Lee v. Weisman (1992), Part One

Graduation PrayerGraduation ceremonies provide an interesting dilemma when it comes to church-state separation. They are inherently connected to public schooling and school officials, and participating students are largely accountable to those authorities during the event. At the same time, they often take place outside of school hours and off school grounds, and are in most cases technically voluntary – students need not attend in order to graduate. 

So are they bound by the same restrictions established in Engel and Abington and clarified by Wallace and other subsequent decisions? The short answer is yeah, they pretty much are. 

In 1989, a middle school principle named Robert Lee in Providence, Rhode Island, selected a local Rabbi to deliver prayers at a middle school graduation ceremony – which is apparently a thing in some places. Lee gave the Rabbi a pamphlet called “Guidelines for Civic Occasions,” which provided tips on “inclusiveness and sensitivity” and encouraged “non-sectarian” prayers.

Lee’s intentions were clearly good. The Rabbi followed the protocols. The same basic scenario was repeated annually across the state at both middle and high school events. 

Daniel Weisman, a parent, objected to prayers of any sort being an official part of the ceremony. His concerns were overruled, and the Rabbi delivered a very nice benediction. Weisman took his case to court claiming this amounted to “establishment” and was thus unconstitutional. 

The Federal District Court applied the “Lemon Test” and agreed. The First Circuit Court of Appeals followed suit. Finally, in Lee v. Weisman (1992), the Supreme Court, in a 5-4 decision, agreed – you can’t do that. 

Justice Anthony Kennedy wrote the Majority Opinion. We’ll limit ourselves to a few highlights: 

The school board… argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents… 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…

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… 

The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman (1971). Under that test… 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... 

There it is again – that zany ol’ Lemon Test. We should be getting used to it by now. 

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…

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...

In other words, just as in Wallace v. Jaffree (1985), calling something “voluntary” doesn’t change all of the rules when it comes to minors and government coercion. He’ll return to this theme. 

Justice KennedyKennedy next addresses the suggestion that prohibiting state-sponsored prayer interferes with the “free exercise” of those desiring its inclusion. For those of you just tuning in, the First Amendment opens with not one, but two “freedom of religion” clauses – the “establishment clause” (government can’t do anything to promote or encourage a particular religion) and the “free exercise clause” (government can’t do anything to discourage or limit a particular religion.) Government “neutrality” sounds pretty straightforward, but in practice these two goals are often in tension with one another. 

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 not coerce anyone to support or participate in religion or its exercise… 

The State's involvement in the school prayers challenged today… is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is 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…

An adult representatives of the state made a series of decisions which established required religious ceremonies for minors. That authorities made a good-faith effort to be as inclusive as possible doesn’t negate this reality. 

Here’s a particularly important bit:

The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State… 

Just because you’re being all judicial doesn’t mean you can’t keep it catchy, right?

It must not be forgotten then, that while concern must 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"…

This echoes a theme found in Engel and similar cases since – that government entanglement in religion is not only bad for those of other faiths, but it’s bad for the entangled faith as well. Cooperation between church and secular authority rarely ends well for either church or state. 

Kennedy elaborates on other legalities before addressing one of the bolder arguments made by supporters of government prayer – that the world isn’t always going to cater to your weird beliefs or other druthers, so you’d better get used to it, snowflake. 

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. 

(The actual case in question involves a ‘middle school’ ceremony, but the Court was collectively addressing all varieties of such ceremonies.)

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.

In other words, you could argue this is just part of preparing students to face the world – but you’d be wrong. Or so Kennedy explains:   

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... 

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. 

Let’s untangle that a bit, shall we?

Church State Arm WrestleFree speech embraces the individual trying to persuade or inform the government, and the government reasoning with or compelling the individual. It’s an ongoing back-and-forth, the collective national “discussion” about… everything. It’s essential in a republic that this interaction happen in some form. 

Matters of faith, on the other hand, neither require nor benefit from the government’s approval or cooperation. Government has no religious point of view or agenda of which it must persuade the individual in order to maintain society. It’s essential in a truly free nation that this not happen in any avoidable form. 

You can argue tax policy with your elected representative, and they can explain to you why they’re going to do it their way anyhow. You may not vote for them again, but you still have to pay those taxes. The same system simply doesn’t apply when working out whether baptism requires full immersion or if “speaking in tongues” is a viable way to discern the will of the Holy Spirit. Secular authority has a horrible record when it comes to deciding or regulating such things, and it’s best for everyone if it simply stays as far out of those discussions as possible. 

Kennedy’s opinion has more worth unpacking, including a few passages which provoked a rather colorful bit of dissent from Justice Antonin Scalia. We’ll see what got his robes in such a wad next time.

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