Justices Weigh Allowing Prayers At Graduation
Lawyers representing the Bush Administration and a school district in Rhode Island argued before the U.S. Supreme Court last week that the inclusion of prayer at a public-school graduation ceremony is consistent with the nation’s longstanding tradition and should be considered constitutional. They urged the Court to abandon a 20-year-old precedent and establish a new test for evaluating whether a state action violates the U.S. Constitution’s ban on the establishment of religion. During the oral arguments, Solicitor General Kenneth W. Starr emphasized that the American people consider themselves to be "one nation under God."
However, some of the Justices expressed hesitation regarding the idea of allowing prayer at graduation ceremonies, as they have shown a desire to alter the Court’s existing precedent for evaluating cases involving the Establishment Clause of the First Amendment. Sandra A. Blanding, a lawyer representing a family in the Rhode Island district that objected to an invocation and benediction at a middle-school promotion ceremony, urged the Court to maintain its current precedent and affirm the rulings of two lower federal courts that such prayers violate the Constitution. Blanding argued that including a prayer at public-school graduation ceremonies communicates that prayer is an accepted practice and that non-adherents are outsiders who do not belong in the public school system.
Charles J. Cooper, representing the Providence School Committee, argued that if the lower courts’ rulings were correct, then the relatively simple prayer by Rabbi Leslie Gutterman at the 1989 graduation ceremony at Nathan Bishop Middle School in Providence would pale in comparison to the traditional opening prayer given at each sitting of the Supreme Court, in which the marshal declares, "God save the United States and this honorable Court."
Solicitor General Starr contended that prayers at graduation ceremonies are not the type of practices that the Founding Fathers sought to prevent with the Establishment Clause. He likened the prayers to those used to open sessions of Congress or Presidential inaugurations, suggesting that graduation ceremonies are ceremonial events. However, Blanding argued that the public-school setting requires a more thorough constitutional analysis than other examples of civic acknowledgment of a deity. She stated that the Supreme Court Marshal’s invocation of God is more similar to state legislative prayers, which the Court upheld in a 1983 case, than it is to graduation prayer.
The case at hand involves Daniel Weisman, a parent from Providence who found the inclusion of prayers offensive at his eldest daughter’s promotion ceremony in 1986. The Christian minister present asked parents to thank Jesus for their children’s accomplishments. The Weismans, who are Jewish, were deeply upset and sought to have prayers eliminated from future graduation ceremonies. Despite the school’s attempt to appease them by inviting a rabbi to deliver a nonsectarian blessing, Mr. Weisman filed a lawsuit to block the prayers. Ultimately, a federal district judge permitted the 1989 ceremony to proceed but issued an injunction in January 1990 prohibiting prayer at future graduation exercises. This ruling was upheld by the U.S. Court of Appeals for the First Circuit.
The main issue in the case concerns the 1971 precedent that the Supreme Court will consider whether to abandon for evaluating cases involving the Establishment Clause of the First Amendment.
The test has been referred to as a precedent in 29 decisions made by the High Court and countless other rulings made by lower courts, many of which involve education. However, it has become evident in recent years that several Justices are dissatisfied with the test.
Is it a ‘Coercion’ Test?
Two years ago, Justice Anthony M. Kennedy dissented from a 5-to-4 ruling that prohibited the display of a Nativity scene at a courthouse. In his dissent, Kennedy suggested that a significant revision of our Establishment Clause doctrine may be necessary. Supported by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Byron R. White, Kennedy proposed a new test that would allow a government connection to religion unless the state coerced individuals to partake in religious activities. Both the Bush Administration and the Providence school district have proposed this "coercion" test as an alternative to the one outlined in Lemon. Two Justices who were part of the majority in the 1989 creche case, Allegheny County v. A.C.L.U., have since retired – William J. Brennan Jr. and Thurgood Marshall.
Whether Justice Kennedy’s proposed test can now gain the support of the Court, with the addition of David H. Souter and Clarence Thomas, remains to be seen. Justice Souter expressed concern last week regarding the arguments put forth by the Providence schools and the U.S. government. Justice Souter told Mr. Starr that accepting the Justice Department’s argument would create a difficult decision between recognizing the tradition of public acknowledgement of God and upholding the Court’s efforts to keep prayer out of public schools, as established in the 1962 case, Engel v. Vitale. "If Engel is considered valid, we must make a choice," Justice Souter said.
‘A Crucial Moment in Life’
Even Justice Kennedy suggested that graduation prayer might not be considered constitutionally permissible under the new test he supports. In response to Mr. Cooper’s argument that those offended by prayer at graduation could choose not to attend, Justice Kennedy remarked, "In our culture, graduation is a crucial moment in a young person’s life. It is a significant burden to suggest that he or she can decide not to go" if offended by the prayer.
Justice Sandra Day O’Connor asked Mr. Cooper if the government’s proposed "coercion" test would allow a state legislature to establish "a particular religion as the state church," similar to declaring "the bolo tie as the state tie." Both she and Justice Scalia seemed surprised by Mr. Cooper’s response that a state could select an official faith as long as it did not force its citizens to observe it. Mr. Cooper compared this to Congress’s proclamation of the "Year of the Bible" several years ago. "You are trying to say that the only test is coercion, but I don’t think that aligns with our tradition," Justice Scalia remarked. Later, Justice Scalia suggested that he would not differentiate between the school graduation setting and public invocations of God in court or Congress. "It’s people in a country that overwhelmingly believes in God wishing to invoke God’s blessing," he stated. "Why is it suddenly different at a public-school graduation?"
