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Published in Print: March 6, 1991, as High Court Asked To Uphold Prayer at Graduation

High Court Asked To Uphold Prayer at Graduation

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Washington--The Bush Administration has urged the U.S. Supreme Court to uphold the constitutionality of nonsectarian prayers at public-school graduations.

In a brief filed Feb. 22, the Justice Department also encouraged the High Court to abolish most, if not all, uses of its 20-year-old, three-prong legal test for the permissibility of religion-related civic practices.

Under the so-called "Lemon test," named after the 1971 case Lemon v. Kurtzman, religion-tinged public activity is allowable only if it has a secular purpose, neither advances nor inhibits religion, and fosters no "excessive" government entanglement in religion.

To explore such issues, Solicitor General Kenneth W. Starr asked the Justices to hear Lee v. Weisman (Case No. 90-1014), in which lower courts prohibited the junior- and senior-high schools of Providence, R.I., from using nondenominational prayers at graduation.

"In our view," Mr. Starr asserted, "the Court should hold that the traditional public acknowledgements of religion at issue here ... do not violate the Establishment Clause because they neither establish any religion nor coerce non-adherents to participate in any religion or religious exercise against their will."

Without taking sides in the dispute, the attorneys general of several states, the National School Boards Association, and the National Association of State Boards of Education also asked the Court to resolve the question of graduation prayer, which has been complicated by conflicting lower-court rulings.

Case History

The Providence case began when Daniel Weisman, the parent of a junior-high student, objected to an invocation and benediction, both delivered by a rabbi, at a 1989 graduation at the school.

In 1990, a federal district court issued an injunction against prayers at graduations at the city's public junior- and senior-high schools. Later that year, the U.S. Court of Appeals for the First Circuit affirmed that ruling.

Mr. Starr argued that ceremonial prayers reflect U.S. traditions.

"With their reference to God," such invocations "merely respect the religious heritage of the community," he said. Other examples include prayers at such occasions as Presidential inaugurations or the opening of legislative sessions, he said.

Indeed, the Supreme Court itself begins daily sessions with the plea that "God save the United States and this honorable court."

The debate centers on the First Amendment, which states in part that "Congress shall make no rule respecting an establishment of religion or prohibiting the free exercise thereof."

For 20 years, the Lemon test has clouded judicial thought, Mr. Starr claimed, and a "Lemon-spawned cacophony is a commonplace among district courts."

Thus, he urged, the court should "jettison the framework" of the Lemon test whenever "the practice under assault is a non-coercive, ceremonial acknowledgment of the heritage of a deeply religious people."

He proposed that, in many cases, reliance on the Lemon test "be replaced by a single, careful inquiry into whether the practice at issue provides direct benefits to a religion in a manner that threatens the establishment of an official church or compels persons to participate in a religion or religious exercise contrary to their consciences."

He and others also noted that commencements only occur once a year, do not involve a classroom teaching setting, and are geared toward families, not just children, and toward students considered mature enough to understand that the school endorses no specific belief.

In seeking Supreme Court review, Providence school officials argued that "graduation invocations and benedictions cannot sensibly be perceived as a real threat to the fundamental values protected by the First Amendment."

Therefore, they said, the rabbi's "references to the deity ... did not pose any real threat of establishing an official religion in Providence, R.I. It is by no means far-fetched, however, that the decisions of the courts below requiring that school officials ... exclude all references to a deity in future graduation ceremonies will send a message of official hostility toward religion."

A Lack of Clarity?

In another brief, the attorneys general of Utah, Idaho, North Dakota, Pennsylvania, and Wyoming explained that some citizens demand prayers at graduations, others just as bitterly oppose them, and "state agencies and school officials are trapped in the middle."

"Without a decisive resolution of the difficult First Amendment issues raised by prayers at public school ceremonies," the brief added, ''the school systems and communities in our states will continue to be rent by disagreement over what the Constitution allows or prohibits, and financially hard-pressed states will have to expend substantial sums relitigating the same issues."

Similarly, the National Association of State Boards of Education argued that a lack of clarity has "created an environment ripe for intimidation" and will prompt "a surrender by harried school officials to special-interest groups."

However, Americans United for Separation of Church and State, an advocacy group that monitors such issues, is wary of calls for Supreme Court action.

"These are sort of perilous times for those concerned about church-state separation," said Joseph Conn, the group's spokesman. "It's clear that this court is quite willing to consider changes in court policy."

"While it may seem relatively minor or obscure," he added, Providence's suit "could be a very important case" in setting precedents.

Even the federal district judge who ruled against Providence originally sounded sympathetic, noting that "those who are anti-prayer thus have been deemed the victors."

"The hard fact is that sometimes we must make decisions we do not like," Judge Francis J. Boyle wrote.

"An unacceptably high number" of young people are troubled, he said. "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."

Vol. 10, Issue 24, Page 24

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