorsement or disapproval" test, to determine the constitutionality under the Establishment Clause of certain government actions.

Justice Blackmun's concurrence stressed that "[o]ur decisions have gone beyond prohibiting coercion, however, because the Court has recognized that 'the fullest possible scope of religious liberty,' entails more than freedom from coercion." 505 U.S. 577, 606 (citation omitted). Blackmun emphasized that even if no one was compelled, directly or indirectly, to participate in a state-sponsored religious exercise, the government was still without power to place its imprimatur on any religious activity.

Justice Souter devoted his concurring opinion to a historical analysis rebutting the contention that the government could endorse nonsectarian prayers. He cited the writings of James Madison and pointed to the changing versions of the First Amendment that the First Congress considered as opposed to the version it eventually adopted. Souter, too, took issue with the school district's defense of non-coercive religious exercises, dismissing the position as without precedential authority.

Justice Scalia's dissent argued against the coercion test:

"In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion..." 505 U.S. 577, 632.

Scalia pointed to several historical examples of calling on divine guidance by American Presidents, including Washington's proclamation of the Thanksgiving holiday in 1789 and the inaugural addresses of both Madison and Thomas Jefferson. He disputed the Court's contention that attendance at high school graduation ceremonies was effectively required as part of social norms, and also the conclusion that students were subtly coerced to stand for the rabbi's invocation. In Scalia's view, only official penalties for refusing to support or adhere to a particular religion created an Establishment Clause violation.

A broad reading of the Establishment Clause won out, but it seems to have its greatest current application in a public school context. The Court has ruled against the separationist position in several key funding cases since Lee, including the school voucher case, Zelman v. Simmons-Harris, 536 U.S. 639 (2002). However, a majority of the Court continues to maintain a strict ban on most forms of state-sponsored religious exercises in schools themselves, as evidenced by the 6-3 ruling in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), which struck down student-led prayers before public school football games.

See also

• List of United States Supreme Court cases, volume 505

References

1. ^ 505 U.S. 577 (Full text of the decision courtesy of Findlaw.com)

Further reading

• Irons, P. (1999). A People's History of the Supreme Court. New York: Viking. ISBN 0670870064. 
• Paulsen, Michael Stokes (1992). "Lemon is dead". Case Western Reserve Law Review 43: 795. ISSN 00087254. 

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