Lee v. Weisman (1992), Part Two

Lee v. Weisman (1992)We’ve been looking at Lee v. Weisman (1992), the Supreme Court case which, in a 5-4 decision, banned school-sponsored prayer at graduation ceremonies and the like. The majority opinion was written by Justice Anthony Kennedy and provoked several scathing dissents. 

Kennedy had already rejected the suggestion that participation in such ceremonies was “voluntary,” thus precluding violation of the “Establishment Clause.” He now revisits the question of whether students participating in the ceremony are being coerced into ceremonial support for beliefs contrary to their own. 

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 or remaining silent can signify adherence to a view or simple respect for the views 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 or remaining silent was an expression 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… 

This didn’t sit well with Justice Scalia, who addressed this reasoning in his dissent. “Dissent” may be too mild a term – it’s really more an eruption of disdain:

The Court declares that students' “attendance and participation… are in a fair and real sense obligatory.” But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure... to stand as a group or, at least, maintain respectful silence” during those prayers…

This assertion - the very linchpin of the Court's opinion - is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters)… 

Is that… sarcasm pouring forth from a pen of the Divine Nine?

The Court's notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined – or would somehow be perceived as having joined in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions” have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence… 

Stuff like this is part of why Scalia’s loss was so devastating, whatever one’s politics. This is a glorious rant. 

But let us assume the very worst, that the nonparticipating graduate is “subtly coerced” ... to stand! …

{M}aintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate - so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally.

Justice ScaliaClearly Scalia and the three other Justices who signed off on this dissent are NOT impressed by the Court’s decision. Their outrage is both palpable and a tad peevish. 

But back to the majority opinion for a moment… 

Kennedy proceeds to address the state’s argument that these are harmless little ceremonial prayers, not enough to constitute “establishment.” He finds this contradicts the state’s own arguments regarding the importance of prayer. Kennedy cycles through several of his points again with renewed vigor before hitting his home stretch with a somewhat defensive denouement too long to reproduce here. Well, except for this bit:

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…

“Look, we have to draw the lines somewhere, OK?! This isn’t an exact science, we’re talking about real people and some rather complicated situations, so just back off, haters!”

OK, maybe that’s over-interpreting his tone. 

Either way, he’s not wrong. A review of related jurisprudence over the previous half-century certainly confirms his suggestion that such lines can be tricky. The Court is seeking balance, which sometimes means a frustrating lack of predictability. 

As suggested earlier, Justice Scalia’s dissent is well-worth reading in full, but we’ll settle for a few brief excerpts, with minimal commentary. But, oh my – Antonin! 

{Today’s opinion} is conspicuously bereft of any reference to history. 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… an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. 

This is the case most likely to be made when pushing one’s own version of faith into the public sphere – tradition and history. It’s Christianity’s strongest claim to why it should be treated differently than other faiths – although they’ll never quite come out and put it that way. It’s effective because there’s truth in it – it’s a mistake to try to tease out every last thread of spirituality in our history and culture for fear we’re not being “neutral” enough. 

(OK, maybe it won’t technically be “minimal” commentary…)  

As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion… Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people…

The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

In case you’re uncertain, he apparently disagrees with the majority opinion a tiny bit.   

The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court's otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people's historic practice, and being as infinitely expandable as the reasons for psychotherapy itself…

Despite the rhetorical spittle flinging everywhere, Scalia concludes with strong, slightly less bitter, words:

The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room… 

No one said they weren’t bitter at all – just that they’re slightly less so than before. 

Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies… One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it…

“Unmistakable clarity” might be a bit of an overstatement. 

The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration – no, an affection – for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. 

Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily… To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

And with that, we move on.

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